And a Treaty to Bind them All—On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, a Preliminary Assessment

 (Pix from Business and Human Rights Resource Center,  Binding treaty: Pros and cons (June 2014))

As the Business and Human Rights Resource Center explained:

At the 26th session of the UN Human Rights Council in Geneva, two resolutions were tabled for adoption by the Council. The first is a resolution drafted by Ecuador and South Africa and signed also by Bolivia, Cuba and Venezuela. It was originally tabled on 19 June, then updated on 24 June. It directs "to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights." The other is a resolution drafted by Norway and supported by 22 other countries from all regions. It was originally tabled on 12 June, then updated on 17 and 23 June. It includes a request that the UN Working Group prepare a report considering, among other things, the benefits and limitations of legally binding instruments. (Business and Human Rights Resource Center,  Binding treaty: Pros and cons (June 2014).

The Ecuadorian Resolution had the support of a broad coalition of civil society actors that had been lobbying with great effort to attain its objectives--the drafting of a comprehensive treaty for business and human rights. On June 26, 2014, the Human Rights Council adopted the  Ecuadorean Resolution by a highly divided vote. It approved the Norwegian Resolution by consensus at the same time.

These actions have produced a storm of activity with partisans and opponents of both resolutions quickly weighing in on the debate.  John Ruggie has spoken quite decisively on the issue.

John G. Ruggie, A UN Business and Human Rights Treaty? An Issues Brief by John G. Ruggie, 28 Jan 2014; A UN Business and Human Rights Treaty Update, 1 May 2014; International Legalization in Business and Human Rights, 11 June 2014. 

Others include those listed below and HERE:

Needs and Options for a New International Instrument in the Field of Business and Human Rights Intl. Commission of Jurists;

A Business and Human Rights Treaty? More immediate actions would make a bigger difference
Salil Tripathi, Institute for Human Rights and Business, 26 June 2014

A Business and Human Rights Treaty? International legalisation as precision tools
John Ruggie (Harvard Univ., former UN Special Representative on business & human rights) for Institute for Human Rights and Business, 13 June 2014

A Business and Human Rights Treaty? We shouldn't be afraid to frighten the horses, Peter Frankental (Amnesty Intl. UK), 10 June 2014

A Business and Human Rights Treaty? Why Activists Should be Worried, Mark Taylor (Fafo Institute for Applied Intl. Studies), 4 Jun 2014

A business and human rights treaty? Smart strategies are needed to close accountability gaps, John Morrison, Institute for Human Rights and Business, 3 Jun 2014

The issues raised by the dueling Resolutions suggest that we are at a crossroads of sorts to determine the future of the business and human rights project. These are certainly important issues with substantial repercussions.  Still, understood within a broader context, the overwrought rhetoric of some protagonists is more distracting than helpful.  A close reading of the treaty proposal in the context within which it is made--and made coherent with the thrust of the current GP based approach to business and human rights--suggests that there is a place for both within the current mandate of the Working Group and that both can be satisfied, if one approaches the issues in an appropriate way.

This post suggests both the approach to analysis and the possibilities for moving forward. Both are possible.  And indeed, the convergence of the projects represented by the Ecuadorian and Norwegian resolutions are needed now if the GP project is to develop vigorously to its intended ends--the amelioration of human rights detrimental actions by states and enterprises (yes states and enterprise).  This essay is part of a larger project that will be published elsewhere (more on that in a later post),  Reactions and comments deeply appreciated.


 

IV. And a Treaty to Bind them All—On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, a Preliminary Assessment.
Larry Catá Backer


At the time of the endorsement of the GPs, John Ruggie, explained that the GPs represented the end of the beginning of the development of an integrated and polycentric system that in the aggregate could produce a coherent framework fro the regulation of the human rights impacting behaviors of enterprises. It was to be centered on states in the area of public law, states were to coordinate their approaches to domestic regulation through the instrumentalities of multilateral engagement through human rights centered international organizations. But societally constituted organizations—enterprises and non-state organizations would also coordinate their governance systems through participation in the construction of customary premises and behavior expectations for human rights impacting behaviors. Thus central to the operationalization of the GPs, and fundamental to internal coherence in positing a complex polycentric governance universe within which the business of human rights would be disciplined, were the international organizations that would serve as the central nexus point for the development of the substantive and procedural norms that would coordinate all these systems.

But a large group of civil society actors had been critical of the thrust of the GPs at the time of their endorsement.[1] They argued that the GPs were critically deficient, and chose the moment of the adoption of the draft GPs in early 2011, as the time to publicly declare their disagreement with the fundamental thrust of the GP project.[2] They threatened that “[u]nless addressed, these gaps will prevent the Guiding Principles from effectively advancing corporate responsibility and accountability for human rights and so may fail to gain widespread acceptance by civil society.”[3] The Joint statement included some of the most influential members of conventional global civil society—those organizations with tremendous global influence, and whose members were deeply embedded within networks of political elites.[4] They tend to be treated as the incarnated manifestation of mass society and in this sense can exercise representative political authority in the national and international planes,[5] though not without criticism.[6]

These civil society actors distilled their critique of the GP project in five overarching categories. The first included a number of failures “provide clear recommendations to States consistent with internationally recognized human rights standards.”[7] The failure was global and to some extent foreshadowed the approach of the current calls for an international business and human rights treaty, especially the emphasis on the GP failure to oblige states to enforce a well described set of international norms against transnational corporations and to change their domestic legal orders to comply. The second faulted the GPs for their failures to “address the governance gaps created by globalization.”[8] This is a curious critique and suggests not so much a failure to understand the thrust of the work of the SRSG Ruggie between 2006 and 2011, as it declares a rejection of the foundational structure of the GPs and their recognition of the importance of societally created governance systems as an important element in gap filling consistent with the logic of globalization and its effects on the distribution of power among state and non-state actors. For these (mostly Western oriented) civil society actors the answer was clear, though appalling from the perspective of history—a mandatory extraterritoriality imposed on powerful states to act as global agents through their national courts to discipline multinationals operating anywhere.[9] More interesting still, these civil society elements sought to use their critique to advance another agenda—the inversion of traditional international law, positing a character of globalization as a global system in which international law was superior to and binding against national law, and in which states had an overarching obligation to apply international law (irrespective it appears to their willingness to accede to them).[10] The third, in a sense inconsistent with the second, demanded the GPs be “clearer on the human rights responsibilities of business enterprises.”[11] But the extent of this independent obligation appeared to focus on the need for these enterprises to consult with indigenous communities beyond any such obligation imposed by states through national law. The fourth, focused on the failures of the GP to provide more robust substantive guidance for a set of particularly vulnerable groups.[12] That the rights and protections of these groups might be the subject of other international treaty and norm making efforts appeared to have little effect on the critique. Rather, the GPs were faulted precisely because they failed to serve as a nodal point of those efforts.[13] The fifth and last set of critiques focused on deficiencies in the remedial pillar of the GPs.[14] Civil society argued that irrespective of national law, international law established a substantial set of rights to remedy that ought to have been more forcefully articulated in the GPs. “Much of the focus of the guidance is on grievance mechanisms, with only a single principle (24) dealing with judicial mechanisms, which are necessarily at the core, albeit not the sole modality, of effective remedies under international law.”[15] The remedial provisions of the GPs were also faulted for their failure to demand states modify their dispute resolution systems to reduce obstacles to effective remedies “with a view to ensuring victims can exercise their right to an effective remedy, including by reducing or eliminating financial barriers to access public justice mechanisms, and by making the functioning and decisions of those mechanisms more effective.”[16]

