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
For this Part 8 we consider the wonderful essay: Resisting Corporate Capture: A Plaidoyer for a Binding Treaty from a Civil Society Perspective, Völkerrechtsblog, 23.06.2022, doi: 10.17176/20220623-153022-0; 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
Resisting Corporate Capture
A Plaidoyer for a Binding Treaty from a Civil Society Perspective
Resolution 26/9, which established, for the first time in the history of the United Nations, an intergovernmental body charged with the responsibility to elaborate an international legally binding instrument to address corporate-related human rights abuses – the Open-ended intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIGWG). Since then, seven negotiation sessions have taken place, on all of which different actors sought to influence the substance of the proposals. In this blog post I will focus on the role and mode of engagement of civil society in this process.
My main argument is that, in a world under corporate governance, where we have no difficulty finding cases of human rights violations related to corporations – mainly in the Global South – civil society acts as an important counterpart against corporate capture, understood as the power connecting States (especially those from the Global North) and transnational corporations (TNCs). The argument presented here is part of a broader research, in which I have been investigating how the negotiation sessions of the OEIGWG operate through participant observation.
A Story of Motion and Counter-motion
The struggle for a regulatory instrument for corporate accountability for human rights violations has been going on for more than 40 years within (and outside of) the United Nations. One milestone was the speech Salvador Allende delivered at United Nations Assembly in 1972. It was the first time that the role of TNCs play in the construction of instabilities in democratically elected governments was addressed. “International law does not have to be identified with the interests of large capitalist companies”, Allende stated, hinting to the important role civil society plays in international treaty negotiations. In the Global South, where colonization ensured the exploitation of labour and resources through the use of force, post colonisation sustained similar exploitation through the use of financial blockades, among other diverse forms of informal interventions disguised as claims to protect private property. The coup d’état in Chile, which took place a shortly after Allende’s speech is one case in point and marks the beginning of what quickly became neoliberal hegemony in Chile. At the same time this spurred a sequence of efforts to adopt human rights standards and hold transnational corporations accountable. In 1973, the United Nations Economic and Social Council (ECOSOC) gave a “Group of Eminent Persons” the task of advising on matters related to transnational corporations. Since then, commissions and groups were formed, drafts of norms and codes were presented, until 2011 when the UN Guiding Principles on Business and Human Rights (UNGPs) were adopted. The UNGP process has been the most prominent alternative to the norms and codes initiative drafted prior to 2011 – albeit being a soft law instrument.
Post-UNGP: Resolution 26/9 and the Treaty Project
With the creation of the Working Group in charge of promoting, disseminating and implementing UNGPs, a new chapter of technical, practical, and theoretical work in law was opened. Yet, only a few years after the adoption of the UNGPs, with Resolution 26/9 the project of a binding treaty on the issue became possible, marking the turning point in this history of Business and Human Rights.
The Resolution’s approval was widely celebrated by those who understood that only a binding instrument could fill the existing regulatory gaps regarding accountability (or rather, the lack of accountability) of TNCs for human rights violations. Besides that, the vote was a historic moment in which a narrow majority made the geopolitical fault lines on the issue visible. The Resolution was supported mainly by delegates of the Global South and opposed by all EU member state, as well as by (most) of the States in which the major TNCs are incorporated. In its text, the Resolution highlighted the crucial importance of civil society participation in the promotion of corporate social responsibility mechanisms.
And civil society took the job assigned to it (very) seriously. Over the years, civil society has actively participated in the process, being present at the sessions and collaborating in the presentation of proposals. Last year, at the seventh session of the OEIGWG, the Permanent Mission of Ecuador, on behalf of the Chairmanship, released a third revised draft for a legally binding instrument. The draft was the outcome of a diverse and participatory process, with crucial involvement of civil society actor, and was intended to serve as the basis for State-led negotiations during the week-long session, which took place from 25 to 29 October 2021 in Geneva. At least that was the envisaged plan…
All over before It Could Even Begin?
