It is with great delight that I pass along the announcement of an exciting new Online Symposium. It is hosted by Völkerrechtsblog and brilliantly co-organized by Justine Batura (Völkerrechtsblog), Anna Sophia Tiedeke (Völkerrechtsblog) and Michael Riegner (University of Erfurt; co-founder of the Völkerrechtsblog), who will feature as guest editor of the Symposium. The Symposium Summary nicely captures the spirit of the event:
With a view to regulating business in the field of human rights, an Open-Ended Intergovernmental Working Group (OEIGWG) has been negotiating an international binding treaty in business and human rights (BHR) since 2014. Confounding the dichotomy of hard and soft law approaches to BHR, the Biden Administration recently expressed openness to a legally binding framework agreement that would build on the UNGPs. Framework agreements are a type of treaty, that establish key objectives and a system of governance but leave details to be determined in the future by an agreed-on mechanism. Perceived by some as a distraction from existing efforts to create a binding treaty in the field, others consider the treaty design choice for a framework agreement as offering a promising and realistic route. In any event, the joining of the US delegation to the OEIGWG has (re-)fuelled long smouldering discussions about the prospects of success of the OEIGWG endeavour and the need to explore alternative avenues, such as opting for the treaty design of a framework agreement. With this symposium, we take a deep dive into exploring a framework convention as an alternative regulatory proposal and examine potentials and challenges from different angles. (Völkerrechtsblog, Symposium, Framing Human Rights? Introductory Note )
Throughout the week starting 20 June 2022, the co-editors will post written contributions on the homepage of the Symposium in the following order:
--Monday: Introduction by co-editors Justine Batura (Twitter: @JustineBatura), Anna Sophia Tiedeke & Michael Riegner (Twitter: @riegnerm)
--Monday, 1 pm: Giulia Botta
--Tuesday, 8 am: Jonathan Klaaren (Twitter: @JonathanKlaaren)
--Tuesday, 1 pm: Lucas Roorda (Twitter: @LRoordaLaw)
--Wednesday, 8 am: Claire Methven O‘Brien (Twitter: @Claire_OB1)
--Wednesday, 1 pm: Tara Van Ho (Twitter: @TaraVanHo)
--Thursday, 8 am: Nils Grohmann
--Thursday, 1 pm: Flávia do Amaral Vieira (Twitter: @eiflavia)
--Friday, 8 am: Larry Catá Backer (Twitter: @BackerLarry)
--Friday, 1 pm: Concluding Interview with Claire Methven O'Brien (Twitter: @Claire_OB1) & Surya Deva (Twitter: @ProfSuryaDeva)
was delighted to have been invited to participate. I will be posting
the Symposium contributions here and will also contribute some brief
reflections and engagement with each of the excellent and thought
Other Essays and Reflections may be accessed here:
Part I Introduction
Part 2 Giulia Botta
Part 3 Jonathan Klaaren
Part 4 Lucas Roorda
Part 5 Claire Methven O'Brien
Part 6 Tara van Ho
Part 7 Nils Grohmann
Part 8 Flávia do Amaral Vieira
Part 9 Larry Catá Backer
Oops! They Did It Again
The USA’s Counter-Diplomacy in Promoting the Framework Convention
When they finally joined negotiations on the proposed business and human rights (BHR) treaty, the USA immediately called for ‘exploring alternative[s]’ to the current draft, including a potential framework convention. In this post, I argue that the USA is engaged in counter-diplomacy and call on States to continue negotiating based on the 2021, Third Revised Draft of the Open-Ended Intergovernmental Working Group (OEIGWG).
