Revealing Ideologies for a Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Bacer 2016)

Quite belatedly, I have been thinking about the relationship between framing ideologies and the production of regulatory systems.  There has been an important focus recently on the effects of governance--the framing instruments and their provisions, that produce effects.  But there is somewhat less thinking about the aggregation of these effects on the conceptualization of the object of these effects.  A strong impulse is to work backwards--to extrapolate from effects the framing ideologies that give rise to the provisions producing effects. But this sometimes does small justice to the ideologies--the principles and normative frames of reference--from out of which the provisions are conceived and against which they might be judged. These may be found in orienting documents and provisions--preambles, objectives mandates for special procedures, or in the organizing ideologies of the political community in which the project is to be undertaken.

These issues are much implicated in current efforts to elaborate a comprehensive treaty on business and human rights through the work of a U.N. appointed  Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG). The mandate of that enterprise provides a great opportunity to think through the way that framing ideologies may be created and manage the process of rule creation. 

What follows are some preliminary observations about what the Mandate might tell us about the framing ideology of the effort, now ongoing, to elaborate a comprehensive treaty for business and human rights.





In 2014, the UN Human Rights Council established an Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG) with respect to human rights, and mandated the working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” (Human Rights Council, ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights,’ A/HRC/RES/26/9 (14 July 2014)). The Mandate recommended that the IGWG “to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument” (Human Rights Council, ‘Elaboration’ supra). In line with the Mandate, The UN Human Rights Council directed the newly created IGWG to devote its first two sessions to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument." (M. Espinosa, ‘Report on the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, with the mandate of elaborating an international legally binding instrument,’ HRC 31st Sess, Agenda Item 3, A/HRC/31/50 (5 February 2016)). A second session is forthcoming.

The IGWG has been hard at work.  It has heard from a number of important an influential stakeholders.  It makes sense, then, at this early point in its Mandate, to consider the ideological parameters within which the discussion of the elaboration of a treaty is to occur.  That is, it may be useful to remind oneself, again, about the framework within which the normative, structural and institutional objectives are themselves elaborated.  This is necessary, of course, first to ensure coherence in the elaboration process, and as a means of developing those standards against which the work of elaboration may be assessed, and, if possible advanced. 

The exercise is most usefully commenced by considering the text of the mandate itself.

Resolution adopted by the Human Rights Council
26/9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights

The Human Rights Council,

Recalling the principles and purposes of the Charter of the United Nations, 

Recalling also the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, 

Recalling further the Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986, 

Recalling Commission on Human Rights resolution 2005/69 of 20 April 2005, in which the Commission established the mandate of Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, and all previous Human Rights Council resolutions on the issues of human rights and transnational corporations and other business enterprises, including resolutions 8/7 of 18 June 2008 and 17/4 of 16 June 2011, 

Bearing in mind the approval of the Guiding Principles on Business and Human Rights by the Human Rights Council in its resolution 17/4, 

Taking into account all the work undertaken by the Commission on Human Rights and the Human Rights Council on the question of the responsibilities of transnational corporations and other business enterprises1 with respect to human rights,

NOTE 1 “Other business enterprises” denotes all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law

Stressing that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations, 

Emphasizing that transnational corporations and other business enterprises have a responsibility to respect human rights

Emphasizing also that civil society actors have an important and legitimate role in promoting corporate social responsibility, and in preventing, mitigating and seeking remedy for the adverse human rights impacts of transnational corporations and other business enterprises, 

Acknowledging that transnational corporations and other business enterprises have the capacity to foster economic well-being, development, technological improvement and wealth, as well as causing adverse impacts on human rights, 

Bearing in mind the progressive development of this issue, 

1. Decides to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises; 

2. Also decides that the first two sessions of the open-ended intergovernmental working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument, in this regard; 

3. Further decides that the Chairperson-Rapporteur of the open-ended intergovernmental working group should prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group on the subject, taking into consideration the discussions held at its first two sessions;

4. Decides that the open-ended intergovernmental working group shall hold its first session for five working days in 2015, before the thirtieth session of the Human Rights Council;

5. Recommends that the first meeting of the open-ended intergovernmental working group serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument;

6. Affirms the importance of providing the open-ended intergovernmental working group with independent expertise and expert advice in order for it to fulfil its mandate; 

7. Requests the United Nations High Commissioner for Human Rights to provide the open-ended intergovernmental working group with all the assistance necessary for the effective fulfilment of its mandate; 

