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At its 26th session, on 26 June 2014, the Human Rights Council adopted resolution 26/9 by which it decided “to establish an 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.”
The open-ended intergovernmental working group (OEIGWG) has had six sessions so far. Ahead of the seventh session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a third revised draft legally binding instrument to regulate the activities of transnational corporations and other business enterprises. The third revised draft will serve as the basis for State-led direct substantive intergovernmental negotiations during the seventh session, which will take place from 25 to 29 October 2021. (From the OEIGWG Website)
An exuberant group of groups committed to a singular and unwavering vision of how things ought to be--how they ought to be irrespective of the views of others, and of the reality that there might well be quite different plausible paths towards the same objective, and at least in appearance even less interested in the emerging realities of plural governance that ironically provided them the authoritative platforms from which they could effectively launch an attack on that very system--have now sought to populate the discussion space with a curious set of positive and negative discursive projectiles. These are likely meant to rally the troops, and to signal to those within their respective communities that there will be a (high) price to pay for opposition to the ideologies, methods and objects (this 3rd draft among them) that constitute the new catechism of business and human rights.
Yet those who have bound themselves to this vision, and the treaty project, are not yet a universal church, nor have they yet been able to legitimately constitute themselves as a Holy Office within which the the spirit of perfection and its manifestation in treaty form, must be recognized, acknowledge, and worshiped. Many people of good will who share the view that economic activity, whether undertaken by states, private economic organizations, churches, non-governmental organizations, and the like, ought to be subject to a consistently applied (and perhaps internalized) set of principles, expectations and behavior norms, the breach of which ought to produce consequences that align with the severity of the breach.
It is in that spirit that the signalling around this treaty by the perhaps excusable exuberance of its proponents ought to be forgiven, but not excused. And certainly it ought to be considered for what it says about the treaty, about its acolytes, and about the process that has brought us to this stage. Perhaps a treaty of the sort that has been strategically curated since 2014 will eventually be adopted--by some. Perhaps it may even be transposed into the domestic legal orders of states; and perhaps it might even be enforced in a variety of interesting ways by bureaucrats and judges, each necessarily loyal to the national orders from which their authority is based.
If we are lucky, perhaps, years from its enactment, a new multi-state commission will be able to sort out the consequences of this treaty based approach, with its differential enforcement of variable standards subject to substantial additional variation in the way that administrative discretion is exercised by those states willing to apply the treaty and subject to the reservations states are likely to practice (irrespective of treaty language to the contrary; usually, as the Polish Supreme Court recently reminded European elites, by reference to the supremacy of domestic law and its constitutional orders--precisely what underlies this treaty effort). Nonetheless, and in the meantime, this exuberant group will have its piece of paper; perhaps it will aid individual and institutional ambitions and the constant fight for 'influencer' status among those with the power (for certainly they have it not) to actually make things happen. Likewise, this energetic group of states will have their distractions and produce enough material to feed the propaganda departments of the states on which they are dependent for some time; even as they feed on the discursive trough provided by academic and consultant elites pushing their own projects. That is both fair and predictable--one might even call it politics, cultural politics certainly. More importantly this document like many that have preceded it will continue what is now a tradition of using international instruments to export their own failures onto those states that have served for decades as a convenient excuse for their state failures or cupidities. The largest states will have had their theater, one quite useful for managing rewards and expectations among their dependencies and in their battles with their peer rivals; and with thanks to the academic and NGO communities that feed them what they need as the cultural weapons in a contest in which this effort is fodder. Indeed, this instrument has served them all well since 2014 advancing a decision made in at least two of the great global centers since at least 2013--the movement from a fundamental embrace of unity and convergence to division and disengagement grounded on global production based on quite distinct ideological foundations.
It is with this in mind, and without naming names or identifying documents, that I offer a brief set of observations of the discursive practices around this 3rd variation in the progeny of the Norms (see below) and what it suggests about the meaning being made by the discursive choices made in the context of supporting this effort. Lamentably, these include a broad anti-democratic streak that cannot resist the delights of the ad hominem as the strategic choices that are meant to convince or bully an embrace of this 3rd draft as the summun bonum of the regulatory imaginaries business and human rights, one which lamentably may not speak well to the intentions and consequences of the efforts. And that is a pity. Worse, it does little to strengthen arguments in favor of this object rather serving as a reflection of the gloriies of those who have worked tirelessly toward this (political) moment.