This focus on the details of civil society grievances is not lightly undertaken. As events in 2014 were to show, these form the basis of the rejection of the GP framework after 2013 (by a broader coalition of civil society actors) and served as a substantive foundation of the business and human rights treaty movement that produced the adoption of a treaty exploration project by the Human Rights Council in June 2014,[17] as well as the countermovement that sought to preserve the GP structure as the foundational framework for business and human rights in the international field.[18] Also striking are the parallels between these objections, and the grounding premises of the previously rejected Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.[19]

Non-governmental organisations (NGOs) championed the Draft Norms for a few key reasons: the promise of legally binding obligations on business, through an international treaty and subsequently national laws; the sweeping obligations on companies expected not only to ‘respect’ human rights, but to ‘promote’, ‘protect’, ‘secure’ and ‘ensure respect’ of human rights; and the monitoring and verification to be provided by international organisations, such as the UN, and national mechanisms. . . . To put it differently, no matter the possible shortcomings of the Norms initial draft in concept or formulation, they would pale in comparison with the importance of kick-starting the process.[20]

The business community and many OECD states had fiercely opposed these Norms and contributed to their abandonment in 2003.[21]

Initially, between 2011 and early 2013, these civil society actors were content to work through the Working Group system set up to manage development of the GP system.[22] However, in the years after 2011, a number of prominent civil society actors began to join together to work to move beyond the GPs, which were increasingly viewed as a failure to protect against the human rights abuses of transnational enterprises, at least as these civil society actors saw it.[23] By 2013 these groups coalesced into a movement to seek multilateral action to take steps to revive the process of developing a treaty top regulate multinational corporations. [24] The core civil society groups around which the so-called Treaty Alliance formed included CETIM, Dismantle Corporate Power Campaign, ESCR-Net, FIAN, FIDH, Franciscans International, Friends of the Earth International, and Transnational Institute.[25] By 2014 the Treaty Alliance had grown to over 600 organizations.[26]

The Treaty Alliance and its supporters sought to use the GPs as a springboard to resurrect the processes of drafting a binding international treaty regulating transnational business enterprises, a process that had produced first a rejected Code of Conduct on Transnational Corporations (in a process extending from 1972 through 1992), and had thereafter produced the rejected Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights (1998-2004).[27] The coalition of civil society actors working toward that end made no secret of their effort to recast the history of thwarted efforts to develop a binding international treaty on the regulation of multinational corporations as an inevitable progress fighting against rear guard actions by certain states. They recast the process leading to the endorsement of the GPs in a more problematic light, arguing that at “the end of the second term of the SRSG, in June 2011, he presented Guiding Principles on Business and Human Rights to the Human Rights Council, which were said to operationalise the Framework presented in 2008. States on the Council did not oppose the Guiding Principles, even though they received strong criticism from civil society organisations in the lead up to the June session.”[28] It was that effort, producing a “regressive approach towards the human rights obligations of States and the responsibilities of non-state actors” required action to put the project of a legal framework for the regulation of multinational enterprises back on track.[29]

The Joint Statement was straightforward drawing from the earlier civil society critique of the draft GPs.[30] The Call for an internationally binding instrument on human rights noted the continuing abuses and violations of human rights by enterprises, the disproportionate effect of these abuses on women and other marginal groups, the precarious position of human rights defenders, and the initiatives taken by states and human rights experts.[31] It underscored its adherence to the political premise that existing States have “obligations under global and regional human rights treaties and the need to implement and complement those treaties to make them effective in the context of business transnational operations.”[32] All of this serves to convince the drafters of the “need to enhance the international legal framework, including international remedies, applicable to State action to protect rights in the context of business operations, and mindful of the urgent need to ensure access to justice and remedy and reparations for victims of corporate human rights abuse.”[33] That enhancement has three parts. First, states are called on to elaborate an international treaty that affirms the applicability of human rights obligations to transnational business, requires state monitoring of that obligation, including the imposition of a mandatory obligation to apply domestic law extraterritorially within the jurisdiction of other states, requires the expansion of judicial remedies to eliminate jurisdictional limits to hear cases coming under the treaty, and creates an international monitoring and accountability mechanism of unspecified character.[34] Second, it calls on the U.N. Human Rights Council to take up this treaty elaboration project.[35] Third, it calls on civil society to mobilize to ensure the movement toward a treaty described.[36] The nostalgia and reactionary character of this Statement is hard to avoid. It derives its strength by looking back toward a world vision that pre-dates (and indeed rejects) globalization, and effectively seeks to leverage international public organizations to create a loosely structured global administrative state, operationalized through states but overseen through the normative direction, monitoring and discipline of the community of states organized through the U.N. system.

