Wednesday, June 29, 2022

Part 9 Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Larry Catá Backer, "Beyond the Ritual of Treaties as Gestures: Effectively Closing the Governance Gap in the Area of Business and Human Rights with a Framework Treaty"

 


 

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 9 we consider my essay: Larry Catá Backer, Beyond the Ritual of Treaties as Gestures: Effectively Closing the Governance Gap in the Area of Business and Human Rights with a Framework Treaty, Völkerrechtsblog, 24.06.2022, doi: 10.17176/20220624-161958-0. Because it makes no sense to include reflections on my own essay I thought it might be more interesting to substitute for reflections the comments of "Reviewer No. 2" and my responses. That perhaps get closer to the sort of textual dialogue I have been aiming for in these posts. 

 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

 

Beyond the Ritual of Treaties as Gestures
Effectively Closing the Governance Gap in the Area of Business and Human Rights with a Framework Treaty

24.06.2022


A framework convention approach to the regulatory management of the human rights and sustainability effects of economic activity holds much promise. Defined as an international instrument establishing a general governance system built around broad party commitments, a framework convention leaves “more detailed rules and the setting of specific targets either to subsequent agreements between the parties, usually referred to as protocols, or to national legislation.” Where, as in this context, there exist wide margins of appreciation around core consensus on normative foundations, a framework style agreement hardens the duty of actors around objectives and fundamental norms while permitting a measure of flexibility in their realization. It may thus avoid the regulatory ritualism of efforts like the much criticized project that has to date now produced the Third Draft of the Open-Ended Intergovernmental Working Group (OEIGWG). Nonetheless, a framework style agreement, just like the throwback exercise that is the old UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (‘the Norms’) in an OEIGWG Draft bottle, would face challenges. Those challenges become acute where the instrument means to manage State and non-State actors through the so-called “smart mix” of regulatory measures (statute, caselaw, regulation, public decision-making and the like). Even more difficult is the challenge for treaty making in a polycentric regulatory ecology. This brief essay suggests the broad contours of the challenges of treaty making in the human rights and sustainability environment. It then describes the regulatory ecologies whose gaps add a substantial obstacle to effective, rather than ritualistic or gesture based, treaty projects.

The Challenge of Polycentricity and International Law Making

A core challenge for any public law instrument is to identify and overcome the perceived governance gaps in activities unconstrained by territorial borders and state power. In this case that governance gap remains substantially unchanged since articulated by John Ruggie in the process leading to the endorsement of the UN Guiding Principles for Business and Human Rights (UNGPs). Two forms of those gaps are noteworthy here: (1) the disjunction between the regulatory authority of States and the integration of global production across borders; and (2) the sometimes substantial differences in the normative values of legal orders. This was made more difficult by the inability or the refusal to confront regulatory gaps between normative systems (liberal democratic, Marxist-Leninist, theocratic, and identitarian) as well as governance gaps among five emerging key systems of legal-regulatory ordering now emerging.

The Norms have failed, and the process that has to date produced a Third OEIGWG Draft will fail, precisely because both insist that legal legitimacy must be grounded in a 20th century sensibilities about the role of law in and through States. The framework convention approach, on the other hand, may succeed by combining shared goals, principles, and general obligations with procedures for negotiation and adoption of supplementary rules, as well as incentives for voluntary adoption of measures. With this combination, it enhances the possibilities of convergence. Success, however, presupposes a better understanding and recognition of the character and role of the emerging regulatory environments, whose gaps drive the challenges for better management of human rights and sustainability-based behaviors among economic actors (public and private). Each of these technologies of governance poses a different challenge to the project of framing the human rights and sustainability effects of economic activity. Well interwoven, however, they represent a powerful, multi-layered approach to coordination through a framework convention.

The Polycentric Regulatory Environment at the Core of Successful Regulatory Frameworks

Each of the emerging mechanisms of international law and governance contributes an important aspect to the viability of a potential framework convention (here is a more theoretical framing, from which the following is drawn).