These brief observations follow. Full disclosure. I have been a strong critic of the Treaty drafts and its process. See here, here, here, and here. I have also supported a framework approach as better aligned with the spirit and progressive forward thrust of the UNGPs (see here). I have worried that the Treaty process was reactionary in spirit, vindictive in the sense of long festering anger at the abandonment of the Norms, unrealistic (though that was not itself a problem if the idea was to use the treaty process as a stage for leveraging access to audiences for the particular viewpoint it represented), and compromised by ideological agendas that colored analysis colored by strategic objectives (perfectly acceptable for political but hardly the stuff of academic analysis put forward as such). Nonetheless, I respect both the impulses that produced the Treaty movement and its substantive manifestations, representing a good faith effort to find a way to harden the obligation of states and other actors to more deeply embed expectations that economic activity, like political activity, will be respectful of human rights in their full scope in international law AND norms.
My observations are organized around eleven (11) discursive themes: 1. The discursive baselines of the Treaty Project and its consequences; 2. Discursive belittlement and cabining; 3. The discourse of the normative value of time and effort; 4. The discourse of dog whistles and name calling; 5. Essentialization and reductionism, from name calling to the reconstruction of the individual as merely the sum of aggregate characteristics of collectives; 6. The discursive ghouling of the United States and the ghosting of China; 7. The discourse of demonization; 8. Tone at the top; 9. The discourse of deck stacking; 10. The dangers of a discourse of the human individual as the center of all things; and 11. The longer term tragedy of the discursive tropes around the Treaty Project.
1. The discursive baselines of the Treaty Project and its consequences.
The last seven years of the work of the OEIGWG, and the tightly curated, clubby, and opaque (transparency in the process of treaty making appears not to have a democratic element even within liberal democratic structures) process, one with a public face and a much richer private face, has reworked what started out as a Zero draft now presented in mostly theatrically modified form, as a 3rd revised drat of a so-called legally binding instrument. In the process it appears that this effort has effectively sought to resurrect a ghoul whose specter has been haunting the great hallways of those mansions (quite varied) that house the institutions committed to the embedding of human rights and sustainability norms and expectations into the economic activities of humans and their organizations. The “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Draft Norms) presented in 2003 and largely abandoned in 2005 with the appointment of John Ruggie to head up a different approach to the construction of a normative foundation for the regulation of the human rights effects of economic activities within the plural legalities of globalized governance now appears in a new guide (my critique of the Norms HERE).
As I have suggested elsewhere (here), this is a project that is intended to displace rather than to further develop the UN Guiding Principles for Business and Human Rights, especially as international law itself has begun to develop along five simultaneously autonomous but interconnected systems (see here). By ignoring realities around them in favor of a "fiat lux" approach to the (re)creation of the world in their own image using the tools of a world order now largely historical in its significance, the Treaty project (unconsciously or not) exuberantly embraces not just a reactionary effort but also the discursive tropes of reaction. Time travel--as they would have us undertake, however, is still beyond human capacity, except perhaps through modeling and simulation--a form of governance that is indeed emerging and which is studiously avoided by the anachronisms of the current effort. It seeks to turn back the clock in multiple ways.
a. First it unrealistically returns back to the presumptions of legality and governance (grounded in the state and formal national law as an instrument of a mandatory conception of international law, one largely never fully embraced by the international community) that has been substantially abandoned as a viable theoretical conceptual system or as a practical system for managing global economic activity. States and the formal international system are part of larger ecologies of legality that contribute to but no longer have an effective monopoly of rights, remedy, or mitigation.
b. Second, it seeks to pretend that the substantial advances in conceptualizations about the role of human rights and its basis in both societal and legal systems since 2003 has ever occurred. Words in a treaty have tended to be a fabulously ineffective way of time travel--especially time travel that is meant to have mandatory effect. This is especially ironic in the sense that the Treaty project itself continues the trend of governmentalizing the private sector and transforming the public sector into, not a site for government, but as a space for compliance and accountability--a platform within which privatized users and producers may undertake and account for their obligations to individuals and their operation of managerial systems through which these obligations are governed.
