The Ideological Basis of a Comprehensive Treaty on Business and Human Rights: Choosing Among Status Quo, Evolutive and Transformative Visions

(Pix © Larry Catá Bacer 2016)

I have been considering the ideological foundations of the comprehensive treaty for business and human rights, the elaboration of which is the principal task of the U.N. appointed  Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG) (Revealing Ideologies for a Comprehensive Treaty for Business and Human Rights).  The context is the broader conceptual issue of treaty elaboration in general--and more specifically on the relationship between principle and pragmatism in the conceptualization, drafting and interpretation of treaties (see Can Pragmatism Be Principled? With Application to the Elaboration to Comprehensive Treaty for Business and Human Rights).  

What has become clear is that the Mandate of the IGWG does no so much express a single set of restructuring principles for the elaboration of a comprehensive treaty so much as it  appears to invite the elaboration of such principles in the course of elaborating a treaty.  That is, form the perspective of the sort of careful work required so so complex a project either an invitation to build a monster from out of whatever mismatched parts various stakeholder groups with power can live with or use strategically (according to their calculus).  Or it will require the elaboration of a set of coherence reinforcing structuring principles as a preliminary to the elaboration of the treaty provisions that will serve to give these principles effect. 

But the mandate also constrains the choices among the universe of structuring principles that might be embraced in the treaty draft process. This post considers the three likely competing ideologies that will produce three distinct sets of structuring principles for the elaboration of the comprehensive treaty.  Together they suggest the possibilities if three radically different elaborations of a treaty for business and human rights. 

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The consideration of the great framework principles that might be extracted from the mandate for treaty elaboration of the IGWG suggest the broad objectives and substantive principles around which a comprehensive treaty will be elaborated. Yet, the Mandate neither suggests the choice nor the principles for making that decision. This raises the first of the great issues that must be confronted and resolved in the movement toward a treaty—a choice among competing framing principles, that may not be entirely complementary, and indeed in most respects are incompatible in the effects that flow from their implementation. These can be divided into three broad: categories: status quo, evolutionary or re-characterization, and transformative objectives.  These are further refined by secondary framework objectives that are structural and methodological but also ideologically driven. These include framework treaty objectives, institutional objectives, and systemic objectives.  Each is briefly discussed in turn and from that the contours of principled pragmatism is sketched.   

1. Status Quo objectives.

These are are the most conservative.  A very narrow reading of the ideological implications of the mandate might suggest that it requires nothing more of the  state than the conversion of the U.N. Guiding Principles themselves into an instrument of international law. That upsets no traditional law or principle. It does not confront the great principles of corporate autonomy, of the limits of national jurisdiction, or of the substantial legal limitations to the determination of liability among groups of enterprises engaged in production chain relations. This is an approach that preserves the appearance of having created ”law” without affecting the legal relationships of the parties under “law.”  

2.  Evolutionary or re-characterization objectives.

These might be understood as an incrementalist approach.  The incrementalism inherent in this approach embodies both a principle (move the business and human rights project “forward”) and a pragmatic choice (constraining treaty provisions so that they modify but do not substantially change  the status quo). This approach is grounded in embracing the “stage setting” elements  of the mandate; that is, to frame a treaty that can provide a basis for movement toward a more transformative goal but to do it in a way that opens possibilities while not coercing them. At bottom, this seeks to embrace the U.N. Guiding Principles but to improve them within the conventional ideologies of state system-based public law edifices well-constructed by the last third of the 20^th century. By using a treaty to effectively transform the UNGO second Pillar responsibilities to respect into law As such, this approach avoids the difficulties of forcing states to change their relationship to international law, while adding the legal dimension to corporate societal obligations that had been among the biggest criticism of the UNGP’s polycentic approach. As such, evolutive and re-characterization objectives suggest a fidelity both to the project of internationalization and of legalization of the substantive norms around which a law of business and human rights may be constructed.  But it also relies on national judiciaries to enforce these new international law within their domestic orders. But it might also produce a willingness to accept incrementalism.  Incrementalism may produce a tolerance of fracture—the piecemeal negotiation of provisions of a treaty that does not produce coherence or the elaboration of a singular vision, but instead produces a framework that permits further negotiation and refinement as a work in progress and through application.

3. Transformative objectives, 

These represent the broades reading of the ideological principles embedded in the mandate. It suggests a pragmatic choice based on the transformnative principle:  to further the project of internationalization through law beyond the state but imposed through the state. Transformative objectives offer a number of variations—the choice among which may reflect pragmatic considerations (reflecting the views of critical stakeholders, furthering privileged agendas, ensuring the completion of the elaboration project and the like, choices among which might be principles driven)-  These variations speak to four distinct approaches to the construction of an internationalized legal order: (1) an ideology-objective of constructing a stronger unified system of global law administered through states; (2) the construction of a global law administered through a global governmental apparatus; (3) the creation of a centralized prosecutorial and remedial mechanism; and (4) a transformation of the ground rules of globalization itself. But it might also veer toward utopianism—the objective being to frame a distinct vision of the world that will serve as a touchstone for the future (like the Universal Declaration of Human Rights) without any expectation that a treaty looking anything like the vision will come into force—at least in the short run.