Orthodox and Traditional International Law. The Norms and the Third OEIGWG Draft start and end within this regulatory field. This is perhaps best understood in this context as a form of husbandry that view the autonomy of the individual as property in the hands of the state They are meant to mirror the domestic legal orders but not to reach them directly. The subject can be divided into two broad objectives. The first objective is a convergence directed towards the development of fundamental norms that promote cooperation and interaction as well as provide a common normative language. The second objective is to protect and develop national productive forces – encompassing people and things. The objectification of international law – as the overseer of systems – is designed to facilitate value-enhancing interactions that protect State investment in its human and other resources. It a system that lurches toward the constitutionalization of supra-national governance collectives whose “citizens” are States. To those ends, legalization has been the mode of operationalization par excellence. It has become so ubiquitous that both its novelty and fragility are hardly recognized. Tied to the legalization of inter-State relations is the judicialization of dispute resolution. Discursively, the rule-system narrative of legalisation-judicialisation through supranational law stresses the objectives of (1) stability and prosperity; (2) unity in diversity; and (3) convergence and consensus. Coming back to the metaphor of animal husbandry, this produces its own set of narrative taboos: harming the welfare of nations, reducing the value of populations, and challenging the primacy of wealth creating social and economic structures. Its mechanics center on ‘contracts’ (treaties and related measures) between States and on the constitutionalization of international organs. This is the solitary focus of mandatory measures: governance by displacing normative and governance development by its restatement or version of rules, systems. It works perfectly in a world that can be made more perfect in and through more perfectly ordered States.

The Private Law of Public Law. In this area, one encounters the development of State regulation through private activity, put differently: the emergence of a private law of public law. This is the private law of sovereign wealth funds (SWFs) and of State-owned enterprises (SOEs); it is the governance realm of international financial institutions. This kind of State regulation provides the legal framework for the internal governance of public lending and of investment guarantees. The government of Norway, for example, may not intervene directly in Brazil, but it can indirectly project its public policy through the internal regulation of hydro throughout its production chain,. The Sustainable Global Supply Chain project is one example of this; there are other expressions of this impulse. Private law of public law is expressed through governance contracts, but also as the terms of loan agreements. Here, public policy is transformed into corporate governance and administrative regulation into compliance systems. Public international norms advance this project through instruments such as the Santiago Principles and the OECD Guidelines on Corporate Governance of SOEs. The value of this regulatory ecology is that it frees States of territorial constrains -it is functionally differentiated soft extraterritoriality and a powerful force in BHR regulation (e.g., UNGP 2, 23).

The Public Law of Private Law. Governance gaps and the limits of direct State action in markets have also created incentives for compliance-oriented regulation and the governmentalization of the private sector itself. The thrust of European efforts to legalise due diligence operationalized through private bureaucracies within business provide a contemporary example (France; Germany; EU). More than that, the trend toward the legalization of corporate responsibility also contributes to a process of mandatory delegation of regulatory-administrative functions structured as compliance and accountability measures. Mandatory human rights due diligence, ironically, fuels the growth of governmentalized private economic entities which are now made responsible for the administrative oversight of actors and activities within their global production (or value) chains. At its limits, the economic sphere is reconstructed as the primary space for the management of human relations and the conduct of aggregated actors. Current projects of human rights due diligence transform the State into a centre of objectives and accountability, whose operationalization is undertaken not through public administrative organs but by the regulatory systems of private responsible actors.

The ‘Law’ of Data-Analytics. Data-driven governance is as important in the context of human rights and sustainability as it is in virtually every other regulatory space of human social organization. It does not fit well with traditional forms of governance, and yet may come to dominate its practice. Law and norms become data and analytics. Judgment becomes algorithmic determinations of consequences. And all of this can be done (once it is operationalized) without much human intervention. It is the law of simulation and modelling where behaviors can be described, relationships simulated and behaviors managed in real time. It is well suited to the pace and focus of managing the consequences of economic activity, driven by the principles of prevention, mitigation, and remediation. The modalities of governance are shifting from the qualitative to quantitative dominion. This becomes a project of formal internalization of norms without the bother of command and enforcement processes. It is better aligned with the sensibilities of the market and of the operation of enterprises, than with the formal, bureaucratic administrative sensibilities of the State and its public law. This is the space where the coder is king and the analyst who is creating and overseeing analytics and algorithms is the legislator.

Platform Governance. Automated law, data-driven governance, requires its own regulatory spaces. The speed and data embeddedness of quantitative governance can neither keep up with the pace of the 20th century bureaucratized administrative state. Nor can this form of governance match the pace of economic activity. Something else is needed: a space where consumers and producers of information and norms central to the administration of a system may meet and interact. This is the platform – a virtual but powerful space for governance and the archive as the constitution of government. This is the realm of Chinese social credit systems; this is the space where information is coordinated for regulatory ends—from accreditation to blacklisting and collecting information necessary to develop judgments about the activity and to develop measures to nudge behaviors. It is also the space in which ratings systems and disclosure systems, such as Modern Slavery Acts, and variations of mandatory human rights due diligence (HRDD) operate. Thus, compliance-oriented and accountability systems themselves lend their organization to the sensibilities of the platform governance. In this sense, the platform mimics the form and function of the framework convention approach itself; a framework agreement can be understood as a regulatory platform.