c. Third, it ignores the emerging viability of autonomous legalities beyond traditional international and domestic law--the private law of public law, the public law of private law, data driven governance, and platform governance. That effectively confines the Treaty to a temporal universe that is quickly disappearing into history. The governance gaps that gave rise to the UNGP after 2005 have not disappeared; and certainly the theories around which the state system and its international institutionalization since 1945 have hardly changed. Like a medieval city it remains vibrant within its own borders. But it ignires now the growth of a lush ecology of human activity existing autonomously outside its walls. The Goverrnemntalized multinational operating its private law based systems around global production chains, the privatized government operating as a multinational enterprise well beyond its borders, the contests over the control of data and analytics necessary to develop and implement transnational systems of norms, ideals and the quantitative measures through which behavior control is increasingly subject, and the effective operationalization of platforms as a supplement and sometimes as a substitute for bureaucratic administrative institutions and the market itself now speak to a governance ecology that the Treaty barely acknowledges and will do little to disrupt.
d. Fourth, it continues to situate the project in a rich and now influential discourse of judgment, revenge, retribution, reclamation and reparation that compresses history into the present and that essentializes individuals as two dimensional representatives of aggregations of action and effect with respect to which an accounting is long overdue. Fair enough. But it also (1) detracts from the realization of the Treaty project's positive objectives, (2) distracts the conversation from forward moving reform to backwards looking accounting, and (3) produces core conceptual dissonance between human rights emphasis on individual autonomy and dignity and the Treaty discourse emphasis on collective rights and obligation and the historical compression of these collective conseqeunces. . Do not mistake my meaning here--the discursive and substantive battles around the past, and its reconstruction, are ultimately healthy (assuming one moves eventually from division to convergence) . The conversations are made more subtle and complex in a world in which clean hands (individually or collectively) are very very hard to find--except discursively--but that is the political project around which these frictions will produce enough heat ultimately to forge something better, or destroy the thrust of civilization and set humanity on a different course.
There is no blame in this. But here discourse veils rather than reveals its shaping of the narratives within which it is possible to engage. And that is the great and ironic pity of the current narrative context in which the possibility is engagement is constrained by normative and discursive barriers that point to only a singular outcome. The deck is, in this sense, discursively stacked. It is not for nothing then that some states and other actors (not otherwise excluded (but in the nicest ways) wonder about the point of engagement. And one ought to respect their singular commitment to a vision that is intolerant of difference, much less of nuance, in the construction of business and human rights frameworks for institutions engaged in economic activities. In their search for perfection they have naturally adopted the profound insights of the professional revolutionary, and the structures by which one understands what is to be done. . The pity is that in this single minded endeavor to operaitonalize a peculiar vision of perfection--oh so carefully orchestrated to appear to be broadly consultative, though in many respects it is not; the richness of the conversation about the construction, vindication, and processes of human rights will be lost.
2. Discursive belittlement and cabining.
There has been an effort to discredit the Framework Treaty approach as "merely" an academic effort. That is both hysterically ironic and lamentable--even as it is meant to serve as a distraction that avoids confronting the real possibilities of the Framework Treaty approach as an alternative. The irony, of course, comes from the very sources of legitimating support for the Treaty process and the terms of the draft, themselves driven in their drafting by the academic community. At worse then, the charge distracts by drawing the eye away from the construction of the 3rdf draft itself as an academic Utopia (not that Utopia is bad or wrong, but that is a normative and cultural rather than a political and operational project). It is lamentable as a sort of sophomoric effort to distract away from an adult conversation about all possible framework that ought to be made available for sovereign states to consider and to the extent necessary to spark democratic debate within their respective polities.
3. The discourse of the normative value of time and effort.
The proponents of the treaty process have, where all else failed, pointed to the length of time it has taken to arrive at this point in the drafting process. But that is also a distraction. One does not approve a treaty merely because lots of people have worked on it for many hours over many years. That may deserve an award for effort--and for good faith. It might even merit conversation about that effort and the time it took to get there. But it servers little else. Time does not speak to the openness and transparency of the process; it does not speak to the inclusions of individuals and diverse views. It speaks only to the work of those who might uncharitably be cast as hijacking the process and then presenting it as a sort of patched up product of democratic engagement discourse,. But that requires substantially more than what has been offered to date. If one wants an elite project one might prefer the honesty of Marxist Leninist vanguard theory to this. At least that honestly spotlights the hierarchical and limited nature of engagement in a representative capacity.