Yet in Geneva, the biggest surprise was not the fact that the United States decided to participate in the OEIGWG for the first time, as a (proclaimed) part of the US’ return to multilateral venues. Rather it was that instead of focusing on the current and carefully drafted proposals, the US delegate, in its opening statement, expressed its openness to exploring alternatives to the 3rd Revised Draft, including specifically “a legally binding framework agreement” that would build on the UNGPs. In that, putting forward the idea that the OEIGWG should explore an alternative approach which more stakeholders – including the business community – could support. In addition, the US announced that their delegates would not engage in line-by-line negotiations, as the US continued to oppose the 3rd Revised Draft text altogether.
Proposing a framework design for Business and Human Rights treaty is in fact not a novel idea. A framework convention, is a legally binding international agreement that establishes key objectives and a system of governance, but leaves the details to be determined in the future by an agreed-on mechanism. Perceived by some (here and here) as offering a promising and (more) realistic route, nonetheless, it’s a proposal that goes against what most parts of the civil society engaged in the negotiations at the OEIGWG have demanded, that is the need for clear and binding rules to regulate corporations globally.
Civil Society vs. the US?
To understand how the global alliance of non-governmental organizations, affected communities and social movements working in this context is structured, we need to outline some considerations about contemporary human rights activism: Global civil society is a historically constructed space where contrasting political projects face each other, and in which human rights activism has directed a large part of its activities to the production of human rights regulations and to advocacy, in addition to involvement in strategic litigation. In a sense, this process has resulted in the creation of a participatory culture of governance, which has progressively increased the legitimacy of United Nations agencies, and has also undoubtedly created a genuine space for global initiatives for justice. However, civil society is a non-homogeneous group, which articulates its agendas according to different interests. Despite this, some civil society groups have established alliances for the treaty advocacy, such as the Treaty Alliance.
Against this backdrop it should not come as a surprise that soon after the US made its proposal, more than 40 civil society organizations signed a statement, in which they expressed their concerns. They argued that pursuing a framework convention instead of a conventional treaty would be taking a step back and would waste the enormous resources stakeholders have already contributed in an effort to move the treaty process this far. To these groups, after seven years of ignoring and opposing the OEIGWG, the US attempt to use its political power to undermine the OEIGWG process and its mandate. Moreover, they highlighted that for them the US statement gave evidence to a deeply rooted disrespect for the large group of predominantly Global South States, which had been working together in previous sessions. In their view, it remains crucial that the binding treaty establishes direct obligations for transnational corporations with concrete measures for respecting Human Rights and the necessary implementation mechanisms for their fulfilment.
An Opportunity for Necessary Improvement
Albeit it is important to note that even before the seventh session took place, a large part of civil society was already concerned about the direction in which the treaty negotiations were heading. Indeed, and according to the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity, a network of over 250 social movements and civil society organisations, in its current state, the treaty would be incapable of fulfilling the objectives set out by Resolution 26/9. Likewise, they warn that the use of vague and undetermined concepts may compromise the interpretation and future application of key provisions, not being able to fill the existing legal gaps that precisely allow TNCs to violate human rights without being held accountable for their actions. For them, it is unacceptable to ignore the proposals for how the 3rd Revised Draft could be improved which were presented during the negotiation sessions by representatives of affected communities, social movements and alike by many experts and States.
When negotiating a treaty, it should be noted that the grammar impacts the effectiveness of the commitments established in the document. The use of verbs with broad meaning in the 3rd Revised Draft, avoiding taking specific and determined commitments points to the imprecision of the proposal, as preferring to use “boost, foster, strengthen” rather than “implement, effect, apply”- as the pattern reproduced in the UNGPs. Liability, access to justice, protection of affected communities, are some of the key elements needed to put an end to corporate impunity and without innovative and ambitious provisions, the treaty risks to remain merely one more instrument aligned with voluntary frameworks that have already demonstrated low effectiveness. In the mark of 10 years anniversary of the UNGP, what remains is a poor track record in terms of implementation, while corporate abuses remain rampant globally, especially in the Global South. As a Framework convention follows the same line, that’s why it faces resistance from these groups.
