Wednesday, February 08, 2017

Ruminations 70: American Anti-Multilateralism and the Prospects for a Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Backer 2017)

I have been closely monitoring and writing about the 45th Presidency's potentially significant transformation of the principles of U.S. foreign engagement. Much of it is critical (e.g., here, here, here, and here). Yet for all the activity, the implications of these early administration efforts remain obscure. What is clear is that  at best the United States will be reluctant to participate in multilateral treaty negotiations that touch on matters other than national security, extradition and trade.

It is no surprise, then, that little has been written about the cumulative effect of changes in the ideology of American internationalism on the future of any comprehensive treaty on business and human rights, the parameters of which are even now at the center of the work of the 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.” Human Rights Council adopted resolution 26/9.  The Report of the first session may be found at A/HRC/31/50; the interim second session report may be found HERE).  

In this post I briefly consider the possible effects of the U.S. rebooting of its engagement with the global community and with the legal structures of globalization. 

The U.S. rebooting of its approach to international engagement has yet to be fully realized.  It is not clear what the underlying objectives might be and the theory and principles underlying the substantial shift in policy has yet to be clarified.  Thus prognostication is difficult under these circumstances.  It is made more difficult till by a growing sense that such abrupt shifts are little more than a negotiating tactic by a 45th Presidency more adept at negotiating style than in underlying animating principles consistently applied. 

In the face of this uncertainty it comes as no surprise that I am of of two minds. Part of me agrees with the assessment of some elements of global civil society that have argued that with the US absent multilateral agreement may be possible in ways that were more difficult with the US in the room. And the US would be coerced into compliance if only because their enterprises would have no choice but to comply in their overseas operations—especially if a robust remedial mechanism is created and works. This is a best case scenario: if all states downstream in production chains enact a robust treaty, American apex multinationals will have no choice but to comply, and in complying will introduce the normative framework of the Comprehensive Business and Human Rights Treaty to the business practices of U.S. businesses and perhaps in the U.S. as well.

On the other hand, I could believe that that the US transformation in policy is not just about national withdrawal from most multilateralism (the old fashioned isolationism that infects this nations form time to time). Rather I am coming to sense that the intention of these piecemeal announcements and policies has as its object an attack on the multilateral enterprise itself. That is, the United States may withdraw from efforts like the comprehensive treaty so that it devote itself to arguing (and using its muscle to convince other states (e.g. Russia perhaps China (which might be interested for internal reasons of its own)) that such multilateral treaties are illegitimate and an ultra vires expansion of international law and lawmaking beyond the authority of the UN system and all of its creatures. That is, I fear the US is going to aggressively seek to take the rest of the world with it and remake global consensus on international law and its scope. A global community that accepts a scope limit on its power to enter into multilateral agreements that marks as illegitimate assertions of power any agreement other than those touching on extradition, national security and trade, can substantially change the course of global governance. If that is the case then the peril to the treaty effort becomes much greater. Either the international community contorts itself to convince  itself that the comprehensive treaty is about "trade" or it reconciles itself to a new consensus that deems such an effort as beyond the power of states. In the later case the treaty project dies.

Either of these two scenarios then play an important role for those thinking about the approach to treaty drafting--and the objectives of that drafting process.  The less likely the comprehensive treaty is to actually produce a treaty that can be ratified and come into effect, the more powerful the incentive to draft a treaty that is as forward looking as possible to serve--like the Universal Declaration of Human Rights--as an aspirational document and a guide to future efforts.  The more likely that the absence of the U.S. makes the possibility of a treaty more plausible, the greater the incentive to pull back from an aggressive and coherent treaty and produce a treaty that moves even slightly forward toward the eventual goal of a global standard for the development and imposition of baseline legal standards of corporate conduct that might serve as sources of liability under national law cognizable in domestic courts.

Ironically, then, the U.S. continues to play an important role in the drafting of the comprehensive treaty--even by its absence. It's very approach to multilateralism changes the calculus for choosing among the great framing principles  through which a coherent treaty framework may be assembled.  In the forthcoming work,  "Principled Pragmatism in the Elaboration of a Comprehensive Treaty on Business and Human Rights," in Building a Treaty on Business and Human Rights: Context and Contours (Surya Deva and David Bilchitz, eds., Cambridge University Press, forthcoming 2017), I note:

The consideration of the great framework principles that might be extracted from the mandate for treaty elaboration of the IGWG suggested 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.