This civil society effort had a number of useful academic and other allies. These allies provided support, directly or indirectly, for projects that were aimed to move beyond or through the GPs to alternative or frameworks or alternative evolutionary paths (even if some of them appeared to look back rather than foreword).[37] Notable among them were David Weissbrodt, an instrumental figure in the creation of the Norms.[38] His writings[39] continued to defend the efforts to develop a treaty based framework that would impose direct international obligations on multinational enterprises—even if these would be realized only through transposition of international obligations within the domestic legal orders of states.[40] Surya Deva nicely articulated the academic discontent with the GPs:

The SRSG [John Ruggie] may back his back for the ‘so-called’ consensus that he built around the ‘protect, respect and remedy’ framework and for the unanimous approval of the Guiding Principles by the Human Rights Council. However, the fact of the matter is that instead of setting global human rights standards for companies, the Guiding Principles leave it to companies to ascertain their human rights responsibilities on a case-by-case basis. This circular approach is unsatisfactory.” [41]

Professor Deva would instead welcome the formulation of corporate responsibility through a treaty creating binding law applicable to corporations from law bearing entities, principally states.[42] This views, though by no means universally shared,[43] are nonetheless quite powerful and influential, are predicated in part on an open rejection of one of the key foundations of the GPs—its acceptance of a polycentric governance order effectively instituted within the logic of globalization that has empowered, as against the conventional law-state system, a (perhaps anarchic) system of societally self constituted non state governance organs, including enterprises, which interact with but the sources of norms for the organization and operation of which, are sourced outside of law and outside of the structures of states.[44] While academic writings might have been useful, it may be more plausible to suggest that this challenge to the primacy of the GP as the framework for business and human rights activities, was principally driven by civil society. There is irony here, of course, for that power of civil society evidences quite strongly the existence of the societally constituted and extra legal sphere,[45] the coordination with which had been at the center of the GP project.

None of this would have amounted to much except that several states that also remained loyal to the 1970s project of economic development,[46] and its vision of a march toward global order grounded in states but led by a norms producing administration of global organizations representing the vanguard of progressive state elements, focused on the attainment of a particular vision of progress toward social, economic and cultural rights.[47] Also useful was the move toward greater acceptance of the policy of top down internationalism—one pioneered in the course of the resolution of the financial crises that started in 2008.[48] Led this time by the delegation from Ecuador,[49] which undertook the hard diplomatic work of generating support among a sufficient number of HRC members, it was able to produce a change in the dynamics of international efforts at the operationalization of the GPs, and reconceived the GPs not as objective but as a gateway to a more permanent and quite distinct objective.[50] “In August 2013, at the Regional Forum on Business and Human Rights for Latin America and the Caribbean, and later at UN Human Rights Council 24th session in September 2013, the representative of Ecuador before the UN made a declaration” proposing that the U.N. begin work on a legally binding international instrument on business and human rights.[51] That Declaration,[52] also paralleled the Joint civil society statement discussed earlier and was countered by John Ruggie himself.[53] It welcomed the efforts around the GPs, but suggested that the increase in human rights related abuses by some multinational enterprises suggested the need to move beyond the GPs, and that this “beyond” was a “legally binding framework to regulate the work of transnational corporations and to provide appropriate protection, justice and remedy to the victims of human rights abuses directly resulting from or related to the activities of some transnational corporations and other businesses enterprise”.[54] To that end, the GOPs and their endorsement could only be understood as a “first step” which necessarily must lead to a treaty. Necessarily because the GPs remain nothing more than “soft law”,[55] something that in the world view of the proposing states implied an inferior and unsatisfying means of regulation. Again rejecting polycentricity and embracing the premise that only law derived from state power had any legitimacy, the Statement noted that the GP framework was hobbled by its lack of state power. What was required was a law-based system that clarified the obligations of transnational corporations, and of these enterprises in relation to states (that is affirmed the hierarchy of authority conventionally understood and thus produce a direct attack on polycentricity), and broadens substantially the jurisdiction of national courts over global enterprises.[56]

The push for a treaty to supersede the GPs produced the same divisions that had marked discussion a generation ago on the development of an international code for transnational enterprises and later shadowed the work on the Norms. These divisions echoed the old Cold War ideological rhetoric, but now clothed in the discursive tropes of globalization, human rights, development and “neo-liberalism,”[57] continues to pit the old “Third World” and the ancient “Socialist camp” against the old established capitalist democracies and former imperial powers.[58] Treaty advocates continue to see the world in old two dimensional ideological terms: states are pre-eminent but are bound to progress led by a vanguard of states that through international engagement can set the substantive premises within which states will progress toward economic, social and cultural advancement appropriate to their circumstances but which will free them from subservience to the old imperial powers. These powers now exercise authority indirectly, through the management of markets in which their economic enterprises dominate. Those enterprises may appear autonomous of their home states, but they are still seen as instruments of home state policies and therefore as attached to and subject to the control of home states.[59]

Treaty opponents continue to resist the idea of a comprehensive treaty for reasons of ideology and of pragmatism. A generation of struggle in this respect has indicated that there is insufficient consensus for a treaty. Globalization has made treaty powers less important and elevated non-state governance systems in prominence. They also recognize the autonomy of institutional power beyond states, though some, especially the United States, continues to struggle in this respect. Much of the opposition to efforts to supersede the GPs by a comprehensive treaty are pragmatic: treaty making vaunts formalism over functional results in ways that will likely produce empty symbol rather than operationalizable systems with real effects on the ground, any effort to develop enforcement would require radical restructuring of the state system the preservation of the prerogatives of which ironically fuel the move toward treaty alternatives, and that efforts to centralize enforcement in international public bodies are both impractical and inconsistent with the formal structures of power the treaty route is meant to embody.[60] But some of the opposition is defensive—treaties are viewed as efforts to permit the mass of poor but numerous states to usurp power (though the democratic politics of multilateralism in international institutions) against the smaller number of rich and powerful states to set an agenda that might be incompatible with the ideological value hierarchies of these states (which tend to value civil and political rights over social, economic and cultural rights, especially the United States), and to seek to treat economic enterprises as instrumentalities of home states breaches a core ideological premise of the framework of globalization that these states continue to advance.

