Monday, June 20, 2022

Part 1Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Introducing the Symposium


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 1 we consider the co-editors' excellent introduction: Justine Batura, Anna Sophia Tiedeke & Michael Riegner, Framing Business & Human Rights?: Introducing the Symposium on a Framework Agreement as an Alternative Regulatory Proposal, Völkerrechtsblog, 20.06.2022, doi: 10.17176/20220620-153101-0 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


Business and human rights (BHR), as an emerging field of modern law and legal research, is at an inflection point. On the one hand, its most prominent set of norms, the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), are widely accepted by leading institutions worldwide and recognised as having contributed to progress in this field. On the other hand, with a focus on remediating transnational corporate human rights abuses, governments and civil society organisations (CSO) are currently drafting a treaty within an Open-Ended Intergovernmental Working Group (OEIGWG).

This negotiation process within the UN was established in 2014 and holds a mandate from the UN Human Rights Council ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’ (UN HRC. Res. 26/9). Throughout its seven sessions, the OEIWGW has sought to consider the ‘content, scope, nature and form of the future international instrument’ and negotiated draft texts, the most recent being the Third Revised Draft. While the negotiation process was widely welcomed by CSOs, the mandate and proposed drafts were met with diplomatic opposition, particularly by Western industrialised States. It is against this backdrop that the first-ever joining of the U.S. delegation to the OEIGWG meetings in 2022 was received with much interest. While reiterating its opposition to the treaty in its current draft, the Biden administration expressed openness to exploring alternative routes to the current OEIGWG draft, including explicitly “a legally binding framework agreement” that would build on the UNGPs.

Framework agreements are a particular 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. While the idea of opting for a framework-designed approach for the BHR treaty had been considered by the OEIGWG and discussed by academic experts – including a formulated draft text by a leading scholar from 2020, the recent US proposition gave it a whole new impetus. Perceived by some as a distraction from existing efforts to create a binding treaty in the field, others regard the idea for a framework convention as offering a (more) promising and realistic route to improve the protection of human rights globally.

With this introductory note, we are thrilled to present our Symposium in cooperation with World Comparative Law (WCL). The aim of this Symposium is to discuss the ongoing OEIGWG process and to dare a curious examination of a possible framework convention as an alternative approach to regulating business in the field of human rights. It intends to explore regulatory potentials, challenges, benefits, and downsides of a conventional treaty (as currently proposed by the OEIGWG) and a framework-style convention (as recently suggested by the U.S. delegation). With this selection of contributions with a broad range of perspectives, we hope to open the debate to a wider public and enable States to make sound choices.

Giulia Botta kicks off our Symposium. Taking stock of the first UNGPs decade, she outlines the need for more policy coherence and for a mandatory international standard. Giulia Botta explores the potential opportunities and possible structure of a BHR framework convention and helps us navigate the intricacies of the BHR treaty processes.

Jonathan Klaaren believes that there is a necessity to acknowledge the short arm of the law and the long arm of economics. In his blog post, he explains why the fast-growing and distinctively African variety of competition regulation is well-suited for implementation complementing BHR framework agreements, strengthening the argument for their adoption.

Lucas Roorda approaches the BHR treaty drafting process from the perspective of private international law, focusing on the aspect of jurisdiction. He argues that the rule-based approach of the current OEIGWG draft, aiming at harmonisation, may create more problems than it resolves. By consequence, he suggests reframing the current OEIGWG draft as a framework agreement and including an explicit commitment to additional protocols addressing specific barriers to remedy.

Claire Methven O’Brien, building on previous work, advocates for a framework convention, that should be broad in scope, flexible and responsive. Against the backdrop of evolving approaches to regulating corporate human rights due diligence, and recent developments in the domain of ‘Environment Social and Governance’ (ESG) investment, she strives to demonstrate that norms and techniques of BHR regulation remain emergent and unstable. Consequently, she identifies a risk of obsolescence, when opting for a prescriptive international scheme.

Tara Van Ho argues that the USA is engaged in counter-diplomacy and calls on States to continue negotiating based on the Third OEIGWG Draft. She sketches the primary issues a BHR treaty needs to address, considers the progress that has been made towards meeting these needs within the current draft treaty, and finally indicates how a framework convention would undermine this progress. She suggests that there is little reason to tempt States such as the US back to the negotiating table, as they will not ratify any kind of BHR treaty for reasons that lay with their domestic political and legal system.

Nils Grohmann explores the potential of a possible framework convention in BHR under the aspect of monitoring and enforcement. Drawing on an analysis of the European Framework Convention for the Protection of National Minorities (FCNM) and the core UN human rights treaties, he makes concrete treaty-design suggestions that should be included in a framework convention to guarantee effective oversight.

