Wednesday, April 16, 2014

Harvard Human Rights Journal Symposium 2014: The Future of Business and Human Rights April 17, 2014

(Pix (c) Larry Catá Backer 2014)

 Can businesses protect human rights while protecting their bottom line? What enforcement mechanisms can make this vision a reality? Join advocates, attorneys, scholars, and policymakers in an exciting discussion on the way forward in this topical area of concern.
These are the questions raised by the Harvard Human Rights Law Journal, around which the Journal staff has organized an interesting and timely conference, "The Future of Business and Human Rights." This conference focuses  on the state of the international business and human rights project.  It brings together some of the most important actors in this critical enterprise. I am happy to be part of this conversation.  This post includes the conference program and a brief summary of my remarks organized around the three sets of questions our panel was asked to consider. 

Can businesses protect human rights while protecting their bottom line? What enforcement mechanisms can make this vision a reality? Join advocates, attorneys, scholars, and policymakers in an exciting discussion on the way forward in this topical area of concern. The Harvard Human Rights Journal presents its 2014 Symposium: The Future of Business and Human Rights.

12:00 – 1:00 – Kick-Off Lunch Event: The Alien Tort Statute: In Pursuit of Corporate Accountability (Langdell 272)

On the one year anniversary of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, counsel for petitioners, Paul Hoffman, and Professor Noah Feldman, Harvard Law School, will discuss litigation strategies for holding corporations accountable for human rights violations. Co-sponsored by the American Constitution Society and the Human Rights Program. Lunch will be served.

1:20 – 2:20 – Panel 1: Treaty or Not? Enforcing the UN Principles on Business and Human Rights (Hauser 102)

Panelists: Professor Larry Catá Backer, Penn State Law;
Caroline Rees, President, SHIFT; and
Marco Simons, Legal Director, Earth Rights International

Moderator: Professor Tyler Giannini, Harvard Law School

Panelists will debate the need and desirability, if any, for a treaty to hold corporations accountable for human rights abuses.

2:30 – 3:30 – Panel 2: Friends or Foes? How Businesses Can Protect Human Rights Moving Forward (Hauser 102)

Panelists: David Deisley, Executive Vice President and General Counsel, NovaGold;
John F. Sherman III, General Counsel, Senior Adviser and Secretary, SHIFT and
Arvind Ganesan, Director, Business and Human Rights Division, Human Rights Watch

Moderator: Deval Desai, SJD Candidate, Harvard Law School

Representatives from the private sector and human rights NGOs will discuss the roles of corporations and lawyers in reaching human rights goals, including practical approaches that may be less adversarial and more dynamic than prevailing practices.

4:00 – 5:30 – Wine Reception (Wasserstein Pub)

Join our panelists for drinks, networking, and conversation.


Substance of remarks around questions posed to panelists.
Larry Catá Backer


1)      Overview and your general thoughts on whether a treaty is a good idea and why?  Is there a need?  If there is a need, why (e.g. the GPs are not sufficient to get to accountability, there is a need for hard law, etc.))?   Or why not (e.g. GPs suffice or need more time, gains will be limited, limited value of treaties, particular stakeholder opposition, political opposition, etc.)?  For this segment, it would be great if one of you would volunteer to give a bit of history/context on the treaty debate (i.e. at least cover Ruggie’s general view that treaty was out of reach during his mandate and not worth pursuing at that time)—and recent developments (i.e. Ecuador’s effort).

The recent efforts buy the Ecuadorian state to restart a conversation among states about the value of  a comprehensive business and human rights treaty to replace (or displace) the U.N. Guiding Principles for Business and Human Rights has restarted a long simmering conversation about the "best" ways of advancing the project of creating a sound set of governance regimes for business and human rights.  That conversation, in turn, serves as a proxy for a number of others--from the asymmetries in engagement between developed and developing states, to the role fo non-state actors, principally corporations and civil society organs, in the process that might produce a comprehensive treaty.  There are those who view a treaty with alarm on conceptual as well as practical grounds (it will be impossible to negotiate or there is currently no basis for a quasi-legislative approach). But there are also those who believe, for any number of different and incompatible reasons, that a system grounded in both the state system and in text will overcome perceived deficiencies in the approach adopted in the form of the UN Guiding Principles. 