Admittedly, an accusation of counter-diplomacy is a significant one. It suggests a State is working to undermine efforts to protect human rights. Traditional diplomacy uses persuasion and negotiation to secure a State’s national interests. Human rights diplomacy uses the same methods to convince States to advance human rights or dissuade them from acting contrary to human rights. Human rights counter-diplomacy, on the other hand, is aimed at undermining human rights protections and is employed ‘for the simple purpose of maintaining power and privilege or out of an unwillingness to confront prejudice and bigotry’ (O’Flaherty et al. 2011, p.30). While I do not intend to accuse the USA of bad faith per se, I believe the USA’s conduct will undermine the development of appropriate human rights standards. In the following, I explain the primary issues a BHR treaty needs to address. I then consider the progress that has been made towards meeting these needs within the current draft treaty before indicating how a framework convention would undermine this progress. Finally, I consider what might be motivating the USA to act in a way that undermines this progress.
The Purpose of a BHR Treaty
In order to be effective, a BHR treaty needs to respond to international and domestic legal standards that effectively insulate many corporate actors from human rights oversight or accountability. Namely, the (purported) lack of international legal obligations; their (exclusively) profit-driven purpose; separated corporate personalities within complex corporate structures and supply chains; and significant protections under investment law. Currently, businesses are assumed to not have international legal personality (an assumption I have previously questioned) so their obligations are defined by domestic law. In Anglo-American systems, this requires businesses to prioritise profits for their shareholders or members over other competing interests. Even when a business originates in a legal system that does not require profit as a primary goal, research shows businesses frequently adopt the Anglo-American approach once they move into the international trading system. This can undercut corporate commitments to human rights, as the latter (if done properly and seriously) can be costly. The cost of human rights due diligence (HRDD) can incentivize parent companies or international brands to transfer risky operations and HRDD responsibilities to others in their corporate group or supply chain. In doing so, businesses can also limit their human rights liability. Currently (with notable exceptions), parent companies and international brands define their own responsibility for human rights and can transfer the risk and responsibility for human rights to a subsidiary or a supplier. Meanwhile, States’ regulatory and adjudicative jurisdiction is limited to the businesses incorporated in or operating in their territory or jurisdiction. If a parent company adopts harmful policies or operations but transfers the riskiest aspects of those operations to a foreign subsidiary, the parent’s home state may not have jurisdiction over the subsidiary and the subsidiary’s home state(s) may not have jurisdiction over the parent. As a result, victims will not have a natural venue for pursuing accountability. Finally, international investment law allows transnational corporations the opportunity to challenge regulatory changes adopted in the interest of human rights and environmental protection if they would negatively affect the profits of their subsidiary companies.
These legal standards are interrelated, and comprehensive reform is needed to effectively protect human rights. Sadly, States have worried that individual action on these issues will place them at a competitive disadvantage economically (see, Swiss NAP 2020-2023, p. 8). As such, States called early in the negotiations for ‘a mandatory regulatory framework’ (UN HRC/37/67, para 20) that would place them on equal footing.
To address these issues, a strong treaty will have to: affirm or define the rights individuals have against businesses,
require States to adopt domestic HRDD laws that require businesses to assess not only their direct conduct but that of their corporate groups or supply chains
clarify which States will have jurisdiction over remedial claims,
establish standards for mutual legal assistance, and
address the relationship between these obligations and a State’s investment law obligations.
Accomplishing these five goals would not create new direct, international obligations on businesses or change their general, profit-driven purpose. But it would establish a minimum regulatory standard, ensuring fair competition between states and encouraging businesses to pursue profit in a way that respects human rights.
The Pursuit of a Comprehensive Treaty
Against this backdrop, the current Third Revised Draft negotiated by the OEIGWG includes several important features: A statement of victims’ rights and States’ obligations to protect victims.
A commitment to make HRDD mandatory and require businesses to communicate their findings including through public and periodic non-financial disclosures (articles 6.3-6.4).
An acknowledgement of the differentiated impacts this will have on transnational corporations versus micro-, small- or medium-sized enterprises so that appropriate measures can be adopted to support business compliance (article 6.6).
Commitments to administrative, criminal, and civil sanctions, including penalties for breaching HRDD standards (articles 6.7, 8).
Clarity over which States have adjudicative jurisdiction over remedial claims (article 9), and standards for statutes of limitations (article 10).
Obligations of international cooperation (article 13) and mutual legal assistance in transnational cases (article 12).