4. The discourse of dog whistles and name calling.
Western Soviet tactics, from the time of Wiemar Germany to the present, depend on the strategic use of name calling. And name calling requires the sort of reductionism and essentialism that is the very foundation of racism, ethnocentrism, xenophobia, and elitist manipulation that those advocating this approach would be horrified to be made conscious of in their choice of tactic. But there it is. For example, there has been a bit of talk about the Treaty representing in some fashion the expression of the so-called Global South against what is sometimes references (in an indulgence to the ad hominem) to the colonizing and altogether naughty peoples of the Global North. This is also horrifying and it ought to be beneath those who have devoted lifetimes to human dignity, to the elimination of the sort of categorical thinking that produces racism, xenophobia, gender discrimination and the like. But there it is. Let me break this down more specifically:a. The Global South is a nice euphemism but it is an illusion. It identifies a space and those very general points that aligns the region. But there is not much more there. The Global South is not a singularity--it is not a unified soviet. The Global South is made up of peoples, cultures, politics and the like which are as rich and varied, as contradictory and oppositional, as any that can be found elsewhere. Yop posit a Global South as a sort of monolith that has fallen in line with its leading forces (at least those with the clout to get themselves and their organizations to Geneva or gain admittance to the rarefied space of elite NGO interlinked network spaces).
b. The use of the Global North as a sort of whipping person suffers the same infirmities. Name calling is fun--but it has little place where one is engaged in the serious business of managing populations. To the extent that arguments are made that are grounded in reductionist smearing--colonizers, bullies, and an instinct for marginalization--are all distracting essentializations and distractions. That fact that one emerges from the Global South or the Global North ought not in the end to weigh much in the calculus of the value of effort. To the extent that such position gives way to privilege and leveraging voice--that is a subject worthy of discussion generally--but the Treaty is hardly the most efficacious way to reform or reparation. The treaty is not about reparation, it is or ought to be about securing an effective and realistic structure for the vindication of the human rights of those who are affected or involved in economic activities. The rest is mere agit-prop.
c. The obsession with counting. Several discursive approaches adopt a sort of quantitative measure to marginalization. The treaty must be the aggregation of the counting of "voices" from locations (temporal, geographic, and abstract) which those who have vested themselves with the authority to count then deem sufficient. But such is a process that is inherently corruptible and corrupting. One does not measure the value of the substantive terms of an international instrument by counting those aggregations of characteristics that are temporally deemed worthy of privileging. One ought to cultivate openness to all views without greater or lesser valuing as a function of those characteristics. One opens the door, one does not construct a turnstile. And one certainly does not produce an enormous conflict of interest dynamic by serving both as advocate and as the manager of the turnstile.
5. Essentialization and reductionism, from name calling to the reconstruction of the individual as merely the sum of aggregate characteristics of collectives.
When one moves from the generalized ad hominem of essentialized actors as factotums of class, history, and other characteristics, to a more personal attack grounded in these essentialized characteristics, one works hard to discredit oneself even as one believes they are discrediting the persons attacked. The oblique references to Denmark and its community is a barely thinly veiled ad hominem attack on the good faith efforts of some in our community to engage vigorously and with full fidelity to the great premises and values of the business and human rights community. One might correctly and vigorously object to the description of a scholar as a high status member of a culturally dominant elite group in a developing state, or as a member of a colonizing elite ruling over ethnically and racially distinct communities from whom their ancestors constructed the current state. One can go on and on. But that is the problem of reductionism and essentialization--it produces a blunt weapon rather than a gateway to discourse that produces reconciliation and convergence. Still, that seems to be the principal item on the discursive menu of (ironically enough) global elites. Yet there appears to be few qualms about reducing a scholar to terms like Global North research scholar or worse, one from Denmark. These sort of ad hominem attacks do little to raise the reputation of this community of those who presume to act in a representative capacity for those otherwise unable. They come perilously close to converting arguments in favor of the treaty made on this basis into farce or more pathetically burlesque in the sense of self mockery. It does more to discredit the enterprise of treaty building than the more academic and respectful efforts to engage in the substance of the debates.