8. Requests the open-ended intergovernmental working group to submit a report on progress made to the Human Rights Council for consideration at its thirty-first session; 

9. Decides to continue consideration of this question in conformity with its annual programme of work.

37th meeting
26 June 2014
A/HRC/RES/26/9

3 [Adopted by a recorded vote of 20 to 14, with 13 abstentions. The voting was as follows: 

In favour: Algeria, Benin, Burkina Faso, China, Congo, Côte d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russian Federation, South Africa, Venezuela (Bolivarian Republic of), Viet Nam 

Against: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom of Great Britain and Northern Ireland, United States of America 

Abstaining:  Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, United Arab Emirates]

____________

What does this mandate tell one about the framing ideology of its own work? At its narrowest, the mandate is quite specific and divided into three parts. First, the mandate establishes “open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human right.” Second, it charges that IGWG “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” Third, the mandate directs the focus of the work of the IGWG during its first two sessions: “constructive deliberations on the content, scope, nature and form of the future international instrument, in this regard.” The mandate sets a deadline and specifies the product of its charge—the preparation of “elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group on the subject, taking into consideration the discussions held at its first two sessions.” 

Is it possible to extract a framing ideology  too around which structural principles for treaty elaboration may be framed? The question is important.  The Mandate could not have been given in a vacuum. And the Mandate holder, the IGWG could not have been sent off on a three year adventure with no more guidance than a charge to elaborate an instrument formally denominated "treaty". It is true enough the the Mandate could have directed attention to objectives without any sense of framing principles or ideology, but had that been the case why the substantial structural management set forth in  the long list of prompts--"recalling," "bearing in mind," "taking into account," "stressing," and "emphasizing" a number of key elements that suggest the framework of ideology within which the work of the IGWG is to be undertaken. 

First, states are privileged in this enterprise of treaty elaboration. There will be no repeat of the tripartite formula that marked the tempestuous but more contemporary process producing the UNGP. Instead, power is vested in an intergovernmental working group representing states. Others may be consulted, as is now the habit of the UN agencies (Discussed in P. Willets, ‘The Cardoso Report on the UN and Civil Society: Functionalism, Global Corporatism or Global Democracy?,’(2006) 12(3) Global Governance 305). Civil society groups, including business, are no longer accorded even the appearance of privileged participation in this process that is meant to be, formally at least, state driven (¶5). This is no secret. The Resolution stresses “that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations.”(¶1) The Mandate reminds the IGWG of the value of appropriate consultation with experts, to aid but not to engage with the Mandate objectives (¶6)--servants but not partners.  This remains an inter-governmental affair. The question, then, is the extent to which states and international organizations parse responsibility.

Second, the mandate suggests the respective roles of enterprises and civil society both in treaty elaboration and in the human rights protective system furthered by the treaty. These suggest a set of principles that are to be furthered in treaty drafting.  "[T]ransnational corporations and other business enterprises have a responsibility to respect human rights . . . [and]  the capacity to foster economic well-being, development, technological improvement and wealth, as well as causing adverse impacts on human rights." Civil society, on the other hand, "have an important and legitimate role in promoting corporate social responsibility, and in preventing, mitigating and seeking remedy for the adverse human rights impacts of transnational corporations and other business enterprises." (Preamble). Together they form two segments of a three part system that can be made better if directed through the normative structures of international law, embedded in and enforced by states. It rejects the idea of private law making and private societal normative systems (Economic Globalization and the Rise of Efficient Systems of Global Private Law Making:  Wal-Mart as Global Legislator,  39(4) University of  Connecticut Law Review 1739-1784 (2007)). It embraces, instead, the idea of a public set of responsibilities for at least one segment of organized economic activity and one segment of civil society, and then ties that responsibility to international law and the state. But it also gives form to the public obligation of transnational corporations--the responsibility to aid in the attainment of those objectives that in another age might have been understood as the heart of the province f the state.  In a sense, then, the Mandate recognizes the privatization of the state duty to its citizens, and of the international community's obligation to gap fill in those spaces beyond the state (globalization's principal challenge).  Rather than reverse the privatization, the Mandate embraces it.  It returns these objectives to the public sphere through legalization.  And it deputizes civil society as an enforcement agent.  It effectively takes the existing system of private governance  and re-inserts law and the state: law from the international sphere and the state as international law's agent. 