Neither camp has thus far been able to defeat the other. Each continues to protect its interest within the governance architecture of the United Nations. The GPs and the treaty framework raised to supplant it are in a larger sense just another battleground in an old and unfinished battle for control of the discourse of constitutionalization and the role of states and non-state actors within it.[61] These divisions are made clear by comparing the resolutions approved by the HRC of Ecuador, “Elaboration of an International Treaty” (Ecuador Resolution),[62] and of Norway, continuing the GP work of the UN Working Group (Norway Resolution).[63]

The parallels between the Ecuador Resolution and the several Joint statements produced by civil society since January 2011 are unmistakable. They indicate not merely ideological solidarity and political alliance, but also quite clearly an effort to reject the normative premises that led to the construction of the GPs and the elaboration of a pragmatic and realistic approach to the regulation of the human rights detrimental conduct of enterprises consistent with the realities of governance as it is evolving in fact. The Ecuador Resolution presents an ideologically coherent, though anachronistic, expression of a world view that was at its peak in the 1970s when, for an instant, global consensus appeared to be moving toward an apotheosis of a global Westphalian order grounded in principles of command economies and the marginalization of private markets (the New International Economic Order),[64] now abandoned in favor of globalization and its open borders and polycentric governance. The ideological foundations—state supremacy, state based internationalism in the development of substantive principles for domestic law, and the primacy of international frameworks for the dismantling of colonial systems of state to state relations—are invoked first.[65] These are meant to frame the approach to the treaty elaboration that is the subject of this resolution. The object then is to manage, if not eliminate the private sector, or at least to subordinate it to the command of the state and its direction, an ideology central to the economic policy of Ecuador, Cuba, Venezuela, and Bolivia, all core members of the ALBA trade group.[66] That objective is to be realized, under ALBA ideology, through coordinated state control of economic operations.[67] This more than anything should serve as a caution to those who would abandon the GPs for a treaty—its movants have a definitive policy agenda that may be realized through business and human rights internationalization, but human rights might well be a means to the re-ordering of the global economic sector along lines that are substantially different from those that underlie economic globalization.[68]

But even as the premises of state supremacy and development are privileged, the GPs are cabined and minimized within these broader currents in two important respects. First, the GPs are contextualized as one expression of a long progress of efforts by the international community to regulate business enterprises—that is, as a part of “all previous Human Rights Council resolutions on the issues of human rights and transnational corporations and other business enterprises.”[69] Second, and a natural consequence of the emphasis on the right to development and its post or neo-colonialist ideological framework—the object of that regulation is also constrained. The work of international organizations with respect to the issues of the human rights consequences of business activities are limited only to transnational corporations, “and does not apply to local businesses registered in terms of relevant domestic law.”[70] This makes plain the political objective of the developing states who formed the core of the state group advancing the Ecuadorian Resolution:[71] the object of treaty making is not to develop a comprehensive regulation of economic activity with human rights implications, rather it is to develop methods for the control of transnational corporations that are still viewed as instrumentalities of their home states and of these home states’ sovereign investing goals. In that context they are also understood as essential to development through their “the capacity to foster economic well-being, development, technological improvement and wealth, as well as causing adverse impacts on human rights.”[72]

As such, the Ecuadorian Resolution seeks to refine the principles of non-interference in the right to development by constraining the foundational basis of globalization (free movement of capital, goods and investment) exercised through private markets, markets which are understood as subterfuges masking the projection of developed state power (through multinational enterprises) into developing states to exploit its resources and labor for the benefit of home states.[73] These constraints are perfectly understandable given the political premises buried deeply within the quite politically charged words of the Ecuadorian Resolution. But it has caused confusion and led to criticism by other actors less aware of the deep political agenda that these choices represent. And indeed, for its opponents, this choice, made inevitable by the political framework within which the Ecuadorian Resolution was offered, clearly evidences its incompatibility with the foundational premises underlying the GPs.[74] It is a constraint that may well come back to haunt the resolution’s drafter’s—but one that is central to the ideology that Resolution embodies.

This foundation then produces the framework of the resolution and the context within which its work would be undertaken: “to establish an open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, the mandate of which 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.”[75] While many might focus on the part of that resolution that establishes an mechanism for treaty making, it is the sort of treaty making envisioned, and its character, that should be of greater interest. For the objective (mandate) is to establish an international legally binding instrument to regulate in international law the activities specified. But consider the constraints inherent in that mandate: the treaty will produce international law, law that is binding on those states acceding to it to the extent not otherwise reserved. But it will have no internal domestic effect, except and to the extent that states domesticate these international obligations, under the principles of legality and state sovereignty that provides the framework for this resolution. Thus while it might serve to harden domestic law in some states, it does not guarantee transposition into domestic law. Yet this is precisely the condition one finds oneself with the GPs—which point to a framework that might well be transposed to domestic law, at the instance of the state, but which otherwise remains “soft” and binding only on the state (and not those resident or transient within it). Thus the greatest irony of the Resolution is that it is geared to do little but create potential law (in the sense that it is binding on individuals) and otherwise will produce nothing more than a framework for soft law from which custom may develop form the bottom up; functionally the equivalent position as the GPs. Here one vaunts symbolism and gesture over substance.

The Ecuadorian Resolution then, presents irony. It rejects the central premises of the GPs, but offers nothing more substantive than the promise of an international instrument that will be used by its adherents and ignored by the rest of the states. It will then produce large margins of appreciation in standards for governing human rights related to business that will in turn contribute to a widening incoherence in those human rights standards that the GP project was itself meant to narrow. Efforts at international law making, perversely, will contribute to rather than reduce, policy and regulatory incoherence. That incoherence will be deepened by the likelihood of substantial differences in defining the scope of human rights subject to treaty treatment and those excluded. Beyond the issue of cataloguing, raised by John Ruggie in his critique of the Ecuadorian Resolution, lies the larger issue of ideology. The last half-century has seen a large chasm between states that have privileged social, economic and cultural rights and those that have privileged civil and political rights.[76] That chasm is unlikely to be bridged soon. In the absence of treaty language that is so generalized as to be shaped to the desires of states that apply it, there is little likelihood that consensus will be possible. This is particularly the case with respect to the understanding of the nature and character of the transnational enterprise. Developing states and others will continue to see in the transnational corporation an instrumentality of their home states. That premise makes transnational corporations different in character from “domestic” or local enterprises that operate within a domestic order. It suggests that asset partitioning and legal personality of multi-corporate enterprises might be more easily ignored and obligations more easily moved up and down supply and value chains. It also suggests that the activities of transnational enterprises are public and political as much as economic and market based. In that context, significant state regulation, including control of economic decision making makes sense. Developed states will continue to defend the autonomy of the corporate enterprise and that of private markets. That has consequences as well for the way in which one approaches the regulation of the human rights impacts of transnational corporations. The asset partitioning and autonomy of separately incorporated corporations, and the sanctity of contractual relations (as private law) will be defended. The private nature of economic activity will serve as a guiding premise that militates against significant efforts at state control of economic activity, rather than imposition of consequences for damages caused by human rights detrimental activity. But most importantly, the premises of globalization and private markets also make incomprehensible any distinction between transnational and domestic corporations or other enterprises.

