Reflections on Surya Deva's Recent Essay: "Treaty tantrums: Past, present and future of a business and human rights treaty " and the Triumph of the Form of a Framework Convention

 

Pix Credit

  As related by those who keep the website of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIWG):

At its 26th session, on 26 June 2014, the Human Rights Council adopted resolution 26/9 by which it decided “to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The open-ended intergovernmental working group (OEIGWG) has had seven sessions so far. Ahead of the seventh session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a third revised draft legally binding instrument on business activities and human rights. The third revised draft served as the basis for State-led negotiations during the seventh session, which took place from 25 to 29 October 2021. (OEIWG Website)

While there has no doubt been the usual flurry of activity that is hardly ever touched by transparency or respect for the principles of democratic inclusion and consultation among various collectives that style themselves as leading forces in this effort (whether by reference to legal, moral, or societal influence), much of this has not yet surfaced in the conventionally well scripted theater that has marked the working style of the forced march from Resolution 26/9 to the third revised draft legally binding instrument on business activities and human rights. 

It is in that context, and in anticipation of the performance of the friends of the chair and their closed and quite elite exclusive and closed circle of movers and shakers,  that my dear friend and colleague Surya Deva's recently published and excellent essay, 'Treaty tantrums: Past, present and future of a business and human rights treaty,' (2022) 40(3) Netherlands Quarterly of Human Rights 211-221, is worth reading, and reading carefully. The essay objectives are quite clear from its abstract:

This column analyses the current process in the UN Human Rights Council to negotiate an inter- national legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. It does so in the context of two previous attempts at the UN level to adopt binding rules for (multinational) corporations and the continued inability of international soft standards as well as hard rules at the national level in States in ensuring that businesses take their human rights responsibilities seriously. It is argued that an international treaty is desirable as part of a regulatory ecosystem to promote respect of human rights by business enterprises and to strengthen corporate accountability for human rights abuses. While the treaty should build on and complement the existing international soft standards, it should also try to fill some of the regulatory gaps that these standards might not ever be able to fill.(Deva, supra, 211).

It is certainly a time for a more dispassionate analysis of the triumphs and equally great failures that mark the path of the treaty process producing a document that, in its current form, will not survive long enough to be negotiated into law. The historical approach is also brilliant. It is brilliant for exposing the conceptual and ideological fault lines--ones that no one ever really bothered to approach and which were instrumentalized in the service of particular visions of the world and its rationalizing imperatives. Lastly, many of us would share the essay's view that international law can play an important role in rationalizing and coordinating the norms of global production to enhance its legitimacy and effectiveness and to facilitate activity across emerging ideological borders.  One, then, is not so much engaged in what the essay alludes (in the title of the excellent essay) as 'tantrums'--instead what one (finally) understands is that masking ideology in efforts seeking solidarity among distinct approaches to the collective organization of society and its purpose--a coordination grounded in norms (the essence of the project that began with the Universal Declaration of Human Rights) requires the courage to face, acknowledge, and to transparently develop legally binding instruments that bind the community to its shared values and permits a large margin of appreciation to its expression and attainment.   To that end, a framework approach, like the one advanced by Claire Methven O'Brien (eg here), appears better suited to the task.

My brief reflections can thus be divided into three broad areas. First, it briefly considers the current context, second it looks at the way historical determinism and the crafting of history as an inevitable progression is used to advance toward goals preferred by the essay, and third it agrees with the essay's sense of the need for law--in this case a framework model that is the logical bridge builder between the three core ideological systems that must be accommodated if coordinated international rules are to be effective. 

 *       *        *

1. The shrinking scope of the project and its discontents.   Reflecting the views of many, the essay centers the enterprise of managing human economic collective activity on humans in general, and on the structures of international human rights in particular.  And yet both those focus points may well now be obsoleted by the movement to better embed the great human centered project of human rights (including its development aspects) into a broader discourse of sustainability (including bio-diversity and climate effects) one in which the human is not longer at the center of the regulatory project. This is hardly to suggest that a human rights treaty for economic activity ought to be abandoned.  

But it is to suggest two points that underline changes in human society (and political calculus) since 2014 when the project was conceived.  The first is that the treaty remains misdirected as a human rights project.  It speaks more to the failure of the UNGP 1st Pillar (actually its effective abandonment) than it does to the regulation of business activity across borders. To reduce a business and human rights treaty effort to the legalization of the UNGP 2nd Pillar is dangerous business--especially when that legalization is undertaken through states that continue to fail to live up to their 1st Pillar duty.  It might well have been more effective to FIRST legalize the UNGP 1st Pillar around the International Bill of Human Rights, and THEN, to legalize the 2nd Pillar than the backwards way attempted.  I note this even as I acknowledge that this approach was more politically palatable--but it was made politically palatable precisely because it avoided any state duty imposition. With one exception--the practical effect of the treaty is to governmental the private sector and to transform it into a compliance and regulatory administrative organ of states, but subject to international (rather than national ) norms. And the second, already stated--is that one can no longer really effectively speak to human rights in economic activity in a vacuum--any treaty produced on this basis will have to be reconciled (and reworked) to ensure both coordination with (superior) sustainability and climate change rules and reconceptualization of the interpretation of human rights within discourses of sustainability.

