Form and Function in International Human Rights Instruments - Part 2
February 11, 2018
This is the second part of a commentary I published on February 7, as a follow-up to a commentary on the Draft Guidelines on Human Rights and the Environment co-authored with Larry Catà Backer.
The goal of the first part of the commentary was to engage constructively with the work of Professor John Knox (UN Special Rapporteur on Human Rights and the Environment). This goal called for going beyond the merits of what have now become the Framework Principles on Human Rights and the Environment (Draft here). One not too far day, the Framework Principles may become a binding treaty.
The process whereby a set of non-binding principles (which already exist at the time of writing, and can be adopted by all those with a stake in protecting the environment) becomes a treaty is a process involving the relationship between what, in the first part of my post, I called "form" and "function". This is a much broader relationship that highlights a fault-line running beneath the edifice of public international law, and which may (or may not) undermine it.
In an attempt to better understand this latter point, in the first part of this post I reframed the question of "what the state is now" as the question of "what government is". Such a reframing was in my opinion necessary to better identify one of the "contradictions" in international law. I further divided the question of "what government is" into the two-fold question of:
(a) when a government is effectively recognized as a government;
(b) what is the minimum common denominator of governments at this point in history
In this second part, I am providing a tentative answer to both questions. Considered within their respective yet inter-dependent domains (international law, transnational governance) these questions prove how:
(a) the structures generating and sustaining international law are inherently customary - hence much closer in nature to non-binding instruments than to binding ones;
(b) the entirely voluntary, non-binding, flexible nature of transnational instruments is the key elements allowing transnational regulation (UN system and human rights law included) to exist and develop;
(c) an emerging trend towards the transformation of non-binding principles into binding treaties would perhaps not be fully coherent with the very logic of transnational regulation.
The entire edifice of transnational regulation is premised on a hierarchical arrangement. Within the UN system, states exist at the top of a pyramid of highly heterogeneous actors - enterprises, individuals, and NGOs, and act through their governments. But, when is a government a government? To this question, which is a fundamental question, no international legally binding instrument provides an answer. In practice, a government is recognized as a government through a relational act performed by one or more of its peers. Outwardly, this relational act can be classified through well-known taxonomies. In any case, such an act is a voluntary act perfomed outside of any treaty-based obligation. The recognition of a state is the
"manifestation of the recognizing government's subjective opinion on the legal status of the government in question"
A similar line of reasoning applies to enterprises and NGOs. NGOs and enterprises are some of the entities contributing to the making of international law through their participation to a variety of fora, but
No binding instrument provides an answer to this question. The existence of NGOs is accepted a matter of fact (see art. 71 here). Accreditation is a mechanism that regulates the participation of an NGO to international fora (see II.18 here), and as such has no bearings on the existence of an NGO.
Despite the increasingly important role NGOs have come to play in international law, the matter is not regulated. At the very basis of the existence of an NGO, however, one finds an entirely voluntary act whereby a group of persons decide to pursue a common aim.
It seems that acts performed on an entirely voluntary basis, outside of the codified structures of international law, are sufficient to bring into existence two of its most important actors at least. It may be objected that these voluntary acts must be supported by a conduct coherent with the stated goals and intentions of both entities. In fact, several means exist to assess whether UN organs, governments, and NGOs, behave coherent with their stated goals. But, I will discuss those in a moment.
By this point of my comment, my position in the "treaties versus non-binding principles" debate should be sufficiently clear. The dichotomy between treaties and non-binding principles is only a seeming dichotomy.
The actors and structures that sustain the edifice of international law, as well as the making of treaties, are all born out of unilateral, voluntary manifestations of will taking place outside of the entire gamut of written, codified norms. If those manifestations of will were regulated by binding documents, perhaps the UN system as it exists now would be eroded, and slowly collapse. Given the absence of a single transnational entity endowed with a measures of power superior of those of national states, such a document would lack legitimacy in the eyes of most if not all governments.
If this is true, then:
(a) the very foundation of the UN system relies on custom, and custom is what keeps the UN system alive;
over time, several customary practices have been codified into binding treaties, while several others have been summarized into non-binding documents, principles, etc. This is particularly true of human rights.
