The governance authority of non-state actors in the business and human rights regime

Abstract

The symposium “Governance Authority in Business and Human Rights” explores the authority of non-state actors in the global business and human rights (BHR) regime. Our point of departure is that the involvement of different public and private actors in the BHR regime rests on their authority as governance actors. This alludes most obviously to companies, but also includes other actors. In this framing paper, we investigate these actors’ governance authority in three steps, which provides insights into the different ways in which their power in the BHR regime is (or is not) legitimated. First, we outline how the multiplication of actors in the BHR regime raises questions and challenges regarding its governance. In the second step, we introduce a concept of governance authority that captures distinctive forms of power and legitimacy, and how they connect to human rights. Third, we discuss how the concept of governance authority can be used to study particular non-state actors in the BHR regime, and how the contributions to this symposium do so. In sum, we discuss avenues for research that disentangle the different types of governance power and legitimacy of multiple actors in the BHR regime to clarify their public and private roles as well as their relevance in BHR governance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This symposium results from the conference “Human Rights Responsibilities beyond the State: Pushing the Boundaries of Public and Private,” hosted by Janne Mende and Anneloes Hoff on June 10–11, 2021 at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. The conference was part of the research project “Business Actors beyond Public and Private: Authority, Legitimacy and Responsibility in the United Nations Human Rights Regime” (funded by the German Research Foundation DFG, project number 398306144) and associated with the Max Planck research group “The Multiplication of Authorities in Global Governance Institutions (MAGGI),” both headed by Janne Mende. A second focus of the conference was on the public-private distinction in the issue area of business and human rights, and this focus is published in the special issue on “Corporate Responsibility for Human Rights beyond the Public-Private Divide” in the Nordic Journal of Human Rights, 40(3), 2022.

2 There are numerous reasons for the continuing gaps in the respect, protection, and fulfillment of human rights, but we focus here on those related to business conduct.

3 For example, von Bogdandy et al. (2017, p. 140) and Zürn (2018) underline the contestation and possible rebuttal of governance authorities’ legitimacy, whereas Hurd (1999, p. 400) and Hall and Biersteker (2002, p. 4) equate legitimate power with authority. Kustermans and Horemans (2022, pp. 207–208) locate the difference between these two strands in the formality of authority.

Additional information

Funding

The paper is based on research that is funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation), project number 398306144, and by the Max Planck Society.

Notes on contributors

Janne Mende

Janne Mende is Senior Research Group Leader at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, where she investigates the governance authority of public and private actors in the United Nations and the European Union. Additionally, she heads research projects dedicated to business and human rights. She has held a position as deputy professor for Transnational Governance at the Technical University of Darmstadt and visiting positions at the WZB—Berlin Social Science Center Research Unit Global Governance, the Graduate Institute of International and Development Studies in Geneva, and the Danish Institute for Human Rights, among others. Her research interests include global norms, global governance, human rights, and international institutions.

Anneloes Hoff

Anneloes Hoff is a legal anthropologist with over six years of research experience in business and human rights. As a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, she worked on the project “Business Actors beyond Public and Private: Authority, Legitimacy and Responsibility in the United Nations Human Rights Regime,” focusing on the evolution and contestation of corporate human rights due diligence. She holds a DPhil and an MPhil in Socio-Legal Studies from the University of Oxford.