Wednesday, February 07, 2018

Flora Sapio: "Form and Function in International Human Rights Instruments. An Attempt to Work Constructively on John Knox's Vision on Human Rights and the Environment (Part 1)"

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE, HERE, HERE, and HERE, HERE, HERE, HERE. HERE, HERE, Here, HERE and here, and here).

In an earlier post I set out the text of Professor Knox's 1 February Report of the "Framework Principles" (Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment A/HRC/37/59 (Advance Edited Version 24 Jan. 2018)). 
In this post includes Flora Sapio's reflections on the Framework: Form and Function in International Human Rights Instruments. An Attempt to Work Constructively on John Knox's Vision on Human Rights and the Environment (Part 1), that follows below.  It may also be accessed HERE.

Flora Sapio
  In October 2017, Professor John Knox, the United Nations Special Rapporteur on Human Rights and the Environment circulated the Draft Guidelines on Human Rights and the Environment, soliciting views about them. The Draft Guidelies drew on his work over his mandate. Their goal was summarizing the basic human rights obligations of States on environmental matters.

In November 2017, I had the honor to be able to produce and submit a commentary on the  Draft Guidelines on Human Rights and the Environment. The commentary was written together with Professor Larry Catà Backer under the auspices of the Coalition for Peace and Ethics, and can be found here
On February 1, 2018, as his mandate comes to an end, Professor Knox circulated the Framework Principles on Human Rights and the Environment. The full text of the Framework Principles, preceded by a description of the enormous amounts of work that went into researching them is available here.
The Framework Principles were created through more than ten years of work. The Special Rapporteur 
held a series of regional consultations around the world and, with the help of attorneys and academics working pro bono, reviewed hundreds of statements of treaty bodies, regional human rights tribunals, special procedure mandate holders and other human rights authorities that had applied human rights norms to environmental issues. He described the statements in 14 reports, each of which addressed one source or set of sources. 

Based on research and regional consultations, he identified over 100 good practices in the use of existing obligations. He also

held a public consultation and an expert seminar, which included representatives of Governments, international organizations, civil society organizations and academics. He took into account the input received at the consultation and the seminar, as well as more than 50 written comments
While several non-state actors joined their efforts in aiding the Special Rapporteur, the Framework Principles are "directed to states". This post presents some musing on a trend that is visible in the  Guiding Principles on Business and Human Rights, and may perhaps continue with the Framework Principles on Human Rights and the Environment.
While I am reasoning on the Framework Principles on Human Rights and the Environment, this post should not be read as a criticism of the substantive content of the Framework Principles, or of the procedural tools that will be used to attempt to make those principles become a reality. It is, simply an attempt to "work constructively on the vision Professor Knox so ably develops"

Part 1 of my comment is presented below. The second part will be published later this week.
City of Taranto, Italy. ILVA Steelworks

Form and Function in International Human Rights Instruments
Any instrument, and even more so an international instrument, should be judged not so much by its form, but by its potential to fulfil its stated function.

In the material world, form does not necessarily affect function: you can use a lemon to decorate a glass of iced tea, to make lemon liquor, as a children’s toy, or even as a paperweight. The form of the lemon does not determine the different ways in which you can use it.

In the world of international law, a much tighter link exists between the form of instruments, and their function. The form of an instrument determines the ability of actors in international law to:
(a) manifest their will in relation to one or more goals of shared relevance and interest;
(b) act upon such a manifestation of will;
(c) use available international instruments in ways coherent with their will and their actions

The relationship between form and function in international law was, in a sense, much less important at the time of Mare Liberum than it is today. Back then, in the Belle Époque, and in the immediate aftermath of WWII, enterprises, individuals, and NGOs played little or no role in:

(a) the wide consultative processes that lead to the making of international instruments;
(b) monitoring and assessing compliance with the obligations global state and non-state actors autonomously choose to undertake

From the 17th Century to the early 20th Century (more or less) states were states. We all know how states are bound by treaties, because the form of the treaty is the only form that fits governments, and the ways in which all modern governments work. But, times have changed, and a new trend has emerged.