A commitment to ensuring international investment agreements comply with the BHR treaty (article 14.5).
This would provide a consistent (albeit not uniform) regulatory approach between States and would impact the global operations and relationships of businesses that are incorporated in, or operating within, a State party. This suggests the treaty will have extraterritorial impacts.
The current draft has taken seven years of thoughtful negotiation. A comprehensive approach was chosen even though States were presented with a variety of potential treaty forms at the second session of the OEIGWG. This included a discussion of a framework convention (para 98), and other framework conventions were frequently referenced during the development of the current draft (paras 21, 56, 65, 78 and para 82). Early in the negotiations, Doug Cassell and Anita Ramasastry helpfully and extensively detailed options for the treaty’s form, building on existing treaties. They noted that framework conventions, by their nature, are neither comprehensive nor unified. They typically include general or high-level commitment with more specific obligations reserved for optional or additional protocols. They can secure commitments quickly but are unlikely to include significant substantive commitments. ‘The main disadvantage of such a ‘framework’ approach’ Cassell and Ramasastry recognise, ‘is that it would not initially be likely to achieve what treaty proponents principally seek: legally enforceable corporate accountability and access of victims to effective remedies’ (p.25).
Claire Methven O’Brien has, rather brilliantly, redlined the current OEIGWG draft to demonstrate how it could be adapted to a Framework Convention. O’Brien’s version offers important contributions, such as consolidating bulky language on the meaning of due diligence. But, it otherwise bears out Cassell and Ramasastry’s warnings. For example, O’Brien’s draft fully eliminates the OEIGWG draft’s commitments on securing access to remedies for victims and ensuring investment agreements comply with the BHR treaty. Similarly, where the OEIGWG draft requires States to legislate due diligence, O’Brien’s does not. Instead, states are only expected to ‘recognise’ that businesses ‘should perform’ due diligence and will ‘undertake to provide’ penalties that encourage that (redlined article 6). The binding commitments of the OEIGWG draft are gone.
An additional drawback to a framework convention is that optional or differentiated commitments (when any such commitments are eventually introduced) would allow States to continue to use economic regulation of human rights competitively, seeking to secure advantages in investments instead of comprehensive reform to a complicated system.
In contrast, Cassell and Ramasastry recognise that the UN Convention against Corruption, a conventional treaty, offers the benefits of bringing together prevention, sanctions and international cooperation to combat corruption (Cassell and Ramasastry, 2016, p.27). The drawbacks primarily stem from the substance rather than the treaty’s form (it does not provide for civil remedies, and it lacks an international legal enforcement mechanism). The larger problem with a conventional treaty is that it will require greater commitments by States and may not be ratified as quickly, if at all. Yet, a conventional treaty can employ, and enjoy the benefit of, peer pressure to facilitate ratification and enforcement.
The Current Draft’s Impact on Non-Parties
If the purpose of a comprehensive treaty is to ensure regulatory consistency amongst States Parties, the consequence for non-party States is that they do not control their economic and regulatory destiny as firmly as they would without the treaty. Under the treaty, a business will need to account for its impacts and relationships even if those occur on the territory of non-party States. Those non-parties would lose any competitive economic advantage from looser regulations. Alternatively, companies incorporated in non-party States can enjoy the benefits of a State’s looser regulations only if they forfeit operations and markets in States Parties. Put differently, strong, and consistent implementation of the Third Revised Draft is likely to crowd out other States’ regulatory ‘looseness.’ This can encourage non-party States to join the treaty to participate in further developments and implementation efforts.
A Counter-Diplomatic Proposal
The sketched situation poses a problem for the USA. To its credit, the USA tends to ratify only human rights treaties it is already complying with, meaning they generally garner limited partisan, ideological difference. A BHR treaty, which would reform the USA’s approach to economic governance and corporate purpose, does not meet that condition for ratification. The current draft would require the USA to pursue regulatory reform at the federal level and within each of its 50 federal states. The current political environment makes ratification of this kind of treaty even more unlikely than usual. Entrenched ideological differences have led to significant disputes about corporate regulation generally, and for workers’ rights specifically, making it unlikely a BHR treaty could receive the Constitutionally required support of 67 Senators anytime soon. In other words: the USA simply cannot and will not ratify a BHR treaty in any form anytime soon. Yet, under the current draft, the USA would be indirectly subjected to the treaty’s provisions despite its resistance to, and internal ideological disputes over, the treaty’s approach.
