New Paper Posted: "Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to Be Framed, Why it Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting"

(Pix © Larry Catá Backer 2016)

In June 2014, the UN Human Rights Council adopted a resolution “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 is to "elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” 

This resolution has been the catalyst for discussions around the world concerning both the desirability and possible content of a treaty on business and human rights. Whatever the result of these efforts, the process of negotiating such a treaty should prove valuable in itself. At its best, the process itself may advance understanding of the complex legal questions underlying projects of legalization of the human rights responsibilities of business, including the range of human rights standards applicable to companies.  There is no doubt that it will also inspire othjer business and human rights initiatives in the public and societal spheres. 

With a view to inform the ongoing debate about the value of a legally binding international instrument and facilitate the engagement of all stakeholder involved in the treaty negotiation process, a small group met to discuss various contentious issues related to the content of the proposed treaty. The meeting took place on 19 November 2015, immediately after the 4th UN Forum on Business and Human Rights.

I have just posted a preliminary draft paper that includes my contribution to that meeting.  Entitled "Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting,"  the paper considers the strategic issues the underlie approaches to treaty elaboration, the principles and ideological contradictions that frame them and the recourse to pragmatic principles that may be requires to move from the promise of elaboration to a draft treaty. 

The Abstract and introduction (without footnotes) follows.

Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting

Larry Catá Backer



Abstract:

John Ruggie is both famous and notorious for advancing the notion of principled pragmatism as a basis for framing the three pillar “Protect-Respect-Remedy” framework and ultimately the Guiding Principles for Business and Human Rights endorsed in 2011. Principled pragmatism served as a lubricant to move discussion from the operationalization of the U.N. Guiding Principles for Business and Human Rights (UNGP) to the establishment, in June 2014, of an “open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The object of this effort was to cure the deficiencies of the UNGP, and apply principle unencumbered by pragmatism, to produce law to manage enterprises through states. But that application of principle does not occur in a vacuum unconstrained by history or the foundational principles that now serve to structure domestic and international law systems. This contribution considers the consequences of this effort. After an introduction setting context, Part II considers the framework for a comprehensive in its ideal form. To that end, the starting point will be the objectives of the treaty exercise within the structures of principled pragmatism, and thus the crisscrossing principles at play. It then considers the range of ideological choices necessary to move from objective through ideology to its expression in pragmatic form. This suggests the range of pragmatic choices exposed by the principles underlying the move toward a treaty for business and human rights, its premises, provisions and approaches in light of those objectives and their underlying ideologies. Part III then embeds principles of pragmatism in that project in light of the ideological basis of opposition to treaty objectives and approaches. It considers the consequences of this necessary pragmatic turn in light of the relationship of principle, objectives, and pragmatism (understood in both the sense of its relation to principle and to objectives). Pragmatism requires a reconciliation of principle with operationalization choices. Here is pragmatism applied to principles. It also demands an analysis in which one distinguishes between pragmatism relating to principle from that of pragmatism relating to attainment of objectives. This contribution, then, goes to the operational heart of the treaty process itself where the best intentions and deepest substantive principles of its proponents are confronted with both implementation choices (pragmatism of principles) and compromises of those animating principles themselves (principled pragmatism). This produces an irony that is briefly explored in the conclusion, an attempt at developing a coherent set of principles in the style of John Ruggie’s principled pragmatism but this time bent to the service of the treaty project.

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I. Context

John Ruggie is both famous and notorious for advancing the notion of principled pragmatism as a basis for framing the three pillar “Protect-Respect-Remedy” framework and ultimately the Guiding Principles for Business and Human Rights (UNGP) endorsed in 2011. The notion of principled pragmatism was highlighted in the unveiling of the three pillar “Protect-Respect-Remedy” Framework in 2008, which served as the principled basis for the pragmatic provisions of what was eventually endorsed by the UNGP, and the ongoing projects of operationalizing its second pillar in the societal sphere. The object is to give principle practical effect, or in the words of John Ruggie, to “search for practical solutions, not be driven by doctrinal preferences.” Notions of principle and pragmatism, of objective and compromise, will also play a critical role in shaping the discourse that might lead to a comprehensive treaty for business and human rights, and will certainly determine its final scope or eventual rejection. It is to the fundamental issues of framing principle, of the pragmatic choices that will shape its structures, and of the comprises in the service of attainment of the ultimate objectives underlying the push for a comprehensive treaty for business and human rights that this essay is directed.

