Part 2 Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Giulia Botta, 'Unpacking the Potentials of a Framework Agreement on Business and Human Rights'

 

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 2 we consider the wonderful opening essay: Giulia Botta: Unpacking the Potentials of a Framework Agreement on Business and Human Rights: An Opportunity to Transcend the Hard and Soft-Law Dichotomy for More Policy Coherence, Völkerrechtsblog, 20.06.2022, doi:10.17176/20220620-153018-0 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

 

Unpacking the Potentials of a Framework Agreement on Business and Human Rights:
An Opportunity to Transcend the Hard and Soft-Law Dichotomy for More Policy Coherence
20.06.2022

In a context of mounting evidence of adverse impacts of business activities on human rights and the environment, the Business and Human Rights (BHR) legal framework has gained momentum in the international arena, culminating with the UNGPs. Considering the impasse in the current BHR treaty negotiations and the fact that traditional international law-making is in a process of stagnation, what can be a smart and flexible solution to promote a binding legal standard on BHR? The aim is to explore the possible adoption of a framework convention and protocol approach, resulting in a flexible hard law instrument with a soft law content, as potential solution to transcend the hard-vs.-soft law dichotomy for more policy coherence.

This post takes stock of the first UNGPs decade, outlining the need for more policy coherence and for a mandatory international standard. Then, it analyses the undergoing wave towards “hardening the soft”, culminating with the UN Open-ended Intergovernmental Working Group’s (OEIWG) Third Revised Draft of a Legally Binding Instrument. As preconditions for a smooth adoption of a conventional treaty seems to lack, the post, finally, explores the potential opportunities and possible structure of a BHR framework convention.

Taking Stock of the First Decade of Business & Human Rights Implementation

In the last decade, BHR has progressively crystallised with blossoming initiatives as the UNGPs, nowadays the most authoritative global framework against adverse business-related human rights impacts. As the UNGPs turned 10 in June 2021, the UN Working Group on BHR, taking stock of the first decade of implementation, has highlighted that the UNGPs have led to significant progress as common framework for all stakeholders.

According to John Ruggie, structural governance gaps hamper effectiveness and accountability, requiring a smart-mix of voluntary and mandatory solutions. However, challenges related to coherent implementation and effective enforcement persist, connected to its inherent soft-law nature and the lack of centralized mechanisms. For instance, only 30 countries have adopted BHR National Action Plans so far, essential opportunity for holding governments accountable for the protection of human rights (DIHR 2017). As lack of coherent and homogenous implementation emerges (OHCHR, 2016), setting-up a clear international standard becomes essential. Furthermore, as outlined by Martti Koskenniemi, when confronting with increased proliferation of multiple and fragmentary sources of law and new types of international norms, as in the case of the BHR subfield of law, coordination challenges may arise requiring systemic integration efforts and increased synergy. In this regard, the OEIWG, in the UNGPs+10 Roadmap for the Next Decade, selecting priority goals and eight action areas, has pointed out the crucial importance of improving policy coherence to reinforce more effective government action (goal 2.1), as a core priority to foster a systemic approach and better protection for victims.

“Hardening the Soft” Processes: Seizing the Mandatory Wave with a UN Treaty?

Observing the current BHR status of development, a patchwork of fragmentary voluntary and mandatory measures is evident at national, regional and international level, requiring more policy coherence. The Working Group has recognized the urgency to seize the mandatory wave (goal 2.2), making emerging binding requirements effective. Evolving processes towards mandatory human rights due diligence measures are evident in some jurisdictions: in the EU, the French Loi relative au devoir de vigilance, the German Supply Chain Act, the Dutch Child Labour Due Diligence Act and a Dutch proposed legislation on human rights due diligence constitute few national examples. Moreover, EU-wide efforts to comprehensively regulate human rights due diligence have culminated in the EU Commission proposal for a Directive on Corporate Sustainability Due Diligence (23/02/2022), paving the way for a European comprehensive legal standard.

At the international level, a trend towards “hardening the soft” is corroborated by the potential UN Treaty: the OEIGWG appointed since 2014 issuing Elements for the draft legally binding instrument (2017), have released a Third Revised Draft of a Legally Binding Instrument(2021). Regarding its scope of application and substantive content, the draft would apply to all business activities including transnational ones, aiming to facilitate effective implementation of State obligations to respect, protect, fulfil human rights; to ensure corporate respect of human rights; to prevent and mitigate abuses through effective monitoring and enforceability. Thus, taking inspiration from the UNGPs, it would transform many of their recommendations into legally binding commitments with multiple benefits (Bonfanti, A, 2021).

However, political resistance and polarization between groups hampers attempts towards legally binding obligations, triggering debates on the desirability and possible content of a treaty. Among key criticisms, a treaty has been considered unnecessary and dangerous. For others ineffective, being too ambitious and broad in scale, risking to create “an unworkable one-size-fits-all approach”, hindering legality and predictability. For instance, Ruggie argues that there is a too wide diversity of concerns that need to be addressed which cannot be captured by one comprehensive treaty, risking to “generate serious backlash by undermining the credibility of further international legalization”.