But the Ecuadorian Resolution also contains within it a core insight that is quite powerful, though limited in scope. As we have seen in the context of the difficulties of attaining coherence in the project of developing NAPs that elaborate the state duty to protect human rights, state action is inherently a subject of legal discourse and operates best within the strictures of rule of law systems. NAPs also present difficult issues of compliance.[77] That is their nature—at least legitimately constituted states (whatever their governing political ideology).[78] It follows that state practice convergence can be made easier through treaty making. Confined to the ordering of the state duty to protect human rights, the treaty making imperative is sensible and useful. It serves to discipline the anarchic “natural” state of Westphalian state autonomy within the matrices of norm structures created and maintained by the community of states, norm structures that reflect a consensus among states respecting the sorts of behaviors expected of states as they engage in their duty to protect human rights. But notice here what this entails—the object is not the regulation of transnational corporations through treaties, it is the regulation of states that ought to be the object of the treaty making specified in the Ecuadorian Resolution. That is the great insight of Section II that may be applied to the GP project of state duty. The treaty making objectives of the Ecuadorean Resolution, then, can serves its highest purpose by seeking to develop a framework for disciplining states in the ordering of their domestic legal orders to more coherently regulate and discipline economic activity within their borders. Thus, the problem is not the transnational corporation and its abuses, it is the state and its failures. It is to the overcoming of those failures that treaty making ought to be directed by states for states.

In contrast, The Norway Resolution offers an alternative vision that is both sensitive to the needs of legalization of the standards for managing enterprise conduct at the international level, and to the realities of the open, porous, permeable and polycentric governance networks[79] that now operate within globalization. The preliminary statements of the Norway Resolution seek to make the case for a quite distinct vision of the project of business and human rights, one that embraces the foundations of economic globalization, that is more suspicious of states as the principal source of human rights regulation of business, and more willing to coordinate with non-state governance systems to reach a functionally coherent multi-systemic approach to disciplining business behavior. It is certainly messier and less formally coherent than the vision presented by the ALBA states in the Ecuadorian Resolution, but it is also more functionally coherent and closer to the realities on the ground. Yet it is also important to remember that the Norway Resolution was meant to “extend the mandate of the Working Group on the issue of human rights and transnational corporations and other business enterprises as set out in Human Rights Council resolution 17/4 for a period of three years.”[80] Within that objective, the Norway Resolution inverted the contextualization attempted in the Ecuador Resolution. Where the Ecuador Resolution sought to contextualize and lessen the importance f the GPs within a larger framework fo work that appeared to lead to treaty making, the Norway Resolution sought to contextualize treaty making within the greater project of developing the GPs. Paragraph 8 of the Norway Resolution:

Requests the Working Group to launch an inclusive and transparent consultative process with States in 2015, open to other relevant stakeholders, to explore and facilitate the sharing of legal and practical measures to improve access to remedy, judicial and non-judicial, for victims of business-related abuses, including the benefits and limitations of a legally binding instrument, and to prepare a report thereon and to submit it to the Human Rights Council at its thirty-second session.[81]

Treaty making thus is converted from a principal objective to a mechanism for moving the GP project forward. It also requested the High Commissioner for Human Rights to investigate the possibilities of extending legal frameworks to regulate the complicity of enterprises in gross human rights abuses, picking up the suggestion for targeted treaty making first proposed by John Ruggie as an alternative to the comprehensive treaty approach fo the Ecuador Resolution.[82] As for the rest, the Norway Resolution continued to emphasize the major premises of the GP project: embedding the GPs in governance institutions, greater efforts by states to conform their domestic legal orders to their duty to protect human rights, and greater emphasis on finding more effective remedial mechanisms. Many of these serve to answer some of the challenges raised by civil society and the Ecuador Resolution—the upsurge in human rights abuses by transnational corporations, the failures by states to operationalize the GPs, the difficulty of rtecourse to remedies. At the same time, the Norway Resolution wen tout of its way to emphasize a fundamental distinction between the GP and treaty processes. The GP process envisioned by the Norway Resolution includes a substantial space for participation by civil society and other non-state actors. It provides a space for meaningful dialogue and socialization among major stakeholders in systems of human rights behavior discipline—through law or non-law rule systems or the development of custom. In contrast, and by implication, a treaty making process is necessarily opaque. Treaties are the business of states, and the process may be as transparent as states deem it wise to make them. The modern trend is to preserve secrecy.[83]

Yet the Norway Resolution also opens the possibility to finding a way of converging adherence to the GP framework, structured around the activities of the Working Group, especially with respect to the state duty to protect human rights and its related 3rd Pillar elements, combined with the core insight of the Ecuador Resolution that a binding international legal instrument is necessary to produce coherence among states using the only discursive framework intelligible to states—law. The Ecuadorean Resolution speaks to the creation of an open ended intergovernmental working group on a legally binding instrument on transnational corporations.[84] While a legally binding instrument, a treaty or convention in this case, sounds in the singular, it does not mean that the construction of that instrument must also be considered in the singular. It is possible to conceive of the project of the production of a binding instrument as made up of any number of subparts. Each of these subparts may be negotiated separately and put forward provisionally or seriatim as part of the greater project of producing, in the aggregate, and as the final product of these efforts, the legal instrument referenced in the Ecuadorian Resolution. It is thus possible to implement the Ecuadorean Resolution in stages, stages that produce a series of specifically targeted treaties, each constructed as a component of what together will produce the integrated international legal instrument specified in the Resolution. That approach produces tremendous benefits to both those states seeking a legal basis for the construction of domestic legal rule of law orders in states that are coherent and harmonized between them. At the same time it would fit neatly into the GP regime by focusing treaty making on the ordering of state power and authority on states without foreclosing the continued development of the corporate responsibility to respect human rights, or the coordinating role of international organizations as spaces where consensus on substantive premises may be developed. In this way it is possible to achieve coherence between the Norwegian and Ecuadorean Resolutions. In this way it will be possible to use the treaty making facility in ways most suited to its character—the disciplining of states by defining their legal obligations (to other states) and specifying their duty in the construction of their domestic legal orders. At the same time, it will avoid pretensions to comprehensiveness by avoiding efforts to move beyond the realm of law to the governance spaces reserved to societally constituted entities—transnational enterprises, civil society and other non-state actors with internal governance systems—which is the realm of the corporate responsibility to respect human rights. Lastly, it provides a basis for common ground between them in the construction of the dispute resolution mechanisms of the 3rd Pillar—through treat discipline for states, and otherwise for non-state actors. The remedial pillar requires some refocusing—from states and enterprises to the victims of human rights abuses. This has not been easy as states and enterprises focus on their needs and objectives. Here is one area where an international body may be appropriately constituted to provide interpretive guidance on the application of the GPs in the context of individual complaints, a suggestion I have made elsewhere.[85] It is in the remedial pillar that the difficulties identified in Section II (with respect to states) and Section III (worth respect to enterprises), suggests resolution beyond either and in the international organizations from which the normative content of the human rights obligations of both are best expressed.