From Polycentric Systems to Systems Treaty that Makes Sense

Drafting an international instrument today is not as simple or simple-minded as it might have been in the late 20th century. Embracing ancient orthodox treaty forms will not bring back a world order that is currently quickly receding. Acknowledging and incorporating current governance systems and seeking to coordinate them towards a greater objective is essential to any successful regulatory effort. The alternative would be a beautiful artifact with little impact. Still, transformations have begun with less than gestures that go bad. Like the Norms before it, the OEIGWG Draft, from Zero to Third Draft, is stubbornly and deeply embalmed in the sensibilities and tropes of orthodox and traditional international law. This, indeed, might have been a cause for celebration in the 1980s. In 2022, however, it ought to cause mourning. One mourns a process that fails to recognize and coordinate the private law of public law or the public law of private law within its structures. Detached, these regulatory systems remain beyond the reach of any such a treaty, and efforts will fail to bridge significant governance gaps. The Third OEIGWG Draft may marginalize two significant non-State centered regulatory systems, but it ignores both data driven and platform governance systems. Given the intimate connection between both and due diligence -the core modality of corporate obligation – this gap is both unfortunate and likely fatal to the effectiveness of the effort. A framework convention could end up following that same path, but it does not have to. The approach offers the opportunity both to recognize the need to incorporate the larger architecture of business, human rights, and sustainability, and to develop the structures within which that coordination can be given form. Cassel and Ramasastry noted once: “The main disadvantage of such a ‘framework’ approach 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.” Yet, the framework approach can provide the basis for doing so within the realities of the contemporary regulatory environment, which the Third OEIGWG Draft cannot.

Cite as
Larry Catá Backer, Beyond the Ritual of Treaties as Gestures: Effectively Closing the Governance Gap in the Area of Business and Human Rights with a Framework Treaty, Völkerrechtsblog, 24.06.2022, doi: 10.17176/20220624-161958-0

Larry Catá Backer is the W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs at Pennsylvania State University. He researches in the areas of economic globalization, corporate social responsibility, international affairs, global governance, trade and finance, and on Party-State systems.

 __________

Reflections on the Völkerrechtsblog Symposium Essay, Flávia do Amaral Vieira, 'Resisting Corporate Capture: A Plaidoyer for a Binding Treaty from a Civil Society Perspective'

Reviewer No. 2

What follows are the excellent comments of Reviewer No. 2 and the responses. Each of these comments were thoughtful and materially aided in the preparation of the final text. I am grateful for them and for the opportunity they afforded to better engage with careful and thoughtful readers.  Reviewer 2 comments are in quotations; my responses are in italics

1. "In the UNGPs, the idea of “smart mix” refers rather to “national and international, mandatory and voluntary” not really a smart mix of regulatory measures. It would be useful to clarify this element." Thanks for this. I must respectfully disagree.  That was not my recollection of the way that this concept was worked through in 2008-2011 including but not limited to the smart mix concept as eventually placed within GP 3.  Moreover, my sense has been that, like the rest of the Commentary, the text was meant to be read broadly.  The reference to multi-level governance includes within it the palette of techniques available at each level and among them.  I continue to prefer, as I have over the last decade, to continue to read this broadly and in the manner set forth in the text. Of course, I would welcome reinterpretation along more narrow and legalistic lines (plausible from the text though not readily compatible with the overarching intent—especially given the broadness with which it is sometimes convenient to read other parts of this text) in a responsive blog post.

2. Query re: "human rights and sustainability environment"? What about the business aspect? We are rather used to the term "business and human rights environment."  I have been uncomfortable with that orthodoxy since it became fashionable, and I have made my views quite public.  I respect the good faith of those who use it but I find it troubling both for its reactionary nature and for its narrowness in contemporary discourse. That said, my preference is to use both human rights and sustainability and their separate imaginaries in a unified space, one that is converging, but not without resistance from the older and more orthodox human rights community.

3. "The reference to animal husbandry (made also earlier: “This is perhaps best understood in this context as a form of husbandry.“) warrants further explanation. Please take the reader by the hand and show here how the reference can help her to better understand your argument. you are using it as a metaphor, right? It remains all a bit too vague and therefore leaves the reader a bit cloudy. She remains unsure if she should agree or disagree with you? This seems to be a very peculiar view of international law, that does not include relations of power between states. Probably the international regime of “international trade law” or “international investment law” could lead to those conclusions. But would that be the case of a treaty that aims to. Hahah; I would imagine by this point orthodox readers would already have moved to disagreement.  Here for an older work of mine in which I made the point at greater leisure. To my mind the point is uncomfortable and different but quite clear—humans are just farm animals on the state collective plantation. They along with the equipment and land necessary to produce wealth from their use is what is protected, either in the form of human rights or humanitarian law, so that conflicts among elites might indeed be violent and transformative, but the plantation remains unaffected by such shifts as elites come and go and with them their overlaying ideologies. That is indeed, what to my mind (once one gets past the appealing language) is the essential thrust of the Treaty project with its fundamental baseline in the stripping of human of agency (not humans but victims now)  whose welfare is to be undertaken by defenders, non-state collectives, and the state itself. These are points I have already made and published. I will include a link to this as well.

