Quite belatedly, I have been thinking about the relationship between framing ideologies and the production of regulatory systems. There has been an important focus recently on the effects of governance--the framing instruments and their provisions, that produce effects. But there is somewhat less thinking about the aggregation of these effects on the conceptualization of the object of these effects. A strong impulse is to work backwards--to extrapolate from effects the framing ideologies that give rise to the provisions producing effects. But this sometimes does small justice to the ideologies--the principles and normative frames of reference--from out of which the provisions are conceived and against which they might be judged. These may be found in orienting documents and provisions--preambles, objectives mandates for special procedures, or in the organizing ideologies of the political community in which the project is to be undertaken.
In 2014, the UN Human Rights Council established an Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG) with respect to human rights, and mandated the working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” (Human Rights Council, ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights,’ A/HRC/RES/26/9 (14 July 2014)). The Mandate recommended that the IGWG “to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument” (Human Rights Council, ‘Elaboration’ supra). In line with the Mandate, The UN Human Rights Council directed the newly created IGWG to devote its first two sessions to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument." (M. Espinosa, ‘Report on the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, with the mandate of elaborating an international legally binding instrument,’ HRC 31st Sess, Agenda Item 3, A/HRC/31/50 (5 February 2016)). A second session is forthcoming.
The IGWG has been hard at work. It has heard from a number of important an influential stakeholders. It makes sense, then, at this early point in its Mandate, to consider the ideological parameters within which the discussion of the elaboration of a treaty is to occur. That is, it may be useful to remind oneself, again, about the framework within which the normative, structural and institutional objectives are themselves elaborated. This is necessary, of course, first to ensure coherence in the elaboration process, and as a means of developing those standards against which the work of elaboration may be assessed, and, if possible advanced.
Resolution adopted by the Human Rights Council
26/9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights
The Human Rights Council,Recalling the principles and purposes of the Charter of the United Nations,
Recalling also the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights,
Recalling further the Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986,
Recalling Commission on Human Rights resolution 2005/69 of 20 April 2005, in which the Commission established the mandate of Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, and all previous Human Rights Council resolutions on the issues of human rights and transnational corporations and other business enterprises, including resolutions 8/7 of 18 June 2008 and 17/4 of 16 June 2011,
Bearing in mind the approval of the Guiding Principles on Business and Human Rights by the Human Rights Council in its resolution 17/4,
Taking into account all the work undertaken by the Commission on Human Rights and the Human Rights Council on the question of the responsibilities of transnational corporations and other business enterprises1 with respect to human rights,
Stressing that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations,NOTE 1 “Other business enterprises” denotes all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law
Emphasizing that transnational corporations and other business enterprises have a responsibility to respect human rights
Emphasizing also that civil society actors have an important and legitimate role in promoting corporate social responsibility, and in preventing, mitigating and seeking remedy for the adverse human rights impacts of transnational corporations and other business enterprises,
Acknowledging that transnational corporations and other business enterprises have the capacity to foster economic well-being, development, technological improvement and wealth, as well as causing adverse impacts on human rights,
Bearing in mind the progressive development of this issue,1. Decides to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises;
2. Also decides that the first two sessions of the open-ended intergovernmental working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument, in this regard;
3. Further decides that the Chairperson-Rapporteur of the open-ended intergovernmental working group should prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group on the subject, taking into consideration the discussions held at its first two sessions;4. Decides that the open-ended intergovernmental working group shall hold its first session for five working days in 2015, before the thirtieth session of the Human Rights Council;5. Recommends that the first meeting of the open-ended intergovernmental working group serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument;6. Affirms the importance of providing the open-ended intergovernmental working group with independent expertise and expert advice in order for it to fulfil its mandate;
7. Requests the United Nations High Commissioner for Human Rights to provide the open-ended intergovernmental working group with all the assistance necessary for the effective fulfilment of its mandate;
8. Requests the open-ended intergovernmental working group to submit a report on progress made to the Human Rights Council for consideration at its thirty-first session;9. Decides to continue consideration of this question in conformity with its annual programme of work.37th meeting
26 June 2014
3 [Adopted by a recorded vote of 20 to 14, with 13 abstentions. The voting was as follows:In favour: Algeria, Benin, Burkina Faso, China, Congo, Côte d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russian Federation, South Africa, Venezuela (Bolivarian Republic of), Viet NamAgainst: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom of Great Britain and Northern Ireland, United States of America
Abstaining: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, United Arab Emirates]
The danger of this invitation to elaborate framing principles simultaneously with the elaboration of the provisions of the comprehensive treaty itself is also obvious. That danger is that there will be no framing principles to guide treaty elaboration, and that the provisions themselves will wind up as a relatively unconnected set of provisions which each of the stakeholder participants had the power or strategic ability to embed in the document. The end product, then merely a collection of pet provisions, may do little good and might actually do harm. Embracing the power of legalization is a worthy objective. But producing bad law, and especially bad law at the international level, may do more harm than good.