__________

 

In a speech marking the 60th anniversary of the Five Principles of Peaceful Coexistence held in Beijing June 28, 2014, President Xi Jingping “urged the international community to jointly promote the rule of law in international relations. ‘We should urge all parties to abide by international law and well-recognized basic principles governing international relations and use widely applicable rules to tell right from wrong and pursue peace and development,’ said the Chinese president.” This insight, by one of the states that voted in favor of the Ecuadorian Resolution, provides the foundational insight on which further work on implementing that resolution might well be undertaken. The Ecuador Resolution, then, might be most usefully understood and applied in this light—to use the treaty machinery to construct a well-integrated, long term, and ultimately comprehensive rule of law system for business and human rights.

Business and human rights treaties can help construct an international rule of law system binding on all states in equal measure, and which can serve as a means of connection with the development of transnational business behavior norms that fall within the social (non-state) sphere. That work would require, to begin with, the necessary but hard work of mapping the extent of the current landscape of the state duty to protect—a project at the heart of the Working Group’s NAP project and the operationalization of the GPs. It then requires a structuring of relations among states and non-state actors within their distinct realms of activities, sensitive to the realities of globalization at the heart of the GP’s corporate responsibility project and an important element of the 2nd Pillar. Within this foundational structure the community of states might then turn to the slow, careful, and logical crafting of a well conceived program of law making, through treaty, that would, when completed, produce the comprehensive treaty based approach to the state’s duty to protect human rights envisioned in the Ecuadorian Resolution. The product would be a system of interlocking treaties establishing the rule of law in international relations that together would serve as the legal baseline for state compliance with their duty to protect human rights in a coherent manner that would, in turn, be coordinated with the governance regimes of non-state actors now so critical to the functioning of the global economic order.

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NOTES

[1] See, Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights, January 2011. Available at: http://www.fidh.org/IMG/pdf/Joint_CSO_Statement_on_GPs.pdf


[2] Id.


[3] Id.


[4] See id. The Joint statement was produced by a coalition that included Amnesty International, CIDSE, ESCR-Net, the International Federation for Human Rights, Human Rights Watch, International Commission of Jurists and RAID. Id.


[5] Discussed in Larry Catá Backer,


[6] On the democratic deficit and non-state actors in the international plane, see, e.g.,


[7] Id., pp. 1-2.


[8] Id., p. 2.


[9] Id. (“They should more specifically provide guidance for States to ensure that companies under their jurisdiction do not contribute to human rights abuses at home or abroad.”). Consider, Sara Seck, "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World", Law at the End of the Day, July 5, 2013. Available http://lcbackerblog.blogspot.com/2013/07/sara-seck-on-kiobel-and-e-word.html; Daniel Augenstein and David Kinley, When Human Rights ‘Responsibilities’ become ‘Duties’: The Extra Territorial Obligations of states that Bind Corporations, in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? 271-294 (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013). The GPs were grounded on a more benign form of extraterritoriality, though one that from the perspective of this author, still over-empowered powerful states to project their domestic laws and agendas on weaker states perpetuating systems of vertical power arrangements among states. See, Olivier DeSchutter, Extraterritorial Jurisdiction as a Tool for the Human Rights Accountability of Transnational Corporations, Catholic University of Louvain and the College of Europe (22 Dec. 2006). Available http://cridho.uclouvain.be/documents/Working.Papers/ExtraterrRep22.12.06.pdf.


[10] Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights, January 2011, supra, p. 2. This, at its best, might mirror the emerging school of Third World Approaches to International Law (TWAIL). At its worst it represents a form of neo-colonialism, which the GPs sought to avoid. See discussion in Larry Catá Backer, Sara Seck on the Possibilities and Limits of Extraterritoriality in a Corporate Social Responsibility and Human Rights Context, Law at the End of the Day, Sept. 6, 2012. Available http://lcbackerblog.blogspot.com/2012/09/sara-seck-on-possibilities-and-limits.html.


[11] Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights, January 2011, supra, p. 2.


[12] Id. (including women, children, Indigenous peoples, and human rights defenders).


[13] “Clear guidance should be provided by drawing from recommendations made by other UN Special Procedures, UN human rights treaty bodies, the UN Permanent Forum on Indigenous Issues, and the International Labor Organization. Further, explicit reference to relevant treaties and declarations, should be included in the Guiding Principles when articulating the sources of internationally recognized human rights that companies must respect.” Id.


[14] Id., p. 3.


[15] Id. (“The Guiding Principles should take a comprehensive approach to remedies that include: effective legally-binding remedies consistent with international human rights law; voluntary mechanisms; and other measures that will ensure adequate remedy.” Id.).


[16] Id.


[17] Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, Human Rights Council, Twenty-sixth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/26/L.22/Rev.1 (25 June 2014). The resolution was sponsored by Bolivia, Cuba, Ecuador, South Africa, and Venezuela.


[18] Human Rights and Transnational Corporations and Other Business Enterprises, Human Rights Council, Twenty-sixth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/26/L.1 (23 June 2014).


[19] U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Draft Norms on the Responsibilities

of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003). For a critical analysis, Larry Catá 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, Columbia Human Rights Law Review 37:287-389 (2006).


[20] Radu Mares, Business and Human Rights After Ruggie: Foundations, the Art of Simplification and the Imperative of Cumulative Progress, in The UN Guiding Principles on Business and Human Rights—Foundations and Implementation (Radu Mares, ed., Leiden: Martinus Nijhoff, 2012).


[21] See, e.g., International Chamber of Commerce and International Organization of Employers, Joint views of the IOE and ICC on the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, (March 2004), available at http://www.business-humanrights.org/Links/Repository/179848/link_page_view.


