Law at the End of the Day: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019

(Pix this post all © Larry Catá Backer 2019)

It is always exciting to engage in the production of nostalgia. That is even more the case when the production is for a worthy cause. And there is probably no worthier cause to my mind than the project to robustly embed a strict sensitivity to human rights norms within the operations of economic enterprises, or broadly, within the cultures of economic activity however undertaken.

Even as political, social, and economic power fragment along new and ever more complex lines, many well-intentioned, sophisticated, and thoughtful people remain committed to a view of the world that has not only disappeared--except as to the wisps of its form that still serve as a means organizing factions--but that is being recast in ways we can hardly understand. In a world in which law is being transformed into data with consequences, where enterprises increasingly govern their production chains through regulatory contract, where administrative discretion carries more weight in the public and private sector than the rules with respect to which they are rarely held to account, and where the boundaries between the public and private interventions of state and non-state institutions have become blurred (to put it mildly), it is hard to generate much more than a pedantic excitement over the efforts to finally (and three quarters of a century late) develop a gloriously antiquarian instrument for a civilization whose ghosts can only haunt us now.

I speak, of course, of the new Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. "Ahead of the fifth session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a revised draft legally binding instrument on business activities and human rights. The revised draft will serve as the basis for direct substantive intergovernmental negotiations during the fifth session of the OEIGWG, to be held from 14 to 18 October 2019, in Geneva." (Source: Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights: Mandate).

Still, this is a worthy exercise (as I have suggested before (here, here, here, and here), not so much for its stated objectives, but for the principles and perspectives they may generate to contribute to the next generation of structural governance instruments that will have top be developed over the course of the next decade. To that end, a study of this Draft "Legally Binding Instrument" is both worthy and important--not just out of respect for those worthy people whose vision is therein articulated, but also for the value that its insights and failings contribute toward the useful end of embedding principles and expectations grounded in human rights within all economic activities. It will be useful, in that respect to compare this Draft to the original Zero Draft that circulated last year.

Lastly, serious study may be helpful to the members of the OEIGWG as they approach their consideration of this draft in October 2019. OEIGWG will officially and publicly consider the Draft Legally Binding Instrument at its next meeting in October 2019. It might aid the OEIGWG and their advisors, including those charged with the drafting and defending of the Draft Legally Binding Instrument to receive thoughtful commentary by stakeholders and other interested parties. In its Note Verbale by the Chairmanship of the Working Group regarding the release of the revised draft legally binding instrument it was noted that:

The Chairmanship will convene informal consultations with Governments, regional groups, intergovernmental organizations, United Nations mechanisms, civil society, and other relevant stakeholders, before the fifth session of the OEIGWG, including on an updated program of work, in accordance with additional information to be announced in due course.

The Coalition for Peace and Ethics, as a member of that large group of interested stakeholders largely ignored by those who have been selected to influence the process--that is, as part of what the OEIGWG dismissively implies as the class of "irrelevant stakeholders"--urges all similarly situated stakeholders to make their views known to the OEIGWG and their functionaries before October 2019. We encourage all civil society, business, state, and other actors, to participate actively and fearlessly in the process leading to (and eventually from) the efforts to fashion this instrument in this way. CPE will be delighted to post those comments as well to its website as part of its Coalition for Peace and Ethics Project on the Effort to Elaborate an International Instrument on Business and Human Rights (for CPE Treaty Project analysis of the prior draft see ZeroDraft). Direct comments to igwg-tncs@ohchr.org.

In addition, over the course of the next several posts, the Coalition for Peace and Ethics BHR Treaty Project will consider this Draft "Legally Binding Instrument." For this post the CPE-Treaty Project provides a copy of the Draft, which follows along with the Note Verbabale (along with additional links).