The choice of any of these framing principles is plausible under the mandate. The way in which the IGWG is to choose among them is impliedly pragmatic—it is grounded in the obligation to collect inputs at the first IGWG meeting from states and relevant stakeholder. Those inputs would provide a principled way of making a choice “on possible principles, scope and elements”, one based on the strength of collective sentiment among those involved in the treaty elaboration process.  That choice is not mandatory—it is possible to avoid any systematic and coherent approach—to disaggregate the process and seek input solely with respect to the cluster of provisions powerful groups might like to see in a treaty. That, certainly would amount to an embrace of a status quo or evolutionary approach at its base, but one in which coherence would be lost. In its place would be a collection of provisions that could be strategically gamed connected only by their location within a single document denominated “treaty” and given the effect of “law.”

In any case, those choices among these framing objectives are refined by a set of secondary principles focused on institutional and methodological objectives. These principles embody sets of pragmatic choices about the way in which the framing ideology can be organized and the broader objectives that the framing ideology should attain.  All three alternative structuring principles will also have to deal with these sets of secondary operationalization principles.  

A. Framework or treaty format objectives touch on those matters relating to the process of treaty elaboration.   move the discourse from principle in the elaboration of a treaty to the principled pragmatics of the treaty’s construction.  The first  touches on principles of transparency. The more transparent the treaty elaboration, the more likely there will be broader and deeper participation.  The less transparent and more controlled the process the more limited the participation. Transparency touches on the fidelity to democratic or mass principles in international norm making, something that neither the great states nor the great civil society organs have a history of fostering. The second touches on principles of participation. If transparency makes it possible to access the process, participation goes to the opening of a place at the negotiating table.  For the most part it is unlikely that broad participation will be facilitated—the transaction, expertise and capital costs of participation tends to be high.  And the inability to break into established networks of influence and communication might make it impossible to effectively participate. The third focuses on the operationalization through states  or international organizations.  Here one confronts the unresolved tensions about the internationalization of law and the autonomy of states. Structurally the principles suggests that legal unification might be best served by the delegation of administration to a centralized international body. But the principle of national autonomy would leave administration to the state with a weaker central authority with limited supportive roles. 

B. Institutional objectives touch on a parallel set of principles that affect the principles of operational elaboration of the  treaty. What makes these objectives different is that they touch on principles of institutional organization and relational order, rather than on normative principles in the first instance. These require a sense of the placement of the administrative center of the treaty norms.  An internationalizing focus would result in a move toward establishment of centralized administration in an international organization,.  A more state-centered approach would devolve operations to the states with a much less elaborate system for inter-state communication.  The former enhances coherence and harmonization but reduces state autonomy.  The later enhances state autonomy but reduces the coherence of the norms. A treaty of the sort contemplated by the mandate will likely require an international apparatus of some sort. Yet, the character and scope of such an apparatus is not apparent on the face of the Mandate. 

C. Systemic objectives, last, bring the focus back to core principles. The treaty represents, at its foundation, an operationalization and elaboration of the principle of law over governance, of the state over the enterprise, and of public rather than private governance structures. The treaty can be understood as an exercise in preserving the privilege of law as the form of legitimate regulatory governance. The treaty, in its entirety, represents the articulation of an emerging system one sees clearly for the first time here:  one in which states retain the only legitimate authority to create law binding on individuals, but that states cede to international organization the authority for leadership in determining the policy objectives which law serves—to the community of nations assembled as a sort of vanguard party whose leadership is binding (in the sense that international law is binding) by creating duties on states to legislate and administer the policy objectives of the international community. More specifically one comes face to face with the tension between the legal obligations of states under international law—that is to other states—and the constitutional obligations of states under national constitutional traditions to their own polities . Issues of democratic deficits,already troublesome where powerful states and multilateral actors impose their sense of internationalized norms on developing states, will only be exacerbated through the process of elaboration of a treaty . 

The framework choices now become clear—as do the consequences of choice for shaping the basic approach to treaty elaboration.  But they are also complex. The Mandate permits, and indeed sketches, a broad matrix of possible aggregations of ordering and structural principles that can frame coherent approaches to treaty drafting. Each combination produces a coherent approach to valuing the utility of the potentially large set of possible specific treaty provisions that can be combined to maximize its effectiveness in implementing the ordering principles. And conversely each provides a method for evaluating the negative effects of particular provisions to the integrity of the ordering vision that gives the treaty its coherence. That ability to assess provides the essential element to the task of pragmatic decision-making in treaty construction from out of principle.

The assessment of the effects of provisions suggests the character of the treaty—its aggregate object.  And the measure of the value of those aggregated effects may only be made by reference to the principles the effects producing provisions are meant to enhance.  “The means employed for the exercise of choice is the foundation of the pragmatic challenge in treaty elaboration. The principles that serve as the the standards against which the value of effects producing factors are measured serve as the principles that guide pragmatism--that is that guide choice among plausible alternatives constructions of a treaty. It is in this sense that one can speak about principled pragmatism--that is the application of standards of value to the choices that must be made among competing choices whose aggregations produce effects that change dramatically the conception of the object that they affect.” (here).