Surely, States are still experimenting with new approaches to regulating issues such as corporate due diligence and human rights reporting. One advantage often cited on adopting a BHR framework convention is that it might swiftly secure broad agreement by States. However, there is no certainty if after the adoption of a framework convention any future protocols or adjustments will be adopted. With such level of insecurity, some proponents doubt if a framework convention would be able to solve the problem of lack of corporate accountability and how this would improve access of victims to effective remedies.
If, on the one hand, the rejection of hard norms has resulted in limited participation from key stakeholders, a point that the US statement did draw attention to, on the other hand, within civil society, despite possible accreditation difficulties, the number of organizations that participated in the OEIGWG’s annual meetings remained stable and significant over time. There is an effort to guarantee the participation of people from the Global South in the sessions, something that could be considered a mark of this movement. This indicates a demand for the democratization of the debate and the political resistance in pursuit of binding norms. For these groups, the participation of the U.S. delegates was only to delay or obstruct this process.
In fact, even if Global North States are not as active in the process, the OEIGWG has significant support by the international community, as illustrated by the average participation of over 80 UN Member States in each of the previous six sessions. Companies also participate in the sessions, even though there is a long debate about whether they should be allowed to do so. For example, in the negotiations of the Framework Convention on Tobacco Control parties were required to insulate the debates about development and implementation of public health policies from tobacco industry influence. It should be mention that there have been some parallels between the US and business associations interventions, and concerns on corporate capture were raised.
Yet, to succeed, any version of a BHR treaty should strive to ensure prevention, protection and remediation of business-related human rights abuses. For the moment, business profits remain concentrated in large corporations and for the benefit of their shareholders, while the damages and risks associated keep being unevenly distributed in society. Against this background, in this blog post, my first argument is that the treaty negotiation process must be protected from corporate capture. Secondly, the discussions prior to the US proposal for a Framework Convention cannot be ignored and must be taken into account if the negotiations move in that direction. Likewise, I emphasize that, in order to be effective, Global South people cannot be a mere observer in this process, given the asymmetries of power and coloniality. These are the public interests that reside within the BHR treaty.
Flávia do Amaral Vieira, Resisting Corporate Capture: A Plaidoyer for a Binding Treaty from a Civil Society Perspective, Völkerrechtsblog, 23.06.2022, doi: 10.17176/20220623-153022-0.
Flávia do Amaral Vieira is a Postdoctoral Researcher at the Federal University of Santa Catarina, Brazil. She holds a PhD in Law from the Graduate Law School of the Federal University of Pará, Brazil.
Reflections on the Völkerrechtsblog Symposium Essay,
Larry Catá Backer
1. The essay advances an important point that weaves together several strands of ideologically embedded premises: "in a world under corporate governance, where we have no difficulty finding cases of human rights violations related to corporations – mainly in the Global South – civil society acts as an important counterpart against corporate capture, understood as the power connecting States (especially those from the Global North) and transnational corporations (TNCs)." The points raised are worthy of careful consideration. Nonetheless, each of the strands might also be used to weave a very different cloth on the loom of a very different ideological foundation. It is useful, then to examine the semiotics (eg, the key terms as objects, as symbols, and as meaning-vessels) of each of these strands. To that end I use as analogy the brilliant exposition of Cynthia Herrup's, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (OUP, 1999) (1631 trial of the 2nd Earl of Castlehaven for the rape of his wife and the sodomizing of his servants; "Sex and gender often provide the issues around which people learn about mastery and its abuse and about privileges and their obligations. . . the trial became a test of the custodial obligations of the King as well as a constitutional struggle over the meaning of good paternal governance." ibid., xiii). Eight points are worth making in that respect.
2. THE FIRST touches on the rationalizing premise of the "world under corporate governance." The premise is well known and understood for its evocative symbolism, and from that, its ideologically driven meaning. It suggests first that an object (corporations) and their operations (governance) are out of place. That in turn, suggests that the signification of both governance and corporation has become something other than it ought to be. Where the signification of these objects produces meaning--a "world under corporate governance"--then its meaning must be challenged by the rationalizing premises of another set of meanings. In this case, of course, that is provided by and the phrase serves as a marker of allegiance, to the Husserl style life world of the state system in which corporations ought to know their place--and that place is to be governed rather than to govern. One starts, then, from a position of a world populated by collectives engaged in powerful actions of lèse majesté. Corporations are the nobility, or in Latin America, the encomiendistas, who would substitute their rule over that of the king, and in the process engage in misrule.