Pix Credit

And that brings one back to that sense of time travel backwards marks as well the parameters of the treaty project the essay means to promote and defend. With great appreciation to our forebearers and their struggles--now is no longer the 1930s, nor for that matter is it even 2011; the world of discretely arranged political objects (states) within a system that neatly arranged collectives hierarchically with political collectives at the apex (the state system) has long ago been transformed and augmented; and the centering of development, of human rights, or even of the human in the context of economic activity (which may well drive politics) is no longer certain. Thus to ground the entire project in the increasingly old fashioned view of a human rights based enterprise diminishes both the scope and value of the project. 

Indeed, there is a certain mustiness to the need to cling to the old ways--and to the detritus they left behind as evidence of their power back when they were relevant. That, for some suggests a weakness.  Reactionary arguments tend to  run the risk of  reducing themselves to mere defenses of that which had its run and became extinct.  More potently, it runs the risk of reducing itself to little more than an exercise either in nostalgia, or as an effort (impossible) to turn back the clock and return us to a time, all of whose inhabitants are now dead. That is a pity. One can inherit, one can bear forward the critical insights and desires from our forebearers and seek to move them forward in contextually relevant ways.  But to sip too deeply from the entirely of a lost culture through the effort to resurrect its artifacts is unlikely to end well.

The intent of the essay, was not to venture down the reactionary road--though others might take up its latent invitation.  Instead, the essay very nicely sought to make the case for a progressive project moving forward key elements of what it extracted as the great enduring principles from out of past efforts, augmented by a more refined sense of what, in the current regulatory universe, they might mean to obliterate. It is to that extent that the "lessens from the three high tides" (Deva, supra, pp. 213.216) is both quite useful and revealing, but also risk., general comments about which now follow. 

2. Instrumentalizing history and historical storeytelling in the service of ideology. The historical account masks a much more important conversation that remains veiled.  This a contest among two key but different starting points for any elaboration of principles for the regulation of economic activity.   

A. One starting point is built on the core premise that markets are instruments and economic activities are the expression of and the way one measures the success of the use of that instrument. More importantly, markets are instruments that serve something other than itself. Markets, and the economic activity they rationalize, are expressions of politics undertaken in the service of political norms. The focus, then, is on collective objectives under the leadership of advanced social forces, or directed as public policy by the state (through law at its apex).  Individuals prosper as the collective advances under the direction of its representatives. It follows that economic, social, and cultural rights (centered on the collective management of directed markets and production) are the predicate for the attainment of individual welfare (civil and political rights in economic activity in this case).

 

B The other starting point is built on the core premise that markets serve themselves and that economic production is the expression of choice (even as choice under the constraints of context). The focus is on systemic integrity and fairness to protect the ability of individuals to express their own choices in economic activity.  The political objectives are protect systemic integrity.  But the market decides its own objectives--though objectives are not the way that the sum of activities are conceived.  That is because the ultimate objective is the attainment of perfection (under the core normative principles that define the perfect) in the market itself. The collective prospers as individuals are able to fully, freely, and fairly participate in markets. It follows that civil and political rights (centered on individual expression and choice within markets) are the predicate for authentic vindication of economic, social and cultural rights. 

C. Very generally, Marxist Leninist systems start from the presumption that markets are one instrument, among many through which economic activity may serve the fundamental objective of vanguard politics--the establishment of a communist society. Also very generally, developing states start from the presumption that markets serve as an instrument for the advancement of collective prosperity (as such may be locally defined) and measured or controlled through economic production. In both cases economic production is a component of a larger product--the realization of normative ideals, the advancement of political objectives, and the like. Lastly, and also very generally, liberal democratic systems start from the presumption that the protection of individual choice and fair and equal participation in markets (as platforms for the production and consumption of things) and that economic production must be protected against distortion by the abuse of market power. These, then, suggest starting points producing a grid within which states develop their own place, adapting the sensibilities of Marxist-Leninist, development, and liberal democratic systems to suit local conditions. 

Pix Credit

D. The essay's historical account, then, presumes an organic and Manichean struggle from darkness to light and frm ignorance to enlightenment that has been thwarted by the forces of  opposition.  But that sort of storytelling buries its underlying presumptions--that there is one true path, that normative-political struggle pits the leading social forces against reactionaries and exploiters, and that the cleansing fires of transformation are necessary to burn down the structures of illegitimate formative frameworks and operation, and put in its pace something that better reflects a new narrative and its normative framework. 

 

E. That is fair.  But it is also a strategically retold history in the service of political objectives.  The story, as I have suggested here, can be told in a different way--that the great struggles of the 1970s through the (mercifully swift) termination of the Norms project was one that was part of a larger conversation (for the longer version see HERE). That was a story about the character and objectives of economic globalization. At issue was the way that the oppositional core starting premises (collective versus individual; objectives based versus system perfection, etc.) ought to be applied to embed evolving norms about expected behaviors in economic production. Those evolving norms, in turn, also affected the language of the debates (and the costs of breaching them)--first understood through the language of development and anti-colonialism, then through the language of human rights, and now through the language and norms of sustainability. The movement from an international corporate code to the Norms and beyond, then, was the legal manifestation of the great normative battles of the end of the last century and the beginning of this century.  To that extent, the essay's vision is a resurrectionist one (which is shared strongly by many many people). 