Principled pragmatism is deeply embedded within the disciplinary structures from which principle is formed, and that embedding produces unintended consequences. First, there is always principle beyond the pragmatic turn. Pragmatism, itself is a choice of principle. Second, that choice of principle affects the way in which normative principles, themselves, are approached. That is pragmatism affects not merely principle, but the interpretation and application of principle in the service of identified results. Third, pragmatism, then is always both a necessary element of principle and contrary to it as well. The pragmatic is the way one speaks to the techniques of conceptualization and methodologies in action, those concepts/methods necessary to embed principle in context. At the same time, pragmatism is its own ideology, which can bend principle, and its normative elements, to the objectives toward which pragmatism is directed. Fourth, institutional objectives add a layer of interpretive and normative complexity to the project of principled pragmatism. Objectives add an essential managerial element, an implementary pragmatism to the process of elaborating a treaty through the process of converting principle to objectives, and objectives to policy choices necessary to attain the objectives. The principle of protection of state authority itself can distort both the underlying normative principles of business and human rights as well as constrain the conceptions/methodologies of pragmatism now bent to both normative objective and institutional one. The choice, for example, or privileging agendas that further state instead of polycentric governance affects both principle and pragmatism. Fifth, no principle is neutral. The idea of neutrality, though, remains embedded in discourse. Herbert Weschler might speak to constitutionally neutral principle, but what they reference is likely not the neutrality of the principle itself, but of its application. Yet even equal protection itself can be skewed by ideology—and history. All principles are indeed the opposite of neutral—the embrace of a particular set of normative choices. Sixth, normative choices on which principles are elaborated are themselves grounded. But they are grounded in choice not principle. Principles, then are second order premises that are built on the choices made in their construction, elaboration and privileging. Seventh, it follows that pragmatism is not neutral, at least in the sense of the choice of objectives and of the methodologies chosen to attain the objectives. And this squares the circle back to the first point. Eighth, both principle and pragmatism reflect principled choices and color the way in which each constructs the other. Pragmatism is colored by the principle for which it serves as instrument toward an objective in context. Principle is colored by the pragmatism through which it is expressed in operation. And both principle and pragmatism are colored by the principles and pragmatism of the institutions that serve as the vehicles through which principle and pragmatism are elaborated and applied.

To speak, then, of principle and pragmatism, is to acknowledge that both normative and operational constructs are infused with an ideology that guide choices and constrain both principle and pragmatism itself. But this approach remains highly contested as approach and as principle. This is not so much tautological but rather an acknowledgement that both principle and pragmatism are two sides of the same coin. One sees that better by flipping the idea around. Assume one starts with objectives—the example, the objective of creating a global legal framework for managing the conduct of multinational corporations. That objective then speaks to principles—the primacy of the state, the authoritativeness of law, the universalism of behavior standards, etc. It also speaks to pragmatism—the desirability to negotiate a treaty, the need to development mechanisms for treaty enforcement, the structures of uniform interpretation, and so on. Principles speaks to normative choice; pragmatism speaks to its embedding in context, to an assessment of the truth or value of principle or beliefs in terms of the success of their practical application.

And this is where the political-normative value of pragmatism is meant to be most useful, most pragmatic. It is possible for two multiple sets of values, principles based, communities, to agree to a set of objectives in context, and each to see in that pragmatic choice a fidelity to its own principles. That was the essence of Professor Ruggie’s principled pragmatism: to invert the principles-pragmatism construct, and to begin with objectives which key principles-based political actors (states, MNEs and NGOs) might share in common—in this case the need to establish some sort of structure to (begin) to identify and enforce certain conduct norms for business behavior—and then to work backwards toward principle. The principle of pragmatism now becomes clear—as a process of aggregating the principled pragmatism of all necessary actors in the service of objectives which are privileged over the principles and pragmatic choices of any single actor, as a process of ambivalence in the service of common objectives among communities whose principles and the pragmatism that drives them, are fundamentally incompatible.

Within the context of the UNGP, the objective was the establishment of a structure for disciplining business behavior within a normative conduct structure. For all key actors the resulting structure would move toward a pragmatic embedding of their principles, but could not produce an identity between principle-pragmatism and objective. But it would bring each closer. And to the extent that each continued to participate—a key element of the principles underlying each actor—the more important for each actor to stay true to the aggregate pragmatism represented by the shared objective. The objective, then, becomes the principle, and the pragmatism the interpretive latitude in contextualizing norms within the structures of the objectives. For states that meant abandoning the principle of state monopoly on governance and the singularity of law (the second pillar); for enterprises it meant to acceptance of regulatory governance structures rather than markets as a means of constraining behavior (the first and third pillar); for NGOs it meant the acceptance of governance techniques as an authentic alternative to law and of the internal constitution of enterprises as societally constituted governance organs (three pillars).