4.  Re sentence: (The value of this regulatory ecology is that it frees States of territorial constrains -it is functionally differentiated soft extraterritoriality and a powerful force in BHR regulation). "What makes it “powerful”? Is it “powerful”? Maybe some critical view about this regulatory approach would increase the credibility of the argument." It is powerful because it is private; and because it is private it need not respect the limits of the projection of public power from one state into another.  I have added a reference to UNGP 2, and 23.

5. Re: data driven regulatory approaches: "This regulatory approach does not fit very well with the other regulatory approaches. This paragraph maybe needs a concrete example of application in the field of BHR or consider deleting it?" New is always hard.  New that looks to change the language and culture of law and the power systems it sustains is harder still. I recognize that.  And you are right—this is different—and from the perspective of traditionalists (jurists, academics and everyone invested in ancient forms of governance) it does not fit well.  That is the point, though. I have added a link

6. Re platform governance approaches: "The reference to platform governance is introduced rather abruptly. Could you explain a bit more what you mean by this and how it s is of relevance for your text?" That was the point of this short paragraph, apparently unsuccessful.  A longer explanation requires an additional essay and is unnecessary—it is enough for readers to pause long enough to try to figure out what this means, or to risk becoming irrelevant actors in the emerging governance debates. Perhaps the new link provided will help.

7. Re the references to ratings systems and disclosure systems such as Modern Slavery Acts and the variations of mandatory human rights due diligence regimes aligned with platform governance:  "Are these really good examples? To which extent to they relate to “platforms”? To me they are examples the approach of Public Law of Private Law. The reasons why disclosure obligations exist (instead of due diligence obligations) are more the result of a compromise than a manner to regulate through a “platform” approach." This is a polite way of saying you disagree.  That is perfectly reasonable and I would love to debate you on that.  But not here. The reason they are not, as is suggested in the comment above, is that there is no law involved here—only data producing algorithmic categorization based on the transposition of qualitative normative principles and objectives into measurable terms. It is a very different way of thinking about things one which the traditionalist human rights community has yet to catch up with; that is a pity, the objects of scrutiny (business for example) is already well embedded in this new way of thinking and transcribing legal norms to quantifiable measures and with it shifting the locus of legal interpretation and forward movement from text to quantitative interpretation reinforced through data.

8. "To me, this piece does not consider enough the fact that this draft treaty has been initiated by States in the global South to challenge the economic order. I believe the reason of its possible future failure is not really the orthodoxy regulatory approach, but simply that it challenges powerful States and companies.
The author must distinguish this. Would the argument be the same for an international investment treaty aiming at protecting private foreign investors? Or in that case is the orthodox approach a good one?" I had to smile—as an immigrant from Cuba, and one who retains strong ties to the global south though from afar-- this comment was interesting, valuable, and made me think a little.  First, I agree that the greatest positive of the Treaty process has been its aperture to voices reflecting the sensibilities and perspectives of  the Global South and that this is a practice that ought to be broadened. I am well aware of the identities, the prosopography and the politics of the leading forces of the global south in the interactions after 2014.  I am also aware of some of the backstories that were masked by the South-North narrative that was meant to provide legitimacy for the effort post 2014 and in the work of the IGWG. That genealogy is worth writing about, to be sure; just not here. I do note that the narrative of that engagement cannot without distorting effect be reduced to something simple and linear—my take has been a bit more nuanced—the development over the last 2 generations of an international class of elites with a much greater fidelity to each other than to the particular places from which they derive their positions (and authority) makes for more interesting analysis. Just not here. The politics of the Treaty drafts are indeed voices of not just the Global South, but also of the old Soviet vanguard states and of the politics of the 1960s and 1970s now revivified and repackaged for contemporary consumption.  I will add a link to an article or so of mine in which this is discussed, but the discussion is far too long for a blog essay. I am no friend of this approach precisely because I view it as a reactionary effort to capture the zeitgeist of a world long dead, except in the rearview mirror of those who somehow still view its narrative as the architecture of a possible golden age. I do not. I would look forward to those who continue to embrace that view to press their point through the Treaty with even greater fervor. That is politics. . . and ideology… debate and difference. Hope that will do.  I do note the following that may be of interest in this discussion but for a later date.

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