I take a position somewhere between the extremes. I share the view that a comprehensive treaty to supplant rather than supplement or augment the Guiding Principles is politically and practically premature and would substantially undermine the three pillar framework of the GPs. But I would also agree with John Ruggie that a well targeted treaty of narrow scope may not be a bad idea. And, indeed, the GPs were never meant to cast in permanent form the totality of the global approaches to the governance of issues touching on business and human rights. Professor Ruggie thinks that a treaty targeting gross violations of human rights and the obligations of states and business (perhaps under a complicity rationale) might be suitable matter for a treaty.  This makes sense.  So might treaties  filling in and developing states' obligations under the GP's 1st Pillar.  Beyond that, however, pursuing a treaty objective becomes increasingly problematic.  

The problem lies in the delicate balance within the GP's of existing and emerging governance systems among states and non-state actors, and between national. international and non-state "law." Like every other governance framework articulated through a set of principles, the GPs lend themselves to interpretation, application and gap filling.  But they also construct a multi-level (polycentric) governance universe (e.g., A Conversation About Polycentricity in Governance Systems Beyond the State) in which the state (and its techniques, law internally and treaty externally) necessarily only form a part. That recognition of the fundamental nature of globalization in its regulatory aspects leads to a more open ended approach to remedies, one grounded on a respect for the traditional role of the state in providing individuals with remedial processes that give effect to the substance of human rights transposed into the domestic legal orders of states, but one that also recognizes the crucial role of corporations and other non-state actors in the development of mechanisms for the recognition of remediation of human rights wrongs.

The carefully structured polycentricity at the heart of the GPs (e.g., "Governance Polycentrism--Hierarchy and Order Without Government in Business and Human Rights Regulation") could be substantially affected by any move toward a treaty based regime for business and human rights.  Indeed, it is likely that this unbalancing is precisely an objective of some treaty proponents, especially those suspicious of the role of business and non-state actors in regulation and those whio put little faiuth in what they disparagingly reference as "soft law." e Even if one is careful and even handed, there are certain inevitable effects and governance consequences that ought to caution against too great an exuberance for the idea of treaties as the "cure" for what ails the global human rights project. 

The first involves the choice of augmentation-- text or context. Text proponents privilege the formal element  of the human rights project. For advocates of a treaty approach to progress, statute and treaty are understood as the definitive means of memorializing obligation (and it is a top down approach grounded in the legitimate power of a governmental apparatus). Textual approaches tend to be top-down, and institutional.  They tend to be in the form of command imposed from outside the object of text. Context proponents privilege the functional element of the human rights project.  They might construct a deep system of human rights rules through a common law like exercise of drawing  legal character from application to concrete disputes. Context suggests the role of might be understood as looking toward the third pillar and the processes of a development of law through application (much like the common law or the way that EU law has been contextualized through the jurisprudence of the ECJ). Contextual approaches tend to be bottom-up, social and more organic.  They tend to be bound up in custom and internalized rules. The GPs tend to open a substantial space for the development of the normative structures of business and human rights through context--that, in effect might be an important essence of the human rights due diligence project.  It leaves a space open for text as well--the development of the formal structures of international law is central to the multilateral project of GPs 8-10. A treaty approach necessarily refocuses the business and human rights project to text and may thus unnecessarily narrow the scope of the GPs.

The second involves the nature of fidelity to the GP framework itself. Treaty adherents do not just make a choice of the form through which a government approaches "law making" but also tend to privilege the state duty to protect over the corporate responsibility to respect human rights. Focusing solely or principally on the construction of national and transnational legal mechanisms (through text or context) ignores the transnational nature of globalization and the ways in which regulatory power is now fragmented and exercised to some substantial degree by non-state actors. This is not merely a matter of containing corporate regulatory power--it also touches on the emerging role of non-state actors, usually civil society elements, to effectively engage in the business of developing transnational governance norms around issues of human rights. A treaty based approach would reduce the ability of such actors to effectively engage in such norm building at just the time that such engagement is proving critical to the development and application of global human rights norms.

