I was delighted to have been invited to present remarks at the Workshop sponsored by the European Society of International Law International Business and Human Rights Interest Group. The Workshop--"IN/EX-clusiveness Through the Lens of International Business and Human Rights"--will be held on 1 September 2022. My thanks to the marvelous organizers: Belen Olmos Giupponi, Emanuela Orlando, and Mara Tignino (for more information see here).
My presentation is entitled "The in/exclusiveness of law soft law instruments in international business and human rights (IBHR): Form and Function in the UN Guiding Principles for Business and Human Rights and the Framework Principles on Human Rights and the Environment." The summary attempts to capture the flavor of the presentation:
SUMMARY: At the core of any conversation about the in/ex-clusivity of law lies an older and more dynamic urtext debate focusing on the relationship between what the medieval world understood as gubernaculum and jurisdictio. These, in turn, reflect the current debate about the forms and conceptual basis of the constitutionalization of economic production through the normative frameworks of human rights, development, and environmental rights. The former references the extent of the action-authority of a government. The later describes the legitimating normative borders of such acts. This division frames current debates around the in/ex-clusion of actors, norms, or causes, from governance principles (jurisditio), or from the administrative mechanisms for its realization (gubernaculum). That debate applies with equal force in the constitution and operation of the international legal-regulatory field and the constitution of its administrative organs. It is central to consideration of the interplay between international soft-law systems (jurisditio) and the private-public institutional operational mechanisms (gubernaculum) through compliance and accountability principles. This proposal considers the way that in/ex-clusiveness manifests both in the constitution of and within two important soft law regimes. One, the UN Guiding Principles for Business and Human Rights (2011) creates structures of in/ex-clusion. Directed to all actors (inclusive gubernacula) it builds a framework for in/ex-clusion dependent on the public or private character of actor and the economic activity but tied together by a coordinating normative rule based on international law-norms (jurisditio). Likewise, the Framework Principles on Human Rights and the Environment (2018) is founded on traditional principles of exclusivity. Directed to states, it seeks to build structures of inclusivity (with respect to its jurisdictio) articulated through mechanisms of exclusivity (gubernaculum). Where in the UNGP system gubernaculum is subordinate to jurisditio, the opposite appears to be the case in the Framework Principles. Insights are then drawn from these two models.
The long form text of my remarks along with the PPT prepared for the presentation are reproduced below. Comments and engagement always welcome. The Remarks may be downloaded here. The PPTs may be downloaded here.