6. The discursive ghouling of the United States and the ghosting of China.
It appears to have become quite fashionable to dismiss the United States as a legitimate international actor since the election of Mr. Trump in 2016. But this reductionist prejudice is both disrespectful of the many people who make up the government of the United States, and suggests a hostility to that nation that denigrates rather than elevates the discussion. Most distressful are the efforts to mock and dismiss the renewed participation of the United State sin the process. One may not like what the government of the United States has to say, but one ought to listen and respond to its substance rather than to engage in a sort of elitist lecturing and guilt mongering with respect a history, analogues of which are easy enough to unearth respecting every state on this planet. Yes, it is a big, powerful state; and yes it has been the conceptual driver (at least through 2016) of much that passed for convergence-consensus based international norms and that has made the Treaty process itself (and their participation in it) possible . Gratitude, however, has always been a very heavy burden few bear with good grace.
A similar and sometimes quite disrespectful ghosting of China appears to have attended these proceedings. It is sometimes amazing to watch the way discourse reveals aspiration--here that if one ignores a vigorous and quite healthy emergence of a robust Chinese Marxist-Leninist theory of politics, society, and law (including international law) and its consequences for the project of human rights and sustainability it will go away. Alternatively, the discourse appears to suggest that Chinese political theory is a proper object of socialization and capacity building so that it might eventually be retrained to conform to exist within the boundaries of (legitimate) discourse and its underlying norms set by those who are managing the Treaty process. That is a specific application of a generalizable malaise within the international community. It is not unreasonable especially int he sense that Chinese political theory ay be incompatible with the normative foundations of a system that has permitted the non-governmental non-profit sector a long period of encourage sustained growth in authority and engagement. But it also virtually guarantees that one of the largest economies int he world, one with connections to virtually every other state on the globe, will not become a key participant in whatever system is memorialized in the treaty document. Even if the Chinese and the U.S. sign, it is unlikely that their application of the provisions will suit the tastes of those who have crafted this instrument and in the process they will use the state system at the core of the discourse of the project to undo it or turn it into an instrument that suits their respective interests. That, too, is fair.
7. The discourse of demonization.
It is also fair to demonize opposing frameworks for a treaty. To that extent it is fair for Treaty draft proponents to describe the framework treaty alternative in the worst possible terms. That is fair; and certainly the Treaty Draft itself is heavily laden with similar possibilities. But one should attempt to be honest in the endeavor--that is that one is seeking to legitimate and demonize an opposing or incompatible approach. It is also fair to note the political maneuverings around competing proposals. That has been the object of a bit of group disciplining discurse (most appropriately to develop counter-Framework Treaty talking points). But where the discourse of these points begin to rely on unstated prejudice and hate mongering, all grounded in reductionism and essentialism, and the fanning of a revenge-retribution based politics, then one engages in a contest very different from that tied to the good faith consideration of the substantive terms of the Treaty Draft. That is fine--and ought to be welcome. But insinuated in this way it detracts both from the process and the sincerity of the consideration of the Treaty as treaty. The Treaty is not a simulacra of the pent up resentments of peoples; it is not a substitute for the resolution of those imbalances and perceived inequalities. Nor ought it to be. It can, however, serve as a means of lessening those effects. The current discursive positions of actors, however, appear to be meant to have the opposite effect for purely strategic reasons.
8. Tone at the top.
The UNGPs is to some extent famous for its insistence that tone at the top matters. And in their exuberance, the managers of the Treaty process have taken this to heart. But its discursive consequences may not be quite what ought to pass muster. One of the great markers of privilege is the power to set the tone and constraints of discourse. Yet that discursive power, once so vigorously challenged by people from traditionally marginalized states and groups now appear to be the modus operandi of those in control of the Treaty process itself. It would be a very sad state of affairs if the reward for opening up and inclusiveness is not a new more welcoming world order but one that merely reverses the polarities of the exercise of power. The Chinese, Russians, Indians, and U.S. ought to have their say as states, like the Argentines, Mexicans, Laotians, Bahamians, and Nigerians; and their peoples, organized in civil society spaces, ought to be accorded a like privilege. Viewpoint neutrality in debate is essential for the preservation of the legitimacy of the process. But one is in grave danger already of losing that. Debate and disagreement is not derailment. And if the object is to object to derailment on the merits then it becomes clear that debate and engagement was a sham from the start. Perhaps that is what all this chatter is in danger of revealing as a discursive trope, I suspect that is or ought to be avoided by people of good will on all sides of the Treaty debate.