Despite the criticisms, a general mandatory instrument is a necessary addition to the global BHR regime, considering the obligation and the potentials for establishing formal compliance mechanism as core value-added of law, as outlined by Simons (2017). Good reasons to adopt the draft are linked to the enhanced legal clarity and the creation of an international mechanism clarifying duties, rights and legal consequences. Further, its binding nature could ensure effective application, creating positive impacts on access to justice for victims and potential advantages resulting from mutual assurance.

The need to counterbalance a long-term treaty project and problems in its effective adoption and the urgency to act to create short-term impacts for protecting victims requires to think about smart and flexible solutions to agree on an international framework. As preconditions for a smooth adoption of a conventional treaty seems to lack, a possible way forward is to explore alternative and flexible regulatory paths in such complex arena.

A Desirable Way Forward: Why a Business & Human Rights Framework Agreement?

To consolidate an international legal framework and increase policy coherence, the adoption of a standard-UN Treaty is not the only viable solution, also considering that traditional international law-making is in a process of stagnation, both quantitatively and qualitatively. In such context, adopting a “framework convention and protocol approach” instead of a more traditional single piecemeal treaty is a desirable, feasible and effective option for multiple reasons. A BHR framework agreement could serve as a regulatory umbrella with the force of a treaty building on progressive implementation of the UNGPs and functioning as springboard for more specific subsequent standards-setting.

In general terms, framework conventions as sources of law are a relatively recent phenomenon, primarily employed in international environmental law, with the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (1977) and the Vienna Convention for the Protection of the Ozone Layer (1985) among the first. Standardized legal definitions and fixed models for framework conventions are missing, as they vary considerably in content, degree, form of substantive obligations, institutional design. Nonetheless, as Bodansky explained in the technical briefings series to the Framework Convention on Tobacco Control in 1999, they “establish a general system of governance, and not detailed obligations”, formulating general objectives and broad commitments for the parties. More detailed rules and specific targets are addressed by either parallel or subsequent agreements between the parties, often through protocols.

Regarding a possible envisaged structure, a BHR framework convention could set out initially “overall objective” and “guiding principles” based on the UNGPs’ protect, respect, remedy framework. Further, State parties’ “general obligations” and more substantive elements would follow. Particularly, clear provisions on the “development of the convention” establishing an effective institutional set-up are key to establish a flexible governance regime able to adopt subsequent agreements and additional protocols. Indeed, some limitations must be pointed out. Framework agreements, conventions and protocols are subject to the law of treaties and relevant practice, therefore they are not per se easier to negotiate. Protocols, indeed, require ratification of parties to the framework, risking to perpetuate stalemate on specific subjects and to limit the number of interested parties. Moreover, it is not an inner characteristic of frameworks to be more flexible than other treaties providing the possibility to fill-in the general setting with protocols. Indeed, their effectiveness and flexibility to respond to social and technical or technological change reside on how the framework convention architecture is designed.

Benchmarking existing examples, the Framework Convention on Climate Change (1992) includes precise provisions on the adoption of protocols and annexes, methods of modification and amendment that can provide further inspiration. It builds on an innovative structure setting-up a general system of governance and an institutional design based on the Conference of the Parties (COPs) (art.7), able to adopt subsequent agreements and protocols- such as the Kyoto Protocol (2005) and the Paris Agreement (2015) which complement and expand the general framework with technical and substantial specifications.upreme monitoring body of the convention could keep under regular review the implementation of the framework agreement requiring mandatory implementation of BHR NAPs and it could set up commissions to monitor the adoption of specific protocols. Peculiar protocols on precise subject matters in line with new challenges and emerging practices may be adopted. They could address key-parameters for due diligence legislations, peculiar standards in high-impact sectors for human rights requiring tailored approaches, specific regimes as in the case of the State-business nexus and public procurement, expressly not addressed by the Third draft.

Finally, a BHR framework convention would be beneficial for different reasons. At practical level, it would be a potential compromise to resolve the current impasse, being conceived as “hard law instrument with a soft law content”, as De Feyter aptly puts it. Indeed, a formal treaty with less detailed substantive obligations could be more easily agreed by UN Member States, speeding up the negotiation process. Further, in substantive terms, it could function as a springboard for the flourishing of a general international standard built on progressive implementation of the UNGPs, to be further complemented by additional specifications and regimes of protection to be agreed on at a second step. Moreover, it could foster more policy coherence, if built on the UNGPs. Both instruments could complement and reinforce each-other in a fully coherent mix, following the International Commission of Jurists remarks that there is no need to consider the ongoing treaty process and the UNGPs as mutually exclusive. In conclusion, differently from a more static and single model of BHR regulation, its potential flexibility offers spaces for progressive development and for continuing policy innovation as key opportunity.

