I was pleased to be part of that effort. The abstract and introduction to my contribution, "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success," follow.
Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success
LARRY CATÁ BACKER*
ABSTRACT: In June 2014, the UN HRC established an open-ended intergovernmental working group to elaborate a legally binding instrument to regulate the activities of TNCs. This chapter considers what the process of negotiating this instrument may reveal about the state of structuring governance frameworks for business and human rights either through a treaty framework or under the UNGPs. That process reveals substantial normative and conceptual failures, it also suggests some not inconsiderable successes. After setting the context of the debate around the treaty project, Part II considers the normative and structural difficulties of the move toward a comprehensive business and human rights treaty. Part III then considers its benefits, both for the process of developing structures of governance for business and human rights, and its substance. Taken together what may become clear is that even were the move toward a treaty to end in failure, the movement toward more robust governance of the human rights effects of economic activity will emerge stronger.1. Introduction
Is it necessary or advisable to draft a treaty on corporations and human rights? What ought to be the content of that treaty? What ought to be the objectives and implications of such a treaty for enterprises, non-governmental organisations (NGOs), individuals and states? These questions, emerging simultaneously with and in part propelled by the complex transformations that produced economic globalisation, were at the foundation of a decades-long and fruitless effort through the United Nations that started in the 1970s with the unsuccessful quest to produce a Code of Conduct for Transnational Corporations and ended with the failure of the draft UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights in the first years of the 21st century. By 2011, these questions appeared to have been answered as the United Nations Human Rights Council unanimously endorsed what from that time became the UN Guiding Principles for Business and Human Rights (UNGP).
But the UNGP did not prove to be a sufficiently authoritative or comprehensive answer for all stakeholders, key elements of which were not thrilled by events that led to the adoption of the UNGP, and less by the UNGP itself. That discontent was at first internal to the UNGP discussion and discrete, taking definitive form on the eve of the adoption of the UNGP. It became more open and vocal after 2011, and led to substantial mobilisation of political power in the years thereafter as both civil society actors and small and developing states began considering alternatives or supplements to the UNGP and the means to achieve their adoption.
Ironically, the post-endorsement architecture created by the UN Human Rights Council provided a site for advancing and consolidating discontent. The post-UNGP endorsement mechanism is centred on a Working Group. The Working Group is charged, among other things, with bringing states, enterprises, NGOs (and a motley crew of others) together to meet a number of objectives to move the UNGP project forward. But it also became a site for growing criticism of and eventually opposition to the UNGP themselves as the way forward. Within that space, discontent evolved to mobilisation and eventually to the invocation of institutional mechanisms to challenge the primacy of the UNGP as the central element of managing the human rights impacts of economic activity.
Led initially by the members of the UN delegation from Ecuador, and allied eventually with a large collective of NGOs, and states, a movement grew, the purpose of which was to replace the UNGP with a traditional and conventionally drafted multilateral treaty to bind states to a regime of human rights obligations for business enterprises, and through them, to bind such enterprises themselves. By June 2014, three years after it endorsed the UNGP, the UN Human Rights Council moved to establish an open-ended Intergovernmental Working Group (IGWG) to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. Simultaneously, the Human Rights Council indicated its continuing support for the UNGP.
These actions brought into the open long-festering tensions among stakeholders involved in developing governance frameworks to manage the human rights behaviours of enterprises. Its formal manifestation produced a duelling set of resolutions, the first already mentioned proposed by Ecuador and its allies, the other, a resolution drafted by Norway and its allies, supportive of the UNGP and of the role of the Working Group for its embedding within states and business enterprises. But these tensions, lurking from the time of the abandonment of the Norms project, were not merely a repetition; they represented the transformation of those perspectives, now layered atop changing power dynamics brought on by globalisation. The substantive positions of most stakeholders are now quite clear and well developed, and are quite sharply drawn. To some extent, they appear perhaps irreconcilable and touch on now ancient divisions in global political discourse about the nature of law, the role of the state, the character of non-state actors, the fundamental nature of human rights, and the possibility of an ordering or hierarchy among them. These are important debates, though the essential shape of these debates were well established by the fourth quarter of the last century. There has been little real movement in the debate since, and even less possibility of consensus.
Rather than adding to that discourse, this chapter will consider what the process of negotiating the contemplated treaty may reveal about the state of structuring governance frameworks for business and human rights either within the anticipated treaty framework or under the UNGP. For that purpose, I assume that the move towards treaty negotiation is inevitable in some form. I assume further that this move ought to be welcomed, even by those who, like me, view the undertaking as ill conceived, misdirected and doomed to fail, at least in relation to the purpose for which it was created. What such analysis may reveal is that while the move towards the negotiation of a treaty may show substantial normative and conceptual failures, it also suggests some not inconsiderable successes. The process of treaty negotiation is necessary and advisable, not because it will succeed but precisely because, in its failure, it will move the project of creating a coherent structure for business and human rights governance one step closer to reality. This pattern is becoming visible through the very work of the IGWG. Its first two sessions, ‘dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument,’[21 may lay the foundation going forward.