2. THE SECOND touches on the consequences of lèse majesté--a 'global' house in gross disorder. That disorder is itself evidenced by the ease of finding "cases of human rights violations related to corporations." The disordered house of corporate governance betrays the
overarching idealized premises of a system in which order is developed
around the state and its collective expressions through the work of
international organizations.The betrayal is marked by both the violation of legalized norms and by the impunity with which those violations are effectuated. That impunity is itself the product of the substitution of the disorder of corporate governance for that of the legitimate and comprehensive systems of norms and laws proceeding from the state and its various instrumentalities.
3. THE THIRD touches on class distinctions within the state system. and failures of responsibilities when corporations (and states) fail in their duties to their inferiors. Within the disordered patriarchal house, it is the 'servants' and the women that bear the brunt of the consequences of disorder. The disordered house of corporate governance that betrays the overarching idealized premises of the internationalized state system can be measured by its exploitation of the vulnerabilities of the vulnerable (in the case of the essay the Global South), that is those who serve the master. The betrayal becomes a function of of this exploitation--every such act is noted as a failure of responsibility and obligation to dependent populations (in this case labor, local communities, and actors downstream in global production chains).
4. THE FOURTH touches on the critical role of the masses in the (re)ordering of the collectives through the application of law and the protection of the state against the corrupting disorder of its economic nobility. In the language of the essay, "civil society acts as an important counterpart against corporate
capture, understood as the power connecting States (especially those
from the Global North) and transnational corporations (TNCs)." Just as the corporation is an object with a deeply important signification built around a set of essentializing concepts; so civil society is reduced to object (a solidified collective) with a critical signification (as an instrument of proper ordering within state systems) from which meaning may be imposed--as the legitimate agent of democratic expression within liberal democratic regimes (in developed and developing states). That essentializing role is not monolithic. The essay does a splendid job of articulating the self-referencing conception of a more free wheeling civil society space, though one that seeks to situate a n alliance of leading forces at its center: "civil society is a non-homogeneous group, which articulates its agendas according to different interests. Despite this, some civil society groups have established alliances for the treaty advocacy, such as the Treaty Alliance."
5. THE FIFTH, the monarchs (states) must be protected against themselves, especially where the dissipation captures their apparatus. The essay notes that civil society plays a key role in protecting the state against its own weaknesses, the essence of which is measured against the extent of the capture of the monarchy by its degenerate noble houses (human rights avoiding enterprises in exploitative global production). The corruption required a rectification impossible under the UN Guiding Principles--stronger measures were required--and thus the BHR Treaty process as a roadmap for a return to an idealized structural state that could give effect to an idealized vision of the proper ordering of the global societal house now in disarray. In the words of the essay, "civil society took the job assigned to it (very) seriously. Over the years, civil society has actively participated in the process, being present at the sessions and collaborating in the presentation of proposals." The essay notes correctly the "true kingship" in this respect appears to have settled onto states in the Global South--as evidenced by the history of the BHR Treaty process (as the meaning marker for these judgments), and that the Global North remains corrupted--their state apparatus captured by the "world turned upside down" control of its economic servants.
6. The SIXTH touches on the insidious corruption from the inside that a framework approach represents. If the object is to get to an ideal state represented by the advanced forces of the masses represented through civil society, then the framework approach represents a novel means of the reassertion of corporate disorder from inside the BHR process. In the language of the essay, "it’s a proposal that goes against what most parts of the civil society engaged in the negotiations at the OEIGWG have demanded, that is the need for clear and binding rules to regulate corporations globally."