[22] Id., p. 3 (“We urge the Human Rights Council to create one or more Special Procedures or mechanisms to fulfil these functions, so as to ensure further development of robust, clear and workable guidance for the protection of human rights against business-related abuse”).


[23] See, "Joint Statement: Call for an international legally binding instrument on human rights, transnational corporations and other business enterprises". Available at: www.treatymovement.com/statement (“It represents the collective expression of a growing mobilization of global civil society calling for further enhancement of international legal standards to address corporate infringements of human rights. It welcomes the recent initiatives by States in the United Nations Human Rights Council to develop an international treaty on legally binding rules for TNCs on human rights issues.”). See id for list of signatory organizations.


[24] “Many groups, including many members of the ESCR-Net Corporate Accountability Working Group since it began 10 years ago, have been supporting the adoption of binding international instruments to address corporate human rights abuse. In Bangkok, at the ESCR-Net Peoples Forum on Human Rights & Business, participants formulated a Joint Statement that was signed by over 140 groups in less than one month.” Global Movement for a Binding Treaty, Corporate Human Rights Abuses Must Stop, Sign the Joint Statement Calling for a Binding Treaty in June ’14, available http://treatymovement.com/.


[25] Id.


[26] Joint Statement: Call for an international legally binding instrument on human rights, transnational corporations and other business enterprises, List of Signatories (2014), available http://www.treatymovement.com/statement/.


[27] Global Movement for a Binding Treaty, History: Timeline of key Developments in the Struggle to Establish an International System of Accountability for Transnational Corporate Human Rights Abuses (2014). Available http://treatymovement.com/ (“Since the early 1970s there have been concerted efforts to develop binding international systems to regulate corporations for their human rights violations.”).


[28] Id.


[29] Id.


[30] See, Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights, January 2011, supra.


[31] Joint Statement: Call for an international legally binding instrument on human rights, transnational corporations and other business enterprises, List of Signatories (2014), supra.


[32] Id.


[33] Id.


[34] Id.


[35] Id.


[36] Id.


[37] See, e.g., the essays in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013)


[38] See, e.g., David Weissbrodt and Muria Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, American Journal of International Law 97(4):901 (2003) (“the Norms are the first non-voluntary initiative [in the area of business and human rights] accepted at the international level.” Id., 903). Criticized in John G. Ruggie, Business and Human Rights: The Evolving International Agenda, American Journal of International Law (2008). See also, Larry Catá Backer, Multinational Corporations, Transnational Law, supra.


[39] David Weissbrodt, Keynote Address: International Standard-Setting on the Human Rights Responsibilities of Businesses, Berkeley Journal of International Law 373 (2008) See also, David Weissbrodt and Muria Kruger, Human Rights Responsibilities of Businesses as Non-State Actors, in Non-State Actors and Human Rights 26:553 (Philip Alston, ed., Oxford University Press, 2005); David Weisbrodt, United Nations Charter-based Procedures for Addressing Human Rights Violations: Historical Practice, Reform, and Future Implications, in The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley 13 (Geoff Gilbert, Françoise Hampson & Clara Sandoval, eds., Routledge, 2011).


[40] For a sympathetic defense and analysis see David Kinley, and Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law, Human Rights Law Review 6(3):447-497 (2006).


[41] Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business 239 (London: Routledge: 2013).


[42] Id., 238-239, and generally id., 176-199.


[43] See, e.g., John G. Ruggie, Business and Human Rights: The Evolving International Agenda, supra, Larry Catá Backer, Multinational Corporations, Transnational Law, supra. John Ruggie noted the pragmatism underlying much of his critique: “I noted in my earlier brief that enumerating these challenges is not an argument against treaties. But it is a cautionary note to avoid going down a road that would end in largely symbolic gestures, of little practical use to real people in real places, and with high potential for generating serious backlash against any form of further international legalization in this domain.” John G. Ruggie, A UN Business and Human Rights Treaty Update (1 May 2014). Available http://business-humanrights.org/sites/default/files/media/documents/ruggie-un-business-human-rights-treaty-update-1-may-2014.pdf.


[44] Critically discussed in Larry Catá Backer, In Defense of the State and the International Legal Order: Reflections on Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect (Surya Deva and David Bilchitz, eds., Cambridge University Press, 2013), available in Law at the End of the Day, December 1, 2013 http://lcbackerblog.blogspot.com/2013/12/at-2nd-un-forum-on-business-and-human.html (“reflect the deep and unrelenting suspicion of non-law based governance systems. The concept of social norms and or societal constituted communities is viewed both as illegitimate and as ineffective against the ideal of law. . . .This puts the critics of the GP on a conceptual collision course with the underlying framework of the GP themselves.” Id.)


[45] See, e.g., Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, 2012); Jayne Ellis, Constitutionalization of Nongovernmental Certification Programs, Indiana Journal Global Legal Studies. 20:1035-1059 (2013).


[46] Most prominently featured, though discretely is Cuba, whose intellectual leadership in this area has been quite sustained since the 1970s. Discussed in Larry Catá Backer,


[47] The best ideological expression of this view, one most faithful to the world vision of the last expression of European Stalinist Marxism, was provided by Cuba, the last faithful disciple of Stalinist European Leninism. Discussed in its modern form in Larry Catá Backer, Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes, Duke Journal of Law & Contemporary Problems 70:1-46 (2007).


[48] Discussed in Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order,) Indiana Journal of Global Legal Studies 18(2):751-802 (2011) (G20 can develop standards through complex public-private networks and them impose them through market and political power on states dependent on them for economic and other relations).


[49] Ecuador had its own agenda to further. See, Business & Human Rights Resource Centre, Texaco/Chevron lawsuits (re Ecuador) (18 Feb. 2014). available http://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador#c9332. And it had its own human rights issues. See, Amnesty International, Ecuador: Inter-American Court ruling marks key victory for Indigenous Peoples (27 July 2012). Available http://www.amnesty.org/en/news/ecuador-inter-american-court-ruling-marks-key-victory-indigenous-peoples-2012-07-26.


