Part 7 Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Nils-Hendrik Grohmann, 'How to Avoid Politicised Monitoring?: Treaty-Design Suggestions for a Business and Human Rights Framework Convention'

 

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)

 I 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 provoking contributions.

For this Part 7 we consider the wonderful essay: Nils-Hendrik Grohmann, How to Avoid Politicised Monitoring?: Treaty-Design Suggestions for a Business and Human Rights Framework Convention , Völkerrechtsblog, 23.06.2022, doi: 10.17176/20220623-153108-0; which follows along with my brief reflections. 

 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

Part 10 Interview: Surya Deva and Claire Methven O'Brien

How to Avoid Politicised Monitoring?
Treaty-Design Suggestions for a Business and Human Rights Framework Convention
23.06.2022


It is one thing to draft international laws that protect individuals, but quite another to ensure their implementation and compliance by State parties. Taking into consideration existing framework conventions, particularly the European Framework Convention for the Protection of National Minorities (FCNM), this post argues that when choosing a framework-style agreement to regulate the area of business and human rights (BHR) procedural provisions must be included to avoid the risk of politicised monitoring. Inspiration can be drawn both from the FCNM and the procedural setup of existing UN human rights treaties and the current Third Revised Draft suggested by the Open-Ended Intergovernmental Working Group (OEIGWG). Existing procedural provisions and powers enjoyed by their oversight bodies could also prove useful under a framework convention in BHR.

Monitoring of State Reports under a BHR Treaty

Regardless of a future BHR instrument’s character, one can assume that State reporting will have a significant role. First, the current Third OEIGWG Draft provides, as well as the Zero and Second Draft, for an independent expert body charged with the review of periodically submitted State reports (see article 15.2 Third OEIGWG Draft). If the draft were to come into being, it would correspond to existing UN human rights core treaties in terms of institutional setup and procedural provisions (cf. articles 28 to 40 ICCPR, or articles 17 to 21 CEDAW). Additionally, State reporting is also common under already existing framework conventions, such as the FCNM, and has also been proposed for a framework convention in BHR.

State reporting is considered a sovereign-friendly and thus “weak” monitoring mechanism, in comparison to judicial or quasi-judicial mechanisms for instance. With a view to both a possible conventional treaty and a framework convention, State reports seem to be the most imaginable choice; precisely because of some of a BHR potential instrument’s delicate questions (such as remedies for individuals or the “effective regulation” of business enterprises). More crucial than the choice of the means of supervision, however, will be the specific institutional design, i.e., which body or entity will exercise the oversight function and examine the State reports.

What Kind of Specific Monitoring Body to Choose?

Choosing the treaty’s instrument’s character also influences the choice of which body or entity performs the oversight function. Under a conventional treaty, as also currently provided for by the Third OEIGWG Draft (article 15.1-15.4), monitoring is carried out by a body composed of independent experts, serving in their personal capacity. At least in theory, they are free from governmental influence and their independence shall serve to shed as much critical light as possible on the human rights record of State parties (see ‘Addis Ababa guidelines’, Annex I in the cited document). Under a framework-style agreement, the monitoring could fall to the State parties themselves in the form of a Conference of State Parties (CoP), probably assisted by a technical or advisory body. As the CoP is composed of State representatives, there is potential for significant influence by governments on the review process, what can ultimately lead to politicisation.

The FCNM provides a good illustration of this problem. It was set up within the Council of Europe and, as a human rights treaty, is intended to protect the rights of persons belonging to national minorities. It was precisely the FCNM’s institutional setup as a framework convention with a CoP and an advisory body that had given rise to concerns that the review process would prove politicised and thus ineffective. According to article 24(1) FCNM, it is the Committee of Ministers of the Council of Europe (CoM) that monitors implementation. Pursuant to article 26(1) FCNM, the CoM shall be assisted by the Advisory Committee (AC). The latter evaluates State reports and adopts its own opinions, which are then transmitted to the CoM for final evaluation. The CoM, in turn, adopts final resolutions addressed to the State party under review and may be guided by the opinions adopted by the AC (for the procedure, see here). A mere textual reading of the provisions unequivocally signals, however, that the AC is limited to an assisting function. Moreover, article 26(2) FCNM stipulates that the AC’s Rules of Procedure shall be determined by the CoM. Consequently, it is the States – through the CoP – that bear the main responsibility for reviewing State reports, which may easily create a politicised atmosphere (on such initial concerns, see here). Hence, with a view to a future instrument in BHR, putting the responsibility for monitoring exclusively in the hands of the State parties themselves through the CoP could as well potentially set incentives for politicisation of monitoring rather than providing a forum which is dedicated to strict and close scrutiny of human rights records.

Procedural Safeguards for Independent Monitoring

If a framework convention in BHR were to mimic existing ones in procedural and institutional design, one would have to think about procedural safeguards ensuring the proper and impartial functioning of the monitoring process. That is to say, provisions in the text should seek to strengthen and enhance the role of a possible advisory body. These provisions could be tailored to promote a balance between an advisory body, composed of (independent) experts, and the CoP as the main organ, composed of State representatives. For one, it is worth considering experiences made in the past in the context of the FCNM. For another, although different in their mandates and functioning, one could also think of drawing inspiration from powers attributed to or enjoyed by the UN human rights treaty bodies.

Under the FCNM, initial fears of a politicised atmosphere have proved to be unjustified and nowadays there seems to be “confidence” of the CoM in the work of the AC. Although the CoM considers itself the adequacy of the measures taken by the State party (see Rule 24 adopted by the CoM), it generally agrees with the AC’s opinions and almost always adopts them verbatim in its final resolutions. In addition, in those rare cases where it did not agree with the evaluation given by the AC, diverging opinions by the AC were also published by the CoM ), even though it has the power to decide not to publish all opinions (Rule 26 allows for a deviation from the general rule of publication). It is argued here that such a possibility of deciding not to publish opinions adopted by the advisory body should not be included in a future framework-style agreement. Quite the contrary, one could even go further and explicitly codify that the CoP must take due account of the opinions rendered by the advisory body. The latter is reminiscent of the obligation of State parties to take due account of treaty body recommendations and the expectation to provide reason whenever they do not agree with certain views or concluding observations adopted by treaty bodies.

Another aspect that could be replicated from the FCNM and integrated into a future BHR framework convention is the AC’s practice of adopting thematic commentaries (so far four commentaries exist under the FCNM) that clarify and interpret substantive provisions in a more abstract fashion. The practice bears great resemblance to the adoption of General Comments by the treaty bodies of the core international human rights treaties, which serve the same purpose of clarification and interpretation. It is remarkable that the Third Revised Draft of the OEIGWG explicitly includes this power (article 15(4)(a)), which would constitute a novelty compared to the existing UN human rights treaties. It is a codification of long-standing treaty body practice, but its inclusion in an international instrument could provide greater clarity as to whether this function, which has so far been implicitly assumed, is covered by the mandate of the human rights treaty bodies.

With a view to uncertainties as to the exact meaning of substantive provisions under a potential BHR treaty, regardless of the form it will eventually take , such general comments or commentaries could trigger further discussions and slowly but steadily lead to the progressive development of international law and consolidation of normative standards. The incorporation of a similar provision to article 15(4)(a) Third OEIGWG Draft into a possible framework-style agreement is therefore definitely worth considering and any future advisory body should be vested with the explicit power to adopt such comments.

Yet, States could easily oppose the explicit inclusion of such a power or could later criticise the content of such comments, particularly within a framework convention that is meant to provide for a broader set of minimum standards. Regardless of the treaty’s final character, State parties could argue, as occurred in reaction to General Comments adopted by the UN human rights treaty bodies, that provisions are being rewritten and that new obligations are imposed which are not covered by the treaty’s wording. Clarifying rather abstract provisions by means of such comments could provoke just such reactions. Nevertheless, it seems appropriate to consider the explicit inclusion of such a power. Commentaries adopted by an advisory body under a future framework-style agreement could serve as a clear counterweight to a possibly politicised review process on the part of the CoP. They could serve to attach more visibility and importance of the work and experiences made by the respective advisory body.

Conclusion

What becomes apparent is that a framework convention in BHR does not necessarily imply downsides regarding the monitoring system. As the choice for the institutional setup remains with the drafters, there could be any kind of supervisory system. However, given the institutional setup of existing framework conventions, such as the FCNM, and the accompanying risks of a politicised review process, the drafters should definitely pay attention to procedural safeguards at an early stage of the drafting. If the drafters were to follow the procedural setup of other framework conventions with a CoP and an advisory body, any kind of such advisory body must be able to operate independently, free from political interference. This necessitates provisions that enhance and foster its position and powers under the review process. The examples above, such as including the obligation to publish the advisory body’s opinions without exception and the possibility for such a body to adopt commentaries reflecting its own understanding of substantive provisions, are just two among many. There is clearly room for further creative thinking.

Cite as
Nils-Hendrik Grohmann, How to Avoid Politicised Monitoring?: Treaty-Design Suggestions for a Business and Human Rights Framework Convention, Völkerrechtsblog, 23.06.2022, doi: 10.17176/20220623-153108-0. 

Nils-Hendrik Grohmann is a research assistant at the University of Potsdam and a Law Clerk (‘Rechtsreferendar’) at the Higher Court of Berlin. He recently handed in his PhD thesis, focusing on the strengthening process of the UN human rights treaty bodies.

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Reflections on the  Völkerrechtsblog Symposium Essay, Nils-Hendrik Grohmann, 'How to Avoid Politicised Monitoring?: Treaty-Design Suggestions for a Business and Human Rights Framework Convention'

Larry Catá Backer

1. Implementation is a hard business.  The critiques of the BHR Treaty and its OEIGWG Third Revised Draft have been quick and effective in pointing out those shortcoming.  It is at the same time useful to consider the way that a framework approach might itself be subject to the same weaknesses.  More importantly perhaps, it might be even more useful to consider what in the Third Revised Draft (along with insights drawn from the European Framework Convention for the Protection of National Minorities (FCNM)) can be usefully transposed in that respect to a framework approach. That is precisely what this excellent essay does with the quite critical object of minimizing the risk of politicized monitoring.  

2. The notion of politicized monitoring is itself worthy of some substantial consideration.  There are three reasons that come to mind, though there are likely many more.  These touch on the nature of democracy and democratic theory within both liberal democratic and Marxist Leninist system. They also touch on the constitutional character of the principles of compliance, assessment, accountability, and correction as a methodology for the realization of the core role of the state to prevent, mitigate, and remedy (either directly or through its subsidiary organs, for example NGOs, enterprises, churches, and other collective organs)  wrongs with respect to which states may or must have a duty.

3. The FIRST touches on the semiotics (the fundamental understanding of the narrowing space of politics within liberal democratic orders.  This suggests at first glance a contradiction between the objective to depoliticize the BHR Treaty monitoring process, on the one hand, and the essence of the state as the highest and most legitimate form of politics on the other.  That is turn reminds one that there is a growing bifurcation within the conception of the state apparatus.  Again. on the one hand the theory of democracy within liberal democratic orders centers the exercise of democratic politics in and through the organs of governance.  Yet increasingly that exercise is confined to the organs of state in which elected officials function. Those organs constitute the realm of politics within the state.  On the other hand, the administrative apparatus of state--one peopled by administrators and bureaucrats exercising quasi legislative, judicial and executive authority delegated to it by the political branches--are increasingly meant to exist beyond politics.  Theirs is the essence of the application of the rule of law, or of quantitative measures.  The theory is better developed in Marxist Leninist states where the political sphere is centered on the vanguard in power and  exercised through, for example, whole process consultative democracy, while state organs are understood as playing primarily an administrative role through their elected representatives (see eg here).

4. THE SECOND touches on the transformation of the semiotics of government from one that was centered on the state as the space for the articulation and practice of the popular will to that of the state as a great router for systems of compliance, assessment, accountability, and correction. These functions in turn, by reference to norms developed through the political spheres of state organs, or, increasingly in the case of BHR, by transposition of international law and norms. If the state is effectively a large administrative agency, then it is critically important for state organs to be managed in the exercise of their administrative discretion in the implementation of objectives based systems of compliance, assessment, accountability, and correction. The predicate for such systems is a robust set of data against which state performance may be measured against objectives, and assessed by reference to the compliance efforts of other states. These may be qualitative, or increasingly quantitative. 

5. THE THIRD touches on the application of the core principle of prevent, mitigate, and remedy as a principle beyond politics. Though states might have once thought that the semiotics (the collective meaning) of these terms and that principle might have been understood by reference to local context. The internationalization of these terms, and that principle in the context of BHR then removes both margins of appreciation (otherwise comparison and assessment becomes more difficult) from the level of the state and vests it with the community of states and in the international sphere.  The effect, then, is a delegation of sovereign discretion up to the international level, and the re-characterization of the object of internationalization from political to administrative.  The state, then, becomes a first level administrative organ of a transnational system, the objects and principles of which revolve around the administrative rule based principles of compliance, assessment, accountability, and correction, animated by the  operational principle of prevent, mitigate, and remedy. 

6. This provides the context that makes the essay both appealing and compelling in important respects. The essay astutely notes the role of Article 15 of the OEIGWG Third Revised Draft in the elaboration of such a system. But it also reveals the challenge--the need to eliminate politics from the process. The essay notes that " FCNM provides a good illustration of this problem." To meet the challenge procedural safeguards must be instituted and institutional design shaped to mitigate exercises of state discretion with respect to reporting as well as performance that falls beyond the expectations set under the leadership of a central coordinating body. . . or body of rules collectively administered from the center. Again, the FCNM provides useful guidance. Well noted is the soft measures that are aimed at the development of consensus through managing the narrative of rights as well as managing the process of the meaning making of terms.  The framework approach, and even perhaps the Third Revised Draft, might be understood as a project of collective meaning making first, and then the diffusion of that meaning through the administrative organs of states. To that end a more robust recognition of the bifurcated role of states, of the primacy of compliance based operations for the administrative apparatus of states, and their role as administrators of international political decision making, might be useful, whatever the form the BHR Treaty eventually takes.