3. Trantrums in the service of saving what one can. The essay ends with a marvelous description of the essence of the survival of the LBI process. And it has survived. But to what ends? Certainly to the ends of producing an international binding instrument in its present form grows dimmer. It is in this section that the essay does an excellent job of exposing those ideological and transformative principles worth saving--and thus the reasons for the drafting of this instrument in the peculiar way in which the relevant communities went about that business. 

A. First, the Treaty had not so deeply buried within it a core set of premises that would substantially challenge and transform the basis for economic globalization as it has been structured over the last generations. It legalizes regimes based on suspicions of markets, a rejection of the notion of economic populism in favor of collectivization directed by some sort of superior body (the vanguard, the state, etc.). It substitutes managerialism for risk taking--effectively rejecting the inherent innovation inducing notions of risk taking-rewards at the core of the current system. To that end the principle of "prevent-mitigate-remedy" is broadened from an operational principle to a normative one.  Lastly it quite boldly rejects the legitimacy of the principle of profit as an ends of economic activity (that is of the notion that returns ought to exceed expenditures and that those returns ought to be directed to a privileged class of stakeholder). Buried in that rejection is an embrace of the principle that economic activity serves politics. With that, notions of markets (price markets, labor markets, financing markets etc.) fall away in favor of regulatory approaches--fair wages (directed by the state, etc., pricing controls, and the like.

Fair enough; and fair game. That substantially transforms the treaty project from one that legalizes the UNGP 2nd Pillar, to one that is a vehicle for the mandatory transformation of the economic order. Here the essay's historical determinism reveals its strategic end game. Also fair enough; but one that necessarily invites very very strong pushback.

Pix Credit

B. From there it is a simple matter to figure out how might be able to salvage core long term objectives, realized through popularized short term implementation strategies as public law (Deva, supra, pp. 216 et seq.). The first tactic is one of form.  An excellent argument is crafted that suggests an alignment between the Treaty project's broad technical aims (to legalize Pillar 2) and the intent of key stakeholders in the process of UNGP endorsement. The second is to adopt a gradualist approach with some room for at least temporary flexibility.  It very much reminds one of Lenin's New Economic Policy undertaken under the harsh conditions of a war that the Bolsheviks might well have lost. That was made explicit in the essay's description of the Treaty draft insinuations and hinting about direct corporate obligations under the Treaty as drafted (Deva, supra, p.218-219). The third was by employing a principle of absorption rather than developing a more straightforward hierarchy of law--this was especially apparent in the way that trade treaties were dealt with as an impediment to the supremacy of human rights as the center of economic activity.

 

C. The triumph of a framework Treaty. All of this leads to what is likely the most curious but important aspect of the essay--the concession that the draft Treaty process itself got things wrong and that it could be redone as a framework convention.  This was an idea that was long rejected by the vanguards shepherding the Treaty through the OEIGW process.  But no longer.  A major concession?  Perhaps. And yet this concession makes sense when one keeps in mind the tactics of gradualism, of form, and of absorption.  Does it really matter what form the Treaty takes as long as it embeds BOTH its fundamental transformative premises AND its implementation mechanism focused on the governmentalization of the private sector under administrative compliance regimes. Or, in the more soothing language of the essay:

The ‘form’ question is subsidiary and should be answered in relation to the primary question, rather than overshadowing the raison d’être for such a treaty. Moreover, the devil is in the details, rather than in the label of the form. A frame- work convention can contain detailed and reasonably specific substantive provisions, including on the obligations of State parties. . . In short, instead of aiming for a catch-all treaty, an incremental approach may be more practicable. What is needed is a middle path between ‘an empty shell’ framework convention and ‘an overly prescriptive’ conventional LBI. This middle path could be achieved through a series of treaties, by following either the conventional treaty or the framework convention approach, negotiated in a sequential manner.(Deva, supra, p. 220)

Bravo.   Concession as Trojan horse. (Deva, supra. p.221).   But also a reminder that form has function.  In the case of the essay it is as a seed pod to carry the great transformative potential built into the 3rd draft forward to a time when it can sprout.  For others, it may be the site within it a more accommodation and coordinated stable legal eco-system can be constructed. It is clear that a framework treaty provides the only viable way forward.  And for many of us, taking our cue from this essay, its primary purpose may be to (1) legalize the 1st Pillar, and augment the normative principles underling much of the law that rationalizes the liberal democratic collective forward toward a better alignment with its values, while giving space to others to develop theirs in solidarity to common normative principles.  As for the rest, I refer to an earlier conversation in Surya Deva and David Bilchitz's must read collection of essays, many of them prophetic: “Principled Pragmatism in the Elaboration of a Comprehensive Treaty on Business and Human Rights” in Surya DEVA and David BILCHITZ, eds., Building a Treaty on