[50] For this purpose they could draw on the Mandate for the establishment of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Resolution Adopted by the Human Rights Council, Human rights and transnational corporations and other business enterprises, Human Rights Council, 17th Session, Agenda Item 3, A/HRC/RES/17/4 (6 July 2011). Available http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/G11/144/71/PDF/G1114471.pdf?OpenElement. Paragraph 4 “Recognizes the role of the Guiding Principles for the implementation of the Framework, on which further progress can be made, as well as guidance that will contribute to enhancing standards and practices with regard to business and human rights, and thereby contribute to a socially sustainable globalization, without foreclosing any other long-term development, including further enhancement of standards” Id., ¶ 4, p. 2.


[51] Quoting in part Business and Human Rights Resource Centre, Binding Treaty: Pros and Cons, available http://business-humanrights.org/en/binding-treaty-pros-and-cons.


[52] Republic of Ecuador, Statement on behalf of a Group of Countries at the 24rd Session of the Human Rights Council General Debate–Item 3 “Transnational Corporations and Human Rights”, Geneva, September 2013. Available http://business-humanrights.org/sites/default/files/media/documents/statement-unhrc-legally-binding.pdf (statement on behalf of the African Group, the Arab Group, Pakistan, Sri Lanka,

Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru and Ecuador).


[53] On 28 January 2014, the former UN Special Representative on business & human rights, Professor John Ruggie released an issues brief in response to Ecuador's proposal for a legally binding instrument, and updates on the issue on May and on June 2014. See, John G. Ruggie, A UN Business and Human Rights Treaty? An Issues Brief (28 Jan 2014). Available http://www.business-humanrights.org/Links/Repository/1024755.


[54] Id.


[55] Cf. Jayne Ellis, Shades of Grey: Soft Law and the Validity of Public International Law, Leiden Journal of International Law 25(2):313-34 (2012).


[56] John G. Ruggie, A UN Business and Human Rights Treaty?, supra.


[57] Cf., Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, Penn State International Law Review 24:497-561 (2006)


[58] Cf. Jack Donnelly, Universal Human Rights in Theory and Practice 7-24 (Cornell University Press, 2013).


[59] Cf. Larry Catá Backer, Odious Debt Wears Two Faces, supra.


[60] Cf. John G. Ruggie, A UN Business and Human Rights Treaty Update (1 May 2014), supra.


[61] Discussed in Larry Catá Backer, The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century, CPE Working Paper 6/1 (June 2014). Available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2458965.


[62] Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, Human Rights Council, Twenty-sixth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/26/L.22/Rev.1 (25 June 2014). The resolution was sponsored by Bolivia, Cuba, Ecuador, South Africa, and Venezuela.


[63] Human Rights and Transnational Corporations and Other Business Enterprises, Human Rights Council, Twenty-sixth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/26/L.1 (23 June 2014).


[64] See, e.g., Resolution adopted by the General Assembly, 3201 (S-VI). Declaration on the Establishment of a New International Economic Order, U.N. General Assembly, 6th Special Session, Agenda Item 7, A/RES/S-6/3201 (1 May 1974). Available http://www.un-documents.net/s6r3201.htm.


[65] Ecuador Resolution, supra, Most telling is the invocation of the right to development, a product of a mindset at the cusp of globalization in the mid 1980s and the last flower of the ideological campaigns of the socialist camp in the United Nations. Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986 available http://www.un.org/documents/ga/res/41/a41r128.htm.


[66] Discussed in Larry Catá Backer and Augusto Molina, Cuba And The Construction Of Alternative Global Trade Systems: ALBA And Free Trade In The Americas, University of Pennsylvania Journal of International Law 31(3):679-752 (2010).


[67] It is in this context that the expression of state supremacy in the Ecuadorian resolution acquires deeper meaning: “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.” Ecuadorian Resolution, supra.


[68] Id.


[69] Ecuador Resolution, supra.


[70] Id., note 1.


[71] These include the Plurinational State of Bolivia, Cuba, Ecuador, South Africa, and Venezuela. Id.


[72] Id.


[73] The theory is elegant and derived from an application of Cuban political theory which ahs been largely suspicious of globalization and of developed states and the global financial system that they have created. See, e.g., Fidel Castro Ruz, On Imperialist Globalization (NY: Zed Books, 2003) (arguing that globalization frames an imperialist world order, organized around new forms of economic exploitation, attacks on national sovereignty, cultural subjugation, and military aggression); Fidel Castro Ruz, Capitalism in Crisis (NY: Ocean Press, 2000) (condemning the deleterious systemic impact of economic globalization on developing states and advanced capitalist countries). Discussed in Larry Catá Backer, Odious Debt Wears Two Faces: Systemic Illegitimacy, supra.


[74] For example: “A fundamental flaw lies in Ecuador’s insistence that the treaty focus on multinational companies, even though any company can cause problems and most standards, including the UN principles, don’t draw this artificial distinction.” Arvind Ganesan, Dispatches: A Treaty to End Corporate Abuses, Human Rights Watch (July 1, 2014). Available http://www.hrw.org/news/2014/07/01/dispatches-treaty-end-corporate-abuses.


[75] Ecuadorian Resolution, supra.


[76] Discussed in Larry Catá Backer, Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatization and the Role of Companies in China and India, The George Washington International Law Review 45(4):615-680 (2013).


[77] See, Section II, supra.


[78] See, e.g., Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Legal Global Ordering, 16(1) Indiana Journal of Global Legal Studies 85-172 (2009); and Larry catá Backer, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012).


[79] Discussed in Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, Tilburg Law Review 17(2):177-199 (2012).


[80] Norway Resolution, supra, ¶ 11.


[81] Norway Resolution, supra, ¶ 8.


[82] Id., ¶ 7. The objective is not a treaty but a report that might recommend moving toward treaty treatment of this specific issue. See also John G. Ruggie, A UN Business and Human Rights Treaty Update (1 May 2014), supra.


[83] See, e.g. the process of negotiating the Trans-Pacific Parnership, discussed in Larry Catá Backer, The Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order, Washington University Global Studies Law Review 13(1):49-81 (2013). Available http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1473&context=globalstudies.


[84] Ecuadorean Resolution, supra., ¶1.


[85] Larry Catá Backer, Backer, Larry Catá, An Institutional Role for Civil Society within the U.N. Guiding Principles?: Comments on César Rodríguez-Garavito and Tatiana Andia 'Business and Human Rights: Beyond the End of the Beginning' (March 11, 2014). Implementing the UN’s Guiding Principles on Business and Human Rights: A South-Initiated North-South Dialogue Brown University, February 20-22, 2014. Available at SSRN: http://ssrn.com/abstract=2407787.