The foundational document that summarizes the pre-existing rights of man, has given life to several binding treaties, but it can maintain its moral and generative force thanks to its non-binding form. An emerging trend, in matters of human rights and environmental protection, that saw the reversal of this established practice would lead to an erosion of the established practices that sustain not just human rights law, but the UN system as well.
(b) more effective than the form of binding treaties, is an autonomous decision to commit oneself to a course of conduct, and to consistently follow it over time;
Since the time when Mare Liberum was authored, these autonomous decisions have driven the development of transnational law. They have given life to each one of the poles of transnational regulations that exist beyond the UN system.
(c) the transition from 'principles' to binding treaties is not an obliged path;
In light of the above, arguments in favor of institutionalizing a transition from non-binding principles to a binding treaty could at least try to prove that an autonomous decision to bind oneself to a certain conduct is always less reliable and less effective in practice:
- when taken by a group of individuals acting on behalf of citizens, than when taken by a group of individuals acting on behalf of shareholders;
- when taken by those who directly keep the very conducts a binding treaty attempts to govern, than when taken by those who enjoy a possibility to indirectly influence decisions made by actors other than themselves
An evaluation of the respective merits of non-binding principles and binding treaties should be based on pragmatic considerations.The word 'pragmatic' does not carry a negative connotation. Being 'pragmatic' does not mean rejecting shared values, or subordinating shared values to materialistic goals and objectives. Being pragmatic means relying on problem-solving and lesson-learning mechanisms, strategies, tool-kits etc. coherent with reality.
The dynamic whereby governance exists beyond the more limited domestic dimension, and relies on hybrid transnational networks of public, private, for-profit and not-for profit entities is well-known and needs not be repeated here. This is the minimum common denominator of all governments across the globe at this point in history.
What is worth asking is the role a binding treaty, or any other instrument addressing domestic governments, but not all the other actors in transnational governance would play within hybrid governance networks.
A question closely related to this one is whether mechanisms solidly rooted within domestic governance systems, but roughly similar across jurisdictions, may provide more effective solutions in environmental governance than binding treaties. As I have observed elsewhere, the emergence of hybrid domestic and transnational governance regimes has highlighted the structural limitations of binding instruments as such. It has also resulted in the creation new means to monitor actors' behavior, and assess compliance with their stated commitments.
The means used to monitor and assess compliance with international human rights instruments share several similarities with other regimes of monitoring and assessment, but with at least two key differences:
(a) they have, in a sense, been borrowed from the domain of hybrid governance, rather than the other way around.
This point is significant, because normally the making of international instruments - whether they are binding or not - follows the opposite process: existing practices are researched, surveyed, and documented. Then, they are brought to a higher level of abstraction, and summarized into documents that do not create any new obligations on states.
(b) for the most part, they employ concepts, methodologies and approaches that are not codified
The most striking example is, perhaps, the entire discourse on 'good practices'. In his February newsletter, the Special Rapporteur makes several references to 'good practices'. In this, he merely follows the established approach whereby consistency with the existing ways of doing things relies not on the brute force of the state and its legislation, but on methods which are generally accepted as superior to all existing alternatives because they produce better results in practice.
This far, the Special Rapporteur has documented more than 100 good practices in environmental protection. These are presented on the Environmental Rights Database: Good Practices in the Use of Human Rights to Protect the Environment.
The analysis of each one of these good practices and their implementing actors goes well beyond the scope of this post. It is to be noticed how:
(a) the generally shared concept of good practices, or best practices, as being superior to all existing alternatives ironically points out the subordinate role of binding instruments. If binding instruments were the only possible way to achieve certain goals, then practices superior to existing alternatives (treaties included) would perhaps not exist;
(b) good practices involve and are created by multinational enterprises and, generally speaking, all the other actors binding documents don't speak to;
(c) good practices can become the object of compilations, but not of binding instruments per se, because they are created by actors falling outside of the purview of such binding instruments
The fact good practices operate through roughly horizontal networks, rather than top-down (as binding treaties do) perhaps points out not so much to the fragmentation of international law, but to the inability of the binding treaty as a legal form to keep up with emerging trends.
Are we witnessing the slow demise of public international law as the privileged tool of transnational regulation?