Conclusion

In the aftermath of the UNGPs second decade of implementation, enforcement gaps in standardizing the protect, respect and remedy framework persist requiring more policy coherence and urging a BHR binding international standard. Considering the impasse in the negotiation process towards a conventional treaty, a BHR framework agreement constitutes a smart and flexible solution to effectively seize the mandatory wave, needed now more than ever. Indeed, given its potential inherent flexibility, a framework convention could serve as regulatory umbrella with the force of a treaty building on progressive implementation of the UNGPs, being an effective hard law instrument with soft law content, transcending the binary of a hard vs. soft law dichotomy. Functioning as a springboard for more specific standards-setting, it could facilitate progressive development of BHR norms and practices at international level. If properly designed it provides a powerful flexible tool to be adapted to new emerging challenges and complexities in the BHR field.

Cite as
Giulia Botta, Unpacking the Potentials of a Framework Agreement on Business and Human Rights: An Opportunity to Transcend the Hard and Soft-Law Dichotomy for More Policy Coherence, Völkerrechtsblog, 20.06.2022, doi: 10.17176/20220620-153018-0. 

Giulia Botta is a Ph.D. candidate at the University of Milan, in the program “Law, Economics, Ethics for Sustainable Development”, under the Faculty of International and Public Law. She conducts interdisciplinary research in Business & Human Right and Public Procurement law for her research on “Public Procurement & Human Rights: A Challenge for Public and Private Actors to Foster Responsible and Sustainable Supply Chains”, conducting visiting research at the University of Copenhagen – Centre for Private Governance (CEPRI) and at the Danish Institute of Human Rights (DIHR). She works as consultant at the UN System Staff College, Knowledge Center for Sustainable Development.

 

 

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Reflections on the  Völkerrechtsblog Symposium Essay, Giulia Botta, 'Unpacking the Potentials of a Framework Agreement'

Larry Catá Backer

1. The effort to articulate a principled basis for the continued forward movement of the legalization of the UNGP 2nd Pillar, or parts of it anyway, at the international level, is highly appreciated.  More appreciated still is the effort to embed that effort at putting together a mandatory international instrument in the history of efforts to develop a framework for rationalizing the current system of state duty (expressed through law in the 1st Pillar UNGP), corporate responsibility (expressed through private law driven by markets , the so-called social license of the 2nd Pillar UNGP), and the accountability measures applicable to both through an articulation of the remediation standards attached to the prevention-mitigation-remedy principle at the core of both state duty and corporate responsibility (expressed through the 3rd Pillar UNGP). History is useful, indeed, though the lessons from history tend to be a function of ideology. . . and objectives based necessity. That s also nicely framed in the introduction--and also appreciated.

2. Nonetheless, that rationalization--like that of the vanguard pushing a substantive, classical, and old fashioned normative treaty--is less helpful in understanding why the Treaty project starts with the 2nd Pillar corporate responsibility to respect human rights, rather than with the more classically legalized structures of the state duty to protect human rights.  The state duty is itself the essence of the project of legalization, at the national and international level.  The state duty ought to serve as the ultimate source and reflection of conventionally legitimate power expressed through law as well as the exemplar of rule of law at the domestic and international level. That, at any rate is suggested by the UNGP themselves.  And yet legal rationalization, much less coherent legalization, around the state duty is nowhere to be found in the terrains of treaty ambitions. Nor might it be found elsewhere, as states  appear eager to distract from the failures of coordinated legalization of their own 1st Pillar duties, for example through a treaty mechanism. Instead stakeholders are meant to be satisfied with the wholly unsatisfying process of "National Action Plans" while legalization (all for the excellent reasons set out in the essay) are focused not on the state but beyond it. 

3. It is in this sense that the essay makes a powerful case for the legal hardening process in business and human rights. Yet, though the rational for hardening might be plausibly applied to the 2nd Pillar corporate responsibility; the essay makes a more compelling case  for a treaty process that hardens the 1st Pillar state duty to protect human rights. In the process the essay implies the futility of the National Action Plan process. Refocusing the treaty project on the 1st Pillar, whether in the form either of a substantive or framework approach, then, might provide a sounder basis for the hardening of the compliance based responsibilities of corporations under the 2nd Pillar. To start from the corporate responsibility rather than from (or through) the state duty makes the process of hardening law anarchic: anarchic in the sense that in the absence of a normative center there is no coherence for the rationalization of corporate responsibility across states.  That appears to be the underlying assumption of the essay; and it is a good one. Its approach to the framework process necessarily posits a hardening of the architecture of state duty as a predicate to the elaboration of compliance oriented corporate responsibility now overseen by the state through law. In this way, as the essay suggests, "given its potential inherent flexibility, a framework convention could serve as regulatory umbrella with the force of a treaty building on progressive implementation of the UNGPs, being an effective hard law instrument with soft law content, transcending the binary of a hard vs. soft law dichotomy."