In light of this, the USA essentially has three options: First, it can use traditional diplomacy after the adoption of the treaty to seek exemptions for its own businesses; second, it can use human rights counter-diplomacy after the adoption of the treaty to stop other States from ratifying and complying with the treaty; or lastly, it can use counter-diplomacy within the context of treaty negotiations to limit the scope and impact of the treaty. The latter two options can incur a significant economic cost: traditionally, the USA has used aid and trade packages to pressure States into complying with its interests. Instead, historically the USA has joined negotiations to ensure its interests remain represented within the text of a treaty it cannot and will not ratify but could be impacted by. An example of this is the USA’s involvement in negotiating the Rome Statute to the International Criminal Court.
Similar to the BHR treaty, the likelihood that the USA would be unable to ratify the treaty raised concerns about its impact on American personnel. The Court has jurisdiction over crimes committed by nationals of non-State Parties (e.g., Americans) on the territory of a State Party. To protect its own interests, the USA negotiated the adoption of article 98. That article prevents the Court from proceeding with a request for surrender from a State Party (e.g., Afghanistan, Colombia, or Nigeria) if doing so would require the State Party to breach an international commitment (like this, this, or this) to not surrender personnel sent from a non-State Party (e.g., the USA) absent that latter state’s consent. This contrasts with the normal commitment of States Parties to ‘cooperate fully’ with the Court’s investigations (article 86). Following the adoption of the Rome Statute, the USA negotiated numerous ‘Article 98 agreements,’ or what have become known as ‘impunity agreements.’ This effectively hamstrings the Court’s ability to investigate crimes committed by the American military in places like Afghanistan and undermines States Parties’ commitment to international justice.
In other words, knowing it would not ratify the treaty, the USA negotiated a treaty provision that effectively undermines the purpose of the treaty and allows the USA to avoid any impact from the treaty.
While others refer to counter-diplomacy as ‘bad faith contestation,’ I do not intend to accuse the USA of bad faith per se. It made numerous positive contributions to the negotiation of the Rome Statute (Schabas, 2004, p.709), but ultimately it is representing only its own national interests. With the BHR treaty negotiation, those interests place it at odds with the purpose of the BHR treaty and the communal development of necessary human rights standards. It is noteworthy, however, that the USA has not proposed an alternative treaty text. Instead, it has proposed a vague idea that would restart negotiations from the beginning. That places at odds a clear and comprehensively negotiated treaty against a hypothetical ideal approach that has no content and therefore cannot be fully assessed or critiqued. The mythical, perfected treaty is being used as an enemy of a good (imperfect) negotiation.
If the USA is making this proposal in good faith—a proposition I would be delighted by—it should produce a draft framework convention of equivalent strength and scope to the current Third Revised Draft so that a real discussion about the benefits and drawbacks of the (then) two proposed drafts can be debated. Without that, the only impact of the USA’s current call is to delay progress and risk watered down commitments. This is not in the international community’s interest.
There is little reason to tempt the USA to the negotiating table for a treaty it will not ratify no matter what design is proposed. There is much to critique on the internal contents of the Third Revised Draft but rather than pursuing a new and currently undeveloped framework convention, States should continue to negotiate a comprehensive treaty that, even if implemented imperfectly, aims to address the serious problems that have hampered the realisation of human rights to date. The Third Revised Draft provides that opportunity and States need to remain committed to it.
Tara Van Ho, Oops! They Did It Again: The USA’s Counter-Diplomacy in Promoting the Framework Convention, Völkerrechtsblog, 22.06.2022, doi: 10.17176/20220622-153025-0.Tara Van Ho is co-Director of the Essex Business and Human Rights Project, co-President of the Global Business and Human Rights Scholars Association, and a member of the IEL Collective Steering Group.