Third, the mandate stays close to traditional approaches to international law making. There does not appear to be a charge for the transformation of legal or economic orders. Nor does it imply a transformed role for international law above or within states. The object is an international legally binding instrument. That might reference a traditional treaty—which, unless it assumes a role of jus cogens, may be adopted or rejected by states as they see fit, and may be adopted with such reservations as suits the adopting states. Nor does it imply an obligation to transpose the instrument, binding in international law against states, into the domestic legal orders of any state. The conventional ideology, then, appears to assume the possibility that a single comprehensive treaty will produce a potentially large number of legally effective variants.And yet the mandate opens the door to transformational approaches to the issue of international law making--its premises, scope and operation. The Mandate quite pointedly reminds the IGWG to take into account "all the work undertaken by the Commission on Human Rights and the Human Rights Council on the question of the responsibilities of transnational corporations" (Preamble). That is a history that includes not just the long road to the UNGP and the Global Compact--but also the even longer road to the Norms (Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, ECOSOC, 55th Sess., U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003) (the UN Norms)).  And not just the UN Norms but a rich and complex history redolent with the ideologies of the New International Economic Order (A/RES/S-6/3201, 1 May 1974) ("Regulation and supervision of the activities of transnational corporations by taking measures in the interest of the national economies of the countries where such transnational corporations operate on the basis of the full sovereignty of those countries;" Ibid., ¶4.g) and its focus on sovereignty and the contextually distinct application of law.

Fourth, the object of this internationally binding instrument is the regulation, in international law, of the activities of a subset of economic enterprises. The meaning of “in international law” is quite flexible. For conservatives, it means no more than describing the obvious constraints on the applicability of international law—an obligation of states, but with no direct effects on enterprises or individuals, except to the extent transposed into domestic legal orders. Beyond the domestic legal order, international law also constrains the ability of the application of such regimes in one state to be adopted in any other. There is room for such imposition, but that would appear to stretch the mandate, or at least to interpret it broadly.Yet it leaves the door open for more radically transformational interpretation.  It suggests only the role of international law as the norm generator.  It may not suggest the current impediments of international  law to embed itself within the domestic legal orders of states.  And indeed, given the entirety of the Mandate, one can see in its an ideology to move forward the project of the reworking of the contemporary hierarchy of law , one in which national constitutions are displaced at the apex of authority by the overarching normative rules of international law--or at least, for the moment, the "higher law" of the International Bill of Human Rights.

Fifth, the scope of coverage is limited to “international human rights law.” That appears on the one hand broad—there is a lot of international human rights law, and some international tribunals have sought to treat human rights instruments as fundamentally different in character from the run of the mill treaty Inter-American Court, The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75), IACHR, Series A, No. 1, ¶ 29 (Advisory Opinion OC-2/82 (sept. 24, 1982): “In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other states, but towards all individuals within their jurisdiction”). But see, A. Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights,’ (2002) 14(3) European Journal of International Law 529). 

But it is also narrow—it does not include international human rights norms or other writings that do not have the effect of international law. It appears, though that the mandate builds ambiguity into this portion of the charge, recalling the Universal Declaration of Human Rights and the 1986 U.N. General Assembly Declaration on the Right to Development (Mandate Preamble). But the recalling of some of the more fundamental instruments international human rights law, norms and sentiment, does not suggest the extent to which these may be transformed into binding law, even international law, by the operation of the comprehensive treaty on business and human rights. Such a back door methods of legalizing and extending the effect of these instruments would be clever, indeed, but would depend, as international law principles they recognize, the agreement of states that would bind themselves—and only to the extent of their willingness to be bound. It does suggest, however, the ideology that these non-binding instrument advance.

Sixth, though the state is the driver of human rights legalization, public international organizations play a leadership role as the source of that legalization. The interplay between international legalization, national context, democratic principles and global harmonization remains unresolved. The tension between states as the operative engine of human rights implementation and international organizations as the source of law continues unresolved an old conversation about the nature and role of international law and its relation to the constitutional orders of states (Generally L. Henkin, International Law: Politics and Values (Springer, 1995) (origins of present state system and its consequences for shaping the form and constraints of international law with an emphasis on sovereign and equal nation-states)). On the one hand it suggests the sort of easy extraterritorialization that civil society embraced in the form of Pre-Kiobel (Esther Kiobel v Royal Dutch Petroleum 133 S Ct 1659 (2013)) U.S. juridical jurisdictional conceits. On the other it suggests the paramount role of international organizations as the source of superior law binding on states and administered through their courts (See, UNGP, supra., S. Skogly, ‘Regulatory Obligations in a Complex World: States’ Extraterritorial Obligations Related to Business and Human Rights,’ in Surya Deva and David Bilchitz, (eds.), Business and Human Rights: Exploring the Contours of a Treaty (Cambridge, forthcoming 2016). Cf., ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights2 3 (Jan. 2013)).