Status Quo objectives 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 UNGP themselves into an instrument of international law, yet retaining its non-binding character. This might take the form of a Treaty that would embrace the UNGP as recommendations addressed by governments to enterprises, that is as a code of responsible conduct that governments have committed to promoting. 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.”

Evolutionary or re-characterization objectives 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 UNGP but also to improve them[1] by using a treaty instrument to transform the UNGP second Pillar responsibilities to respect into domestic law. This moves the “status quo” objectives substantially forward by embedding the second pillar 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. 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. However, it also relies on national judiciaries to enforce this new international law within their domestic orders. Additionally, it remains silent on the scope of a state’s duty to protect human rights, leaving that entirely to the willingness of states, under international law, to adopt such duties in the first instance. States like the United States are making it clear that they intend to draw away from rather than embrace multilateralism in ordering their domestic legal systems.[2] Moreover, this approach might sacrifice uniformity and interpretive coherence across states, encouraging both forum and rule shopping. It might also produce a willingness to accept incrementalism.[3] 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.[4]

Transformative objectives, represent the broadest reading of the ideological principles embedded in the mandate. They involve furthering the project of internationalization through law beyond the state but imposed through the state.[5] Transformative objectives offer a number of variations—the choice among which may reflect pragmatic considerations (reflecting the views of critical stakeholders, furthering privileged agendas, and ensuring the completion of the elaboration project). 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. 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 stakeholders. 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 and 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 connected only by their location within a single document denominated “treaty” and given the effect of “law.”

But plausibility leaves unanswered the question of choice. Ironically, that choice may well depend on the international climate in the coming years. Between 2011 and 2014, with the success of multilateralism evidenced by the UNGP themselves, evolutionary and even well directed status quo framing principles might have been the optimal strategy for a treaty effort designed to further the project of human rights legalization. But from 2016, the changed climate for multilateralism among key state actors—including principally the United States that moved from suspicious to openly hostile to multilateralism that does not touch on issues of extradition, national security or trade[6]—might change the calculus. Indeed, the more likely that powerful states will seek to ensure that any treaty effort is unsuccessful, the more valuable will be an aggressive embrace of transformative objectives in treaty writing. The object would shift from signing and ratification to setting out a clear vision for the future. On the other hand, the withdrawal of the United States from engagement with multilateral efforts like a comprehensive business and human rights treaty might provide other states the opportunity to group together to produce a workable evolutionary treaty objectives framework, with the understanding that the United States would not participate. But that lack of participation would serve as a trap for the United States—its companies would have to adhere to any treaty in those places where the treaty would be effective (that is ratified and transposed into a domestic legal order without reservations). The transformative model would be most effective where U.S. withdrawal becomes an aggressive effort to coerce other states to treat such treaties as fundamentally illegitimate.[7]

These emerging realities affecting choices among these framing objectives then require a greater focus on the set of secondary principles. The employment of these secondary principles, focused on institutional and methodological issues, might well help guide the specific provisions that could be drafted to enhance the likelihood that any of these framing objectives could achieve the overall goal of producing a treaty that will be signed and ratified. These principles, touching on framework, institutional, and systemic considerations, are each briefly considered in turn.


[1] See, e.g., ‘Joint Civil Society Statement,’ supra., n. 6.

[2] See Draft Executive Order, “Moratorium on New Multilateral Treaties (Jan. 25, 2017, available and discussed in Larry Catá Backer, “The 45th Presidency and Multilateral Treaties--Fear, Loathing and a Repudiation of 20th Century Americanism,” Law at the End of the Day 2 Feb. 2017. . . 

[3] Cf., S. Block-Lieb and T. Halliday, ‘Incrementalisms in Global Law making,’ (2007) 32 Brooklyn Journal of International Law 851 (“Consensus building--for that is what produces global law--takes time and political skill. Once we conceptualize incrementalism in these terms, a theoretical and empirical agenda opens up that includes but far exceeds insolvency lawmaking.” Ibid., 902).

[4] But consider S. Deva, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles,’ in S. Deva and D. Bilchitz (eds.), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge 2013), 78.

[5] Cf. N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford, 2010) (international orders as the new constitutional center beyond the nation state).

[6] See Donald J. Trump, Inaugural Address, Washington, D.C., Jan. 20, 2017. . . , Larry Catá Backer, Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!": On President Trump's Inaugural Speech," Law at the End of the Day, 21 Jan. 2017. . . .

[7] See, Backer, “The 45th Presidency and Multilateral Treaties,” supra.

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