Reflections on the Völkerrechtsblog Symposium Essay, Tara Van Ho, Oops! They Did It Again: The USA’s Counter-Diplomacy in Promoting the Framework Convention,
Larry Catá Backer
1. The essay provides a brilliant and full throated defense of the BHR Treaty, the BHR Treaty process, and the need for strategic defenses against any effort to derail the work undertaken by the BHR Treaty vanguard (a coalition of loose collectives of diplomats, civil society organs, academics, and others) since 2011. It is a defense that provides much needed clarity about the premises, principles, and pragmatic choices that define what is going to be presented to the rest of us as a truly transformative instrument. Transformation here understood as a rejection of and replacement of key elements of liberal democratic jurisprudence in a number of important fields of law--constitutional, corporate, procedural, international--and politics, especially with respect to ancient concepts, long embraced by Marxist-Leninist and liberal democratic systems, respecting sovereignty, and the centering of democratic organs within states.
2. The core objective is sound, and with respect to which there is substantial consensus--the objective of ensuring that states advance human rights across the range of their authority and actions. The specific application in this instance is with respect to mandatory supra national measures respecting that objective in the context of economic activity. That application and the core objectives of the BHR Treaty project itself as considered in the essay, might be best unpacked in eight parts. FIRST, it rejects the contemporary system of international law, and all national law, to the extent that it may, in the language of the essay, "effectively insulate many corporate actors from human rights oversight or accountability. Namely, the (purported) lack of international legal obligations; their (exclusively) profit-driven purpose; separated corporate personalities within complex corporate structures and supply chains; and significant protections under investment law." In the process, the BHR Treaty process embrace a number of consequential premises that drive the profit--one of them is the suspicion of private profit as a driver of economic activity (the contemporary prejudice against a convenient straw person materialized as "capitalism" lies just beneath the surface). Another is the notion of collective personality beyond the state, and with it the concept of asset partitioning (for a discussion here). And yet another, one which might runs counter to the second, is the lack of recognition of the legal personality of collective organs beyond the state. Yet, as the essay suggests, there may be no contradiction--when combined this set of interlocking foundational premises point to the embrace of a principle of public collectives whose operations are meant to serve the state; just as the state is meant to serve its masses. Each of these is meant to be understood as a function of human rights (rather, then, for example--development, personal autonomy, or limited government). In effect, the core premise is founded on the fundamental illegitimacy of private economic collectives, their core function as an instrument of public policy and public purpose, and, as instrumentalities of public purpose (as an indirect organ of states) they ought to be recognized as a subject of international law. This is fair--it combines elements of classical European Marxist-Leninism with democratic theory, and an Enlightenment sensibility that suggests both the imperative of perfection and the role of leading forces in its shepherding. At the same time it also suggests the extent to which this core set of objectives might be viewed as a critical threat to the organization of public and private power developed over the last several centuries and currently embedded in the constitutional traditions of liberal democratic (and to a different extent) Marxist-Leninist states.
3. The SECOND is to reject the contemporary principles of mass economic organization in favor of a legalization of contemporary understandings of the economic constitution of production. That is also fair. And it may be necessary. But it is hardly to be undertaken indirectly through the mechanism of embedding human rights in economic transactions. At the same there is a point here worth thinking through (though not in the BHR Treaty context). It is certainly time to reconsider the field of transnational legal ordering for economic production. But that requires something the BHR Treaty vanguard has refused to confront--the insight that for that purposes it may be necessary to refocus law from entities that serve the process of production to the process of production itself ¡within which entities serve as modalities of facilitation. The BHR Treaty movement speaks about this indirectly even as they cling to the concept that the law of human rights must focus on entities as fiercely as their most traditionalist opponents. Thus, it is futile to worry about veil piercing and agency concepts, or even about the relationship of economic collectives to states, where the fundamental issue is not the entities themselves but the conduct of the process of production (at least form a human rights and sustainability point of view). The BHR Treaty vanguard, then falls into a reactionary trap--jurisprudentially at least; one from out of which they cannot possibly escape. That is a great pity--having embarked on a program of radical transformation, they pull back at a critical moment in its development.
