After much well curated public and private activity, the Open Ended Inter-Governmental Working Group on TNCs and Other Business Enterprises With Respect to Human Rights has released its Second Draft of a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises. It comes almost a year after the release of the first Draft--which generated substantial support among those inclined to embrace its normative or strategic objectives, and substantial criticism among everyone else.
The Second Draft is the product of a rather intense engagement, by those invited, to reactions by others of the initial draft, the public performance of which was held at the IGWG's
fifth session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, "The revised draft served as the basis for direct substantive intergovernmental negotiations during the
fifth session of the OEIGWG, which was held from
14 to 18 October 2019, in Geneva.
The report of the fifth session is available here." (IGWG Website HERE).
While there have been changes around the edges (to be discussed in a future post), the IGWG and its supporters took pains to affirm and deepen their commitment to the fundamental structure and approach adopted for the First Daft of 2019. That is a pity. It conforms the Draft as an almost purely academic exercise--that that provides a useful distraction of some of the most potent minds in the field of business and human rights. Thsu distracted in the construction of this idealized and highly flawed bauble (specific critique
HERE), they are less available to undertake the serious work of investigation that would serve as a means of developing accountability structures that some somehow feel could arise, as if by magic, from the legal codes of states most of which are disinterested in or lack the capacity to engage in the sort of normative transformation called for in the IGWG Draft.
But fair enough. The FRaft is designed to provide a vehicle through which the academic and civil society vanguard can effectively push the governments of developed states (at least those whose politics are to their liking) to project their law (under cover of the fig leaf of internationalization) into the rest of the wrld. In a way thsi si something that ought to appeal to the emerging empires in the US , China, and the EU. For each, the Treaty Draft provides the legal basis for the development of a legal imperialism through which the ability of states that traditionally serve as the receptacles of global production might be relieved of even the pretense of a need for taking on the sovereign responsibility of managing their economic policies and affairs.
Also fair enough. But in the end, the Treaty Draft continues to suffer from its fatal defect--it just does not work as law. It sounds like law, it purports to direct or "make" law, but much of it fails both for a flawed complexity, and for the ambiguities that twist its provisions into unworkable standards. Or better put, into standards that can be worked to mean whatever it is that a pliant judiciary--or legislature--might be induced to clarify. In the end it remains more normative sentiment than law, more aspiration for a conception of a "better world" than the makings of a system through which it may be realistically managed.
All of this could be avoided had the drafters undertaken the most logical and simplest next step from the endorsement of the UN Guiding Principle--the development of a Framework Treaty that would, as a start, legalize the provisions of the UNGPs. There is a Draft for that worth considering in lieu of the baroque conceptual but deeply flawed masterpiece offered once agan by the IGWG and its backers. See
HERE.
The Second Draft text follows and may be accessed
HERE.