Lastly, a treaty based approach will likely erode the transnational element of the remedial pillar by hyper focusing on formal state mechanisms (usually judicial) for remediation and an emphasis on Western style notions of the role of courts in vindicating rights and remedying wrongs.  Beyond the usual difficulties (differences in court systems, laws, process and national capacity).  Perversely, a hyper-focus ion the state could make remedies less available to the most vulnerable by increasing the transaction costs of vindicating rights and mitigating human rights wrongs. Access to formal institutions of justice have always been costly for the poorest and most vulnerable segments of a state; these can be far more costly than non-judicial alternatives and take much longer.  In many states, recourse to formal institutions, courts and related facilities, may only exist on paper, especially in conflict zones and in states with weak governance structures.  There is also a much larger issue here--differences in the way in which states understand rights and their remediation.  While many states adhere to Western notions of rights as personal, other important states have come to understand rights as an obligation of states, that is as a communal and administrative duty rather than as an individual right (for example China). 

As a consequence, a well designed treaty might be a positive development in the operationalization of the state duty to protect human rights.  It might also, if really well designed, contribute to international norms  that may be exercised by corporations as they apply these standards in their human rights due diligence.  But it may not be understood to serve as a substitute for the GP.    

2)      Treaty content.  What would a treaty cover?  Would it be a general treaty or one just focused on gross violations?  What duties would it include and on whom?  What are the pros and cons of each approach?  Again, where do you stand on this content debate?  Are there priority areas/rights in your view?

A well designed treaty could successfully accomplish one of four tasks.  First it could refine and broaden the state duty to protect human rights.  Second it could substantially enhance the state duty to provide adequate remedial facilities. Third, it could provide a mechanism for recognizing the autonomy and application of international norms by non-state actors.  Fourth, it could augment the reach of the GPs in specific areas of concentrated interest. 

The first would serve to effectively enhance regulatory coherence--an issue that was quite clearly articulated by the SRSG as he detailed the difficulties of the current systems that produced too much regulatory incoherence among and within states. Thus, for example, a treaty that would define the meaning and extent of the state duty in substantive terms (something already attempted with the corporate responsibility to respect human rights) would be a major step forward.  Thus, for example, a treaty might be developed to compel all state parties to incorporate the GP's human rights due diligence disclosure regimes into the base line securities disclosures for public companies or any company whose securities are traded within that state. Human rights due diligence, then, would be treated like the sort of mandatory financial disclosures already well articulated in corporate law globally. (e.g., From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, Georgetown Journal of International Law, Vol. 39, 2008). Yet even this would be a difficult task precisely because binding international law is not uniform among states. Indeed, the construction of a common law for business and human rights grounded in layers of application in dispute resolution might be as effective an approach.

The second would look toward better integration of the first and third pillars. I have argued for the development of an intergovernmental mechanism for the interpretation and application of the GPs in context--a set of interpretive facilities that would provide national courts and other remedial bodies with a uniform source of interpretation from which they could draw.  A treaty approach would certainly solidify those efforts (e.g. Considering Approaches to Institutionalizing Civil Society's Role in the Business of Human Rights-- A Dialogue on "Implementing the UN’s Guiding Principles on Business and Human Rights: A South-Initiated North-South Dialogue" ).

The third would further the principles of autonomy of governance of non.-state actors already recognized in some of the decisions of the OECD's NCP decisions. This would produce harmonization beyond the state with respect to human rights norms even as states continue to guard their authority to pick and choose those norms for transposition to law internally applied.  Alternatively, the remedial decisions undertaken pursuant to the GPs might be subject to judicial enforcement on a par with arbitration agreements. This would result in a treaty much like the New York Convention (arbitration) that would recognize and enforce  judgments based on second pillar "norms".

The fourth would move along the lines suggested by John Ruggie and others--that is to use a treaty in quite specific areas of consensus among states.  This would not be a gap filling or interpretive role, but one targeting forward movement in the construction of international human rights law.  As the most modest of the approaches it is likely the one that may succeed. An example of this sort of targeted treaty-making might involve creating a uniform approach to veil piercing among groups of related companies and up the global supply chain. Another might be to specify a basic group of human rights that a state could not avoid under the 1st Pillar.

For my taste, a treaty approach would have the greatest impact where it serves to augment the coherence of the state duty to protect human rights and make it easier to develop substantially harmonized understandings of the basic scope of those rights.  Most importantly, the most useful treaty would establish a facility for developing a uniform interpretation of the GPs as applied in the context of disputes.  Even if such a facility, fashioned perhaps along the lines of the OECD National Contact Points, is vested with no binding authority, the creation of such a facility will produce a center around which coherence can develop in the understanding and application of standards for business and state conduct in matters of business and human rights.  

3)      Strategic and political questions about pursuing a treaty: Assuming there was an effort to pursue a treaty (in the short or long term), should it be done through the UN or would something akin to the Ottawa (Landmines) or Oslo (Cluster Munitions) processes be better?  This strategic discussion will probably wrap back to earlier questions probably/discussion, e.g. is this the best use of resources for those working business and human rights right now?  Is there more to be gained from devoting resources to the GPs?  Will a treaty distract from what is being done on the GPs?  Conversely, for those not as happy with the GPs, is a treaty a good place to put energy?  If not a treaty, what alternatives are there?

Questions of strategy are always speculative and may reveal more about the substantive premises of the speculator than the realities of goal accomplishment.  But here is a go: as a UN Human Rights Council "product" it makes sense for the treaty project to go forward there.  Yet that presents substantial practical issues--the politics of the Human Rights Council may impede movement toward an effective treaty. If for no other reason, that this suggests that any treaty making objective from the Human Rights Council be as targeted as possible around a subject with which there is consensus.Yet there is a history here that can be ignored at one's peril.  The disastrous project of the Norms reminds us that the political  issues around a positive law approach to business and human rights may be insurmountable. There is also a danger that the business and human rights treaty process and negotiations can become a proxy for larger and more contentious ideological and power politics battles among states and groups of states with decades of agendas to further. This does not produce any sense of optimism.

Alternatively, and perhaps to better effect, treaty making might parallel the norm and rule processes developed through the OECD's treaty and norm creation processes or through that recently developed for the Financial Stability Board (e.g., "Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order").  In both cases, the treaty specifics would reflect a consensus among the most powerful states, and once transposed into their domestic legal orders, could be incorporated into the domestic orders of other states as these interact with OECD or G20 states. This process has seen some success on the process of harmonizing financial regulation. Additionally these provisions could be incorporated into the loan facilities and capacity building regimes of the World Bank and IMF.  The downside, of course, is that the product of this sort of law-making and governance would continue to reflect the asymmetries of North-South dialogue and engagement. It is also a top down process that would tend to marginalize participation by non-state actors. Yet it would likely be a more timely and effective means of producing a treaty with some likelihood of successful adoption/implementation than the usual intergovernmental route through the U.N. 

In any case I would emphasize that the treaty making process, even one well targeted to issues about which there is substantial consensus among states, could be distracting--pushing actors back to a political discussion that might reduce time and resources that might be better spent on operationalization.  That is particularly true with respect to the state duty to protect human rights which the Working Group is now trying to refine through the State National Action Plan process. Though still a work in progress (e.g., Focusing on the State Duty to Respect Human Rights--The UN Working Group and National Action Plans) the State National Action Plan model might well achieve functionally what years of negotiation might eventually produce formally. Indeed, one of the most troubling aspects of the move toward the focus on treaty is the way in which it tends to marginalize the efforts of the U.N. Working Group.  That would certainly be an unfortunate consequence especially since the Working Group, for all of its flaws and missteps (e.g., The 2nd U.N. Forum on Business and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors), continues to provide the most effective forum for non-state actors desiring to participate in the business and human rights project.

Lastly, treaty making might serve as its highest purpose, not the production of a treaty, but the creation of a space for continued dialogue among states that might have felt excluded from the process of developing the GP process, and particularly its operationalization through the first pillar.  That alone, if properly managed, might serve a useful purpose. The danger here, and quite cynically, is the use of a drawn out process of treaty negotiation to derail the project of business and human rights now represented by the GP.  That manipulative agenda would not serve the human rights project well.

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