Flávia do Amaral Vieira highlights that in a world dominated by corporate governance, civil society acts as an important counter to corporate capture, understood as the power connecting States and transnational corporations. She argues that the effort that civil society actors have invested in the OEIGWG process would be rendered futile if there were a shift away from the envisaged conventional treaty to a framework convention.

Larry Catá Backer addresses the challenges that a polycentric regulatory ecology poses for treaty-making. Informed by the analysis of previous initiatives, he identifies the broad contours of the challenges of treaty-making in the area of BHR. He argues that a framework-based approach offers the opportunity to both recognise the need to incorporate the larger architecture of business, human rights, and sustainability, and to develop the structures within which this coordination can be given form.

We are pleased to conclude our introductory remarks with the announcement of a special treat for our readers: We invited two renowned scholars, Surya Deva and Claire Methven O’Brien, who are rather emblematic for different approaches and convictions regarding Business and Human Rights for a written double interview. We are very much looking forward to a lively exchange on opposing positions!

We wish all readers an inspiring read and look forward to comments!

Dear authors, the floor is yours …



 Reflections on the  Völkerrechtsblog Symposium Introductory Essay

Larry Catá Backer

1.  The introduction starts off with a premise, the the young field of business and human rights is at an inflection point. That premise is itself worth interrogation for for its underlying premises and the direction to which one need not be necessarily pointed except as a matter of ideology, and politics. One starts with the imagery of inflection points--commonly defined, when it is not used discursively, as "points where the graph of a function changes concavity (from ∪\cup∪\cup to ∩\cap∩\cap or vice versa)." The intent is clear enough--a trajectory going in one direction is now bent to another.  That bending is conscious; it is deliberate; it is not a natural occurrence.  It is, in effect, the efforts of a "leading forces" vanguard to wrest from "natural" processes the control of the direction of collective consensus and to shift it (for all the best reasons of course) from one direction to another.  We start, then, from a Leninist origin point--that leading social forces can or must tale control of the trajectories of the movement of historical processes and help guide them from one historical era to another with the purpose of ultimately realizing a very specific objective. 

2. Yet the identification of inflection is itself ambiguous.  Was that inflection realized with the endorsement of the UN Guiding Principles for Business and Human Rights in 2011; or was that merely the last gasp of a fading era, a necessary gasp of a dying era overseen by an equally dissipating vanguard near the end of their useful lives? If, indeed, the UNGP was merely the signal of inflection, the formal embrace of the possibility of a change in direction, but one realized  from that point forward, then in what direction (and at whose instigation) is that concavity to be to be changed? And where one deals in three dimensional space--that change in concavity may signal simultaneous changes in direction and depth? The problem, then, beyond the discursive trope of inflection, is that of vanguard.  And the problem of the vanguard itself touches on the imaginaries--the ideologies, premises, taboos, authenticities, and limits, of the analytics within which it is possible to define the authoritative field within which business and human rights measures might be considered. not on the substance of business and human rights regulation. The subject of the Symposium, then, is primarily one about the vanguard. That contest over the authority of vanguards--of split and the fighting between business and human rights Bolsheviks and Mensheviks--is as much about securing the authoritative role as the leading forces as it is about the expression of that authority.  The battlefield of this contest of ideology and authority is specific--it finds expression in the specific context of economic activity regulation through the lens of human rights (and sustainability).  

3. Within that specific context, then, the issue revolves around validity of inflection points and inflection choices.  In that context storytelling becomes a way of framing inflection as a function of the values of the words and imagery used in relating the story of the great battle, in this case between what are described as the two great heirs of a UNGP project quickly disappearing into myth from history. To describe that history as a progress from UNGP to OEIWGW treaty making task is to suggest that opposition to the later is itself reactionary and thwarts the fundamental legitimating role of the vanguard seeking to bring a treaty to life.  These are semiotic inflection points that tend to blend into the background but which stage manage the context in unconscious ways. The same applies for a version of that history that sees in the OEIWGW process a reactionary effort to undermine the direction changing victory of the UNGP endorsement itself. How one tells the story, then, reveals both thrust and ideology that are meant to shape not just the discursive foundations of argument, but to veil alternatives within semiotic meaning making that eliminates the possibility of position through a subtle process of definition and horizon shifting. The Symposium itself, through its diverse contributions, may help expose this discusive rift, as much as it may enlighten readers about the value of the two directions for international legalized intervention in the management of economic activity represented by a substantive treaty on the one hand, and a framework instrument on the other.

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