9. The discourse of deck stacking.
Curating the Treaty process by ensuring that friends of the chair will be a strong voice in "guiding" the debate and preventing interference with the attainment of a pre-judged objective is hardly the high road to legitimacy. That is a pity. While it may be business as usual among certain classes of international law and norm participants in the rarefied atmosphere of Geneva and elsewhere, its anti-democratic character is likely to severely undermine the legitimacy of whatever is produced. That process is the sort of stuff that makes for great movies; it makes for terrible legitimacy enhancing process. In the other hand, if these actors insist that this is what we must all embrace (for our own good is usually the way it is framed) then they ought to have the courage of their Leninist impulses and act decisively as the vanguard that purport to be. But speaking like a revolutionary vanguard and failing to act decisively reduces them to Menshevism and eventually irrelevance and a vanguard force. They must choice; they have nit; dinner party or elite Leninism is rarely a successful stratagem.
10. The dangers of a discourse of the human individual as the center of all things.
Lastly, and not because it is least important, but perhaps because the opposite is true--the Treaty remains self absorbed with the human. By centering the human in the context of rights that reflect on their greater glory, it will continue to contribute to the deterioration of the environment within which human rights are possible. De-centering the human in rights, and re-centering the environment in which we all are a part, may well be central to a progressive understanding of the scope and application of rights. But the Treaty process remains stuck somewhere in the 1970s. That is admirable in the sense that humanity may finally get the 1970s right. Yet it is also lamentable because the world into which these sensibilities are projected is no longer capable of sustaining such narrow minded folly. Discursively obsolete, the Treaty and its discourse may be worth passing, like a piece of a meal that produces an ill effect on the body of humanity and that must in this sense must be passed so that we all can then move forward. Indeed, the time has long past when it is expected that sustainability issues are given lip service and understood as important only by reference to their consequences for the privileged project of humanity. The reverse is now a better way of understanding the way human rights are situated within the larger issues of environment and sustainability, including climate change.
11. The longer term tragedy of the discursive tropes around the Treaty Project.
In that context the very basis of this Treaty project so decisively reactionary, so intent on fixing the defeats of the now coolly retro 1970s and its New International Economic Order-Soviet (not Chinese) Internationalist aspirations, long irrelevant, against an equally ghostly opponent of pre-globalist "capitalism" makes for a great show but advances the projects of human rights and sustainability not a whit. And that, unfortunately is the greatest tragedy, not so much of the Treaty project itself (which will in the end do neither much good nor much harm) but rather the tragedy of its discursive tropes--the premises and cultural messages that is means to naturalize within the discourse of rights centered on the individual and the human in a world that no longer aligns with this discourse or that vision.Make no mistake; the Treaty project has been, and to come extent continues to be, a singularly important project in advancing substantial cultural expectations around the way that human economic activity is situated within the ecologies of governance of of planetary global systems. That, in itself, requires a revaluation of the values around which human society is organized, and a re-articulation of the way on which human activity is valued and accounted. That is indeed a worthy project. It is a project that fits nicely within the UNGP framework and provides an added traditionalist dimension to the issues and formulations of institutional changes, as well as to the methodologies of identification and valuation of human activity. Yet that project should not be confused with the product advanced as its memorialization, It is not. Rather, its discourse and its engagement are likely the most valuable contributions of these seven years of sensitive and good faith efforts to rethink the world around us as a function of values and expectations only now emerging clearly within the organization of human collectives embedded in a planetary system whose functioning must be enhanced. Yet that discourse, itself, ought to be as accountable and any other activity, and measured as against not just its own values but as against the broader values and principles that serve as a foundation for human rights.
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