Under this new trend, the United Nations and its agencies have been relying on non-binding, non-treaty instruments to allow all those with an interest in protecting equal rights for all, to act upon their conviction under the protection of the family of nations. The Universal Declaration of Human Rights and the Millennium Development Goals are perhaps the most well-known examples of such trend. The effectiveness of the UDHR and the MDG in building momentum and galvanizing unprecedented attempts to protect the “inherent dignity and the equal and inalienable rights of all members of the human family” and meet the needs of the world’s poorest are simply beyond question. 
This trend, however, seems to be now the object of a dynamic of the contrary kind – at least in some instances. The momentum that is built up by non-binding instruments usually vanishes once those instruments are turned into treaties: enterprises, but also minority, children, women, and other disadvantaged groups have fewer chances to take those instruments into their own hands, and  manifest their will under the moral protection of the UN.
The difference is not just a difference in form, but one in function. While a set of aspirational principles can be embraced and operationalized by those entrepreneurs and corporations who are committed to protecting human dignity, corporations cannot sign or ratify a treaty. 
By way of illustration, ILVA steelworks (Italy) could have chosen to adopt the Guiding Principles on Business and Human Rights, or Framework Principles on Human Rights and the Environment had they existed as voluntary principles in the 1970s and 1980s. But, at that time considerations of economic development prevailed over considerations about quality of life. While Southern Europe enjoyed higher GDP levels than African, Asian, and Latin American countries, poverty existed then as it still exists today. In addition to this, 30 years ago a different awareness of human rights and the environment existed, so the ILVA steelworks contributed to alleviating poverty. But, at the same time it released a total of:
  • 172.123.800 kg of carbon monoxide 
  • 8.606.106.00 kg or carbon dioxide, and all the other emissions you will find listed here
causing a total of 11.500 premature deaths among women, children, and economically and socially disadvantaged inhabitants of Italy.

To get back to what is really a stake in this comment of mine, if one wants to "work constructively on the vision Professor Knox so ably develops", the Principles first have to be placed within this broader trend.
The emerging dynamic whereby “all that which is a set of non-binding principles shall soon become a treaty” is not related to John Knox’s painstaking work, or to any specific cause. It is a much broader dynamic, which nonetheless incorporates the Framework Principles on Human Rights and the Environment as well as the Guiding Principles on Business and Human Rights.

From a purely intellectual point of view, this dynamic is important, because it may unveil a fault line running deeply beneath the very structures that sustain international law, human rights law included. This fault line, if overlooked, may undermine the goals certain instruments try to achieve.
To interrogate the trend I have summarized above in the most constructive way, the question must be asked of ‘what government is now’. In the absence of a government as their representative within the family of nations, enterprises, NGOs, and populations do not have the ability to:
(a) materially sign a document;
(b) state that they have chosen to voluntarily commit themselves to a given set of obligations;
(c) make concrete steps to act upon their commitment;
(d) create, and adopt mechanisms to assess and monitor the compliance of all actors with their commitments

In the world that exists beyond the forms of treaties, these four abilities belong to governments. But they also are a prerogative of enterprises, individuals, and NGOs. What else a contract is, if not a manifestation of will that creates obligations for two or more parties?

Governments have an ability to decide on whether to sign a treaty and thus commit (or refuse to commit) private entrepreneurs, citizens, and NGOs to certain obligations. Enterprises, citizens and NGOs take part to the broad consultative processes which result in the making of international law. But, once non-binding principles become a treaty  they are unable to be rewarded for their efforts because they cannot adopt the very instrument they have contributed to producing. They can still advocate for it, but advocating in favor of compliance with a set of principles is distinct from acting to make those principles become real.
One of the possible questions to be asked, at this point, is where such a difference in status comes from. This question can be further divided in two parts:
(a) when is a government effectively recognized as a government?
(b) what is the minimum common denominator of governments across the globe at this point in history?

While the first part of the question relates to international law, the second part of the question relates to techniques and processes of governance.

[To be continued]

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