Seventh, the potentially transformative potential of the comprehensive treaty project is itself intimated but not declared, through the traditional method of “recalling,” “bearing in mind,” and “taking into account.” These bring within the framework of elaboration not just the UNGP, and their ideology of fidelity to the limitations of international law and the state system on which it is built, but as well to the rich history of efforts, especially by developing states to transform the character of economic globalization and to impose substantial restrictions on transnational enterprises, especially those with apex entities in developed states. To that end, the production of an international legally binding instrument may be interpreted as being substantially broader than a treaty—it might suggest the broadness of the UN Norms to bind enterprises and individuals, as well as states, to embed itself within domestic legal orders despite constitutional barriers to such an action in national law.  Indeed, the Mandate was careful to take into account “all the work undertaken by the Commission on Human Rights and the Human Rights Council on the question of the responsibilities of transnational corporations and other business enterprises”, the body of which includes the Norms themselves, and the ideologies that supported the Norms.

Eighth, the other constraint on treaty elaboration discretion is the object of regulation—the activities of transnational corporations and other business enterprises. A broad reading would suggest this includes all enterprises in global production chains. A narrow reading would suggest that this includes only enterprises, whether organized as corporations or in other forms, that are transnational in character. And indeed, the drafters of the resolution, in the Mandate's only substantive footnote made clear their intent in this regard that the instrument was to apply only to transnational entities. But even at this early stage that aspect of the mandate has met resistance. A recent analysis suggests the extent of the rupture (See, Cardoso and Miola, The Treaty on Transnational Corporations and Human Rights, supra., n. 35 (“focusing on TNCs – is more often advanced by CSOs and social movements from the global South. The second view, in turn, can be identified in the contributions of proponents from varied origins, but mostly from CSOs from the global North, as well as from representatives of the corporate sector and the European Union.” p. 18)).

The IGWG mandate, then, provides the borders within which a discussion of framing principles may be attempted, and then used to further the project of treaty elaboration. It is, in effect, an invitation to make choices about the principles that will be used to guide choices that will produce provisions the aggregated effects of which will further the structuring principles from which they were framed. The importance of the IGWG’s first session objective, “to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument” becomes clearer in this context.It provides constraints for the choice--the supremacy of international law, the state as the driver of the process, the leadership authority of multilateral organizations, the acknowledgement of the substantial and continuing privatization of a significant public authority in enterprises, the privatization of enforcement and monitoring roles for civil society, and the rejection of the notion that stakeholders other than states may be subjects of law.  Everything else is left open. Respect for state sovereignty may require respect for the anchors of economic globalization--the autonomous legal personality of corporations, and their control by chartering states, the sanctity of asset partitioning (Larry Catá Backer, The Autonomous Global Corporation: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality, 41(4) Tulsa Law Journal 541-571 (2006)), and the principle of enterprise welfare maximization.  Or alternatively, it may permit the creation of multilateral arrangements for the avoidance of these principles under certain circumstances. Likewise respect for state sovereignty may limit the reach of the treaty to those states who choose to adopt and embed it, respecting reservations and other limitations.  Or alternatively, it may sweep away the traditional limits of international law and impose regimes of direct effects. Last, it creates a for a principled approach to reform that is itself limited to the legalization of the UNGP and its enforcement through the judicial institutions of states--leaving open the contests and strategic gaming of jurisdictional forum shopping.

The danger of this invitation to elaborate framing principles simultaneously with the elaboration of the provisions of the comprehensive treaty itself is also obvious.  That danger is that there will be no framing principles to guide treaty elaboration, and that the provisions themselves will wind up as a relatively unconnected set of provisions which each of the stakeholder participants had the power or strategic ability to embed in the document.  The end product, then merely a collection of pet provisions, may do little good and might actually do harm.  Embracing the power of legalization is a worthy objective.  But producing bad law, and especially bad law at the international level, may do more harm than good.