It is in this more nuances sense that one can understand the value of principled pragmatism as a lubricant, first to develop the UN Guiding Principles (that is to create the pragmatic structures for the expression of principle), and then to move discussion from the establishment to the operationalization of the UNGP, in June 2014, through the ultimate expression of the pragmatism of principle, an “open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The object of this effort was to cure the deficiencies of the UNGP, and apply principle unencumbered by pragmatism, to produce law to manage enterprises through states.

Yet the drive toward a treaty may well sink on the very shoals of the pragmatism necessary to move from conception to actualization. This contribution considers the consequences of principles and pragmatism within the constraints developed for the elaboration of such a “binding legal instrument.” The aim of my contribution is to consider pragmatism in approaches to treaty making; that is, that in the face of the likelihood of a necessary deviation between the ideal and the attainable (and even among various versions of the ideal within the treaty favoring community) in a treaty what principles and normative premises ought to be developed and applied to determine the scope and application of pragmatism toward the production of a treaty.

That pragmatism ought to be built on two critical elements. The first is grounded on the recognition of the fundamental ideologies underlying the move toward a treaty. The second is certainty about the core framework that preserves or advances those ideologies whose expression as law is the core objective of the treaty. Both are required to develop a distinct sort of principled pragmatism that can ensure the integrity of the treaty project—that is that it remains true to its core vision and aims—even in the face of two likely alternatives. The first is a certainty of substantial necessary compromise if the treaty effort is to produce something that resembles success. The second is grounded in the certainty of failure—and the strength to crafts the treaty itself as the embodiment of ideology, theories and values around which future efforts might be based.

That sort of pragmatism—fundamentally conceptual—is a necessary first step toward a rigorously rational approach for treaty proponents. It is built on a process of self knowledge that reveals the ideological basis that supports treaty proponents, the provisions that are required to give effect to those ideologies, and the likely nature, grounded in counter-ideology, of opposition to the treaty, whatever its initial form. And it will form the only principled basis within which the process of treaty negotiation can proceed in ways that preserve the ideological core embraced by treaty proponents. Indeed, in the face of the already announced intent of opponents to undermine the treaty and the treaty process itself, coherence is likely an important element toward the successful elaboration of an instrument that may survive its own birth. In the absence of this pragmatism, fracture and incoherence—a treaty process inverted—centered on treaty provision negotiation without a centering ideology or visions for the project as a whole.

After this introduction setting context, Part II considers the framework for a comprehensive in its ideal form. To that end, the starting point will be the objectives of the treaty exercise within the structures of principles and their pragmatics, and thus the crisscrossing principles at play. It then considers the range of ideological choices necessary to move from objective through ideology to its expression in pragmatic form. This suggests the range of pragmatic choices exposed by the principles underlying the move toward a treaty for business and human rights, its premises, provisions and approaches in light of those objectives and their underlying ideologies. Part III then embeds these principles, embedded in objectives, within structures of pragmatic approaches that would be the face of the pragmatic elaboration of a treaty. This examination is undertaken in light of the ideological basis of opposition to treaty objectives and approaches. It considers the consequences of this necessary pragmatic turn in light of the relationship of principle, objectives, and pragmatism (understood in both the sense of its relation to principle and to objectives). Pragmatism requires a reconciliation of principle with operationalization choices. Here is pragmatism applied to principles. It also demands an analysis in which one distinguishes between pragmatism relating to principle from that of pragmatism relating to attainment of objectives.

This contribution, then, goes to the operational heart of the treaty process itself where the best intentions and deepest substantive principles of its proponents are confronted with both implementation choices (pragmatism of principles) and compromises of those animating principles themselves (principled pragmatism). It thus considers the pragmatic approach to pragmatism itself—here actors are not confronted with the issue of operational choices within a set of principles consistent with an underlying ideology. Rather here actors are confronted with the willingness to move away from one or more of the cluster of principles animating any original approach to attain objectives in the face of principled opposition from actors essential to the successful attainment of regulatory goals. The principles of pragmatism may permit the dilution of principle to attain the core objectives to which those principles are directed.

Yet it is not clear how pragmatism can be invoked in this respect and still preserve a substantial fidelity to the core objectives of the treaty process. In order to avoid unprincipled pragmatism, and in a context in which the ideal treaty is impossible as a matter of theory, it may be necessary to articulate principles through which pragmatism may be structured. That process, in turn, may require the application of an objectives based pragmatic approach to the embedding of principle which was at the heart of the UNGP process itself. This produces an irony that is briefly explored in the conclusion, an attempt at developing a coherent set of principles in the style of John Ruggie’s principled pragmatism but this time bent to the service of the treaty project.