4. The THIRD touches on the issue of agency. On the one hand the BHR Treaty strips individuals of agency--and perhaps of humanity. They are reduced to an essentialized status, the protection of which is delegated to superior forces--the state, well meaning non governmental collectives, and the like. I have been critical of this choice (one embraced both by traditionalist and progressive elites) since the start of this process (e.g. here). On the other the BHR Treaty process would vest economic entities with an expanded agency (the quibble revolves around the modalities of responsibility), through the techniques of mandatory human rights due diligence. This follows, of course, from the application of the core principle that rejects the primacy of private purpose of economic collectives and their subsequent governmentalization. Entities are accorded enhanced agency to serve as a recipient of delegated public administrative responsibility. Having rejected profit as a motivation of private economic conduct, it is inevitable that public purpose would, eventually, require a transformation of economic entities from the sensibility of profit to those of administration. Both are also fair. Yet again, for states whose constitutional traditions are grounded in a robust defense of markets, of private choice, and of the privileging of human autonomy, this trajectory of legalization would pose a challenge that might likely be resisted--strenuously.
5. The FOURTH touches on the applied objectives of the BHR Treaty grounded in its transformative principles: (1) vest individuals with rights which can be asserted against businesses (internationally sourced human rights torts); (2) require the domestication of mandatory human rights due diligence for business (but not for states with respect to their own operations); (3) clarify (or better, impose a new) regime of jurisdiction, choice of law and forum and remedy for human rights torts; (4) develop standards for mutual assistance among states; and (5) seek to align the transformed regime of human rights torts in economic activity with public investment law obligations (but not necessarily those of international financial institutions such as the Asia Investment and Infrastructure Bank). The principal object, again, is a frontal assault on private profit driven economic activity. The indirect challenge is to globalization grounded in or driven by markets--effectively an effort to undo the contemporary global order and to substitute for it, through the lens of human rights, an ordering that might be meant to capture the spirit of the 1970s but now oriented through human rights rather than development (see, e.g., here, and here). Fair enough. But again, this sort of reworking can neither be accomplished overnight, nor might it be undertaken without substantial conflict and resistance--not just from traditional liberal democratic orders, but from Marxist Leninist orders as well.
6. The FIFTH touches on the objectives of the BHR Treaty. There are at least two significant objectives that one might distill from this excellent essay. The first of these touches on the core critical objective of producing a perfect or perfectible TEXT. The TEXT itself is the object--the way the text of any HOLY WRIT is an object in itself. Providing an authoritative text is the initial step toward collective meaning making around which mass organization, mass mobilization, and the project of cultural transformation may be developed. The Universal Declaration of Human Rights (1947) served the same ends. It is in this sense that the BHR Treaty process must retain its character as a vanguard project. The vanguard may seek input from mass or collective representative organizations, but it retains its vanguard leadership role of moving from mass sentiment to the expression of perfection in TEXT. This is elementary Leninist theory--but also pre-Leninist in its substantially Enlightenment sensibilities. It is as much a reflect of the world view of Rousseau or Diderot and the Encyclopedists, as it reflects a modernized human rights oriented Leninism. The second of these is a longer term project of socio-political transformation under the banner of the BHR Treaty draft TEXT. That starts with the necessity of exclusion and de-legitimization of points of view that get in the way of perfection. Thus, to be able to get this transformative reordering "right" in the sense that it distills the essence of this new vision, might be worth the effort both to exclude opposition, and to resist dialogue with those who find some or all of the project objectionable. If that is the case, then as I suggested years ago, the most important objective of the BHR Treaty project is the production of the perfect TEXT as both a manifesto of ideological purity and a roadmap for legalization framed by a transformative world view of economic production ('Principled Pragmatism in the Elaboration of a Comprehensive Treaty on Business and Human Rights' (Deva & Bilchitz (eds) 2017, 105, 129here). Whether or not it survives to adoption becomes a secondary issue in the short term, and the first step of a longer term project of global transformation through law.