The object of this chapter, then, is to consider what the process of treaty negotiation reveals about the state of structuring governance frameworks for business and human rights. It undertakes this examination within the context of the questions posed since the 1970s and described at the beginning of this introduction – is a treaty necessary, is it advisable, what ought to be included in such a treaty, and what are the implications of that effort? Section 2 considers the normative and structural difficulties of the move towards a comprehensive business and human rights treaty, the reasons why necessity, advisability, content and implications will produce failure. Section 3 then considers the reasons why the process of getting to failure is so necessary and advisable, both for the process of developing structures of governance for business and human rights, and its substance. Taken together, what may become clear is that even were the move towards a treaty to end in failure, the movement towards more robust governance of the human rights effects of economic activity will emerge stronger.
2. The Failures the Treaty Process Reveals
2.1 Let Us Speak First to Necessity
2.2 Let Us The Speak to Advisability
2.3 Let Us Speak to Content
2.4 Let Us Speak to Implications
3. From Out of Failure. . .Small Success; Why the Treaty Process Ought to Embrace Its Destiny
3.1 For States: Moving Toeards Coherence in the State Duty to Protect Human Rights4. Conclusion
3.2 For Markets and Consumers: The Closing of Governance Gaps
3.3 For NGOs: Solidarity and Global Mass Democracy
3.4 For Small and Less Developed States: Solidarity Gains
3.5 For Enterprises: Affecting Business Culture and Strengthening the Autonomy of Business Governance
* My thanks to Angelo Mancini (Penn State JD 2017) for excellent research assistance.
 T Sagafi-nejad and J H Dunning, The UN and Transnational Corporations (Indiana University Press, 2008) pp 89–123.
 See D Weissbrodt and M Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2003) 97(4) American Journal of International Law 901.
 Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (United Nations, New York and Geneva, 2011).
 ‘Critiques of Guiding Principles by Amnesty Intl., Human Rights Watch, FIDH, others – debate with Ruggie, Business and Human Rights Resource Centre’ (Business & Human Rights Resource Centre) > accessed 12.12.2016.
 Amnesty International and others, ‘Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights’ (FIDH, 14.01.2011) >accessed 12.12.2016.
 Human Rights Watch, ‘UN Human Rights Council: Weak Stance on Business Standards: Global Rules Needed, Not Just Guidance’, Human Rights Watch News (16.06.2011) accessed 5.12.2017.
 J G Ruggie, ‘The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty’, Institute for Human Rights and Business (08.07.2014) > accessed 12.12.2016.
 The ‘Working Group on the issue of human rights and transnational corporations and other business enterprises’ was established by the UN Human Rights Council at its 17th Session, UN Human Rights Council, Resolution, Human rights and transnational corporations and other business enterprises, A/HRC/17/4 (06.07.2011) accessed 05.05.2017.
 The tone was set from the first Business and Human Rights Forum. ‘The United Nations Forum on Business and Human Rights is a space for representatives and practitioners from civil society, business, government, international organizations and affected stakeholders to take stock of challenges and discuss ways to move forward on putting into practice the Guiding Principles on Business and Human Rights.’ See ‘Working Group on the issue of human rights and transnational corporations and other business enterprises’, The 4th Annual United Nations Forum on Business and Human Rights: About the Forum, accessed 04.05.2017.
 Ruggie, ‘The Past as Prologue?’, above n 7.
 The draft that emerged was developed by Ecuador and South Africa and signed also by Bolivia, Cuba and Venezuela. See, Human Rights Council, ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, Human Rights Council’, A/HRC/26/L.22/Rev.1 accessed 20.05.2017.
 Discussed in L C Backer, ‘Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law that Might Bind Them All’ (2015) 38(2) Fordham International Law Journal 457.
 Human Rights Council, Resolution 26/22, ¶¶ 10–11, 27.06.2014 accessed 30.05.2017.
 Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), available athttp://www.unhchr.ch/html/menu2/2/55sub/55sub.htm; D Weissbrodt and M Kruger, above note 2. For a sense of the evolution of the critique, see essays in S Deva and D Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, Cambridge University Press, 2013.
 L C Backer, ‘Economic Globalization Ascendant and the Crisis of the State: Four Perspective on the Emerging Ideology of the State in the New Global Order’ (2006) 17 La Raza Law Journal 141 > accessed 12.12.2016.
 J Chaplier, ‘EU engagement critical for adoption of strong business & human rights treaty, says NGO’, Business and Human Rights Resource Centre, 03.09.2015 <http://business-humanrights.org/en/eu-engagement-critical-for-adoption-of-strong-business-human-rights-treaty-says-ngo> accessed 12.12.2016; Joint Civil Society, ‘Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights’ (FIDH, 2011) accessed 11.09.2015.
 J P Doh and T R Guay, ‘Corporate Social Responsibility, Public Policy, and NGO Activism in Europe and the United States: An Institutional-Stakeholder Perspective’ (2006) 43(1) Journal of Management Studies 47.
 Discussed in L C Backer, ‘Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law’ (2006) 37 Columbia Human Rights Law Review 287.
 See Backer, ‘Moving Forward the U.N. Guiding Principles For Business And Human Rights’ above n 13.
 ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights’, above n 11. The first session was described in ‘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’, A/HRC/31/50, 05.02.2016. The second session was reported in ‘Report on the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights’, A/HRC/34/47, 04.01.2017.