7. THE SEVENTH touches on the role of the US as the catspaw of international business interests. For the advanced forces of civil society coalescing around the OEIGWG project in an effort to sweep away corporate dissipation and restore (good) order through international law, US interventionism reintroduces the corruption against which much effort was expended. In the language of the essay, "after seven years of ignoring and opposing the OEIGWG, the US attempt to use its political power to undermine the OEIGWG process and its mandate. Moreover, they highlighted that for them the US statement gave evidence to a deeply rooted disrespect for the large group of predominantly Global South States, which had been working together in previous sessions." The counter thrust was thus both one of capture and of the protection of the power to exploit along classical Neo-colonialist grounds. Nonetheless, this line effectively conflates the Global South with the civil society alliance at the center of Treaty negotiations. And it essentializes in a reductionist way both the exploitability of the Global SOuth and the power of the Global North. That is lamentable--there are parts of many spaces within the Global North that are as exploited and colonized as any in the Global South; there are parts of the Global South that might rival the Global North in their dissipation (from the perspective of business and human rights). Reductionism and essentialization here work against democratic representation and flattens the lived realities of many people marginalized enough to be unable to project their voices as well as those who now serve as their vanguard in Geneva. To this the intervention of the US adds flavor--first as the dupe of global business interests, and second as the semiotic incarnation of all this is wrong with the current global order. The US is, in effect, the dissipated 2nd Earl of Castlehaven, who like the Earl, must be brought to justice and who has no legitimate place within the discussions around the return to good order.
8. The EIGHTH touches on the fear that the OEIGWG process has already been corrupted. That is to be lamented for quite powerful reasons effectively sketched in the essay--the need to develop a purity of vision in the form of the 3rd Revised Draft of the BHR Treaty. The many in the civil society vanguard, the turn toward vague terms already signals a willingness to move de facto toward a framework approach, or worse, just a legalized version of the UNGPs. But there is a greater sin; in the language of the essay: "it is unacceptable to ignore the proposals for how the 3rd Revised Draft could be improved which were presented during the negotiation sessions by representatives of affected communities, social movements and alike by many experts and States." That this should be a project driven by what the essay believes is the appropriate representation of the Global South is an important factor in the legitimacy of the process. That it should seek to develop and impose a normative standard is the essential feature of an effort to sweep dissolution from the processes and practices of global production. For those who embrace the underlying ideologies, this provides a powerful expression of that vision.
9. Yet its very specificity narrows the scope of that vision. Of course, there is little to be said (as is usual in the discourse of business and human rights) for the application of this meaning universe and its premises as they might be applied to the great Marxist Leninist systems, with their own "Global North" (China; Vietnam) and their global South (Venezuela, Cuba, etc.). This is the product of a long legacy of myopia in the liberal democratic space in which Marxist Leninism is reduced to democratic socialism (Marxist-Leninist lite) or is understood as a transitional phase of states moving toward a specific form of liberal democratic expression, bit one without 'capitalists' or other actors whose capacity for the exercise of governance discretion is autonomous of or superior to the state. Fair enough--that has been a normative position deeply marbled into the self-conception of liberal democracy since 1918. It is from here the the essay proceeds--the state and society must be protected from the misbehavior of a social class (the economic enterprise and its global production chains) that replicate systems of neo-colonial exploitation through privatized mechanisms. Rectification requires both the end of economic autonomy and the re-articulation of principles of state supremacy, under the protection of the masses organized within autonomous (here some irony) mass popular organizations rationalized through a shadow system of civil society. Of course, to that end, civil society legitimacy becomes the critical battleground for legitimacy--and power. And that battleground must necessarily be fought on the field of the normative characteristics of legitimate or representative civil society organs--a litmus test of politics and ideology. In this essay, though, one speaks to a slice of civil society that now stands for (represents) the rest under conditions of political leadership. For Marxist Leninist systems, of course, this is a step too far. For liberal democratic systems, it suggests the closing (or management), rather then the opening, of democratic representative spaces. On the basis of its core premises, the rest of the essay provides a powerful argument in favor of (1) the necessity of suspicion of enterprises unless they exhibit appropriate BHR patriotism under the guidance of civil society; (2) the critical role of civil society in the process; and (3) the role of civil society as a mediating instrument for the leveling of state power and the protection of horizontal equality among states. That argument is worth deep engagement.