7. The SIXTH touches on a most potent consequence of BHR Treaty Leninism--the politics of exclusion and the leadership role of friends of the chair in the management of the mass democracy around which the textual perfection is attempted. Let us assume that the essay's principal insights are absolutely correct. First, that the United States, having spent years off in some diplomatic isolation corner annoyed about the BHR Treaty process, has now decided not just to engage with it but to do so for the purpose of sabotaging the effort. And second, that those who serve as the vanguard of the BHR Treaty process, especially its friends of the chairs and fellow travelers, already well invested in a specific process producing a specific sort of international instrument, ought to ignore the intervention the way they ignored the initial American tantrum and bring the treaty drafting process to a successful close. I agree with both. At the same time, it is possible to suggest that both are legitimate expressions of deep commitments to a political position that eventually will have to collide. And that is the problem--in areas of deep ideological division, it is easy to transform disagreement into something more insidious. It is certainly threatening to an ideology advanced by a faction being challenged. But is it inevitably "aimed at undermining human rights protections" for the mere purpose of lust for power politics that can be situated on the wrong side of current orthodoxies of social justice. That is a great pity--but also a sign. It is a sign that in this context, like other areas of discourse, and even within communities sharing similar baseline objectives, the ideological divide that separates the proponents of the current version of the BHR Treaty from others in the human rights community, may now make any sort of solidarity enhancing communication between groups very difficult. Lamentable, but not surprising. The greater lament, though, follows when these divides are then attached to states and state practice--and made an instrument of politics and a litmus test adherence to non negotiable ideological positions. And yet, that too is inevitable in this great age of detachment.
8. And the SEVENTH touches on political consequences of BHR Treaty Leninism. Let us assume that the United States is engaged in counter diplomacy. And let us further assume that this engagement is undertaken in bad faith. It does not follow that either the counter diplomacy or the bad faith (sabotage in the service of US interests and the principles embedded in its domestic and constitutional legal orders)--however contestable, however despised by those wholly committed to another ideological position, however adverse to the interests of those who believe themselves the true leading vanguard of social forces in the world, human rights community--transforms either opposition or its tactics into the essence of depravity or illegitimacy. In the case of the United States, from the time of the Obama Administration, the opposition to the BHR Treaty has been principled (though not by reference to principles embraced by those opposing the US view and advancing the current BHR Treaty orthodoxy). That opposition is grounded in traditional notions of sovereign authority, in a suspicion of the value of extraterritoriality (though the US has been no slouch in projecting its legal regimes outward when it suits them), and in disagreement about the substantive reach of Treaty provisions. The United States (along with the EU) had opposed the Norms project; it is no surprise that it would oppose the BHR Treaty on similar grounds. And just as the US (and EU) successfully blocked sabotaged the Norms project and backed the project that eventually produced the UNGP (under the leadership of John Ruggie and with the initial support of Kofi Annan).
9. As the essay suggests, there is something critically important in the BHR Treaty project that is worth preserving. It is worth preserving against politics; it is worth preserving against the Americans; and it is critically important as a foundational text of a new governance ordering. To that end, for those who have embraced both the principals of the BHR Treaty along with the longer term project of its use to reshape the world, the politics of treaty negotiation is a danger, the articulation of counter ideologies a critical danger to the project. The need to preserve the Draft Treaty in pristine form outweighs virtually all else. The essay, then, provides a most powerful argument in favor of that cause. In the end, that serves as a very powerful argument in favor of the current BHR Treaty process and against both a framework approach, and interference by those state and non state actors who do not share the vision of the BHR Treaty vanguard. The memorialization of transformative ideology within the text of a treaty instrument undertaken within the framework of legitimating international institutional mechanisms would, whatever the outcome, serve as a great victory, another step in the progress of the ambitions of this vanguard. And it is one that deserves careful consideration especially as a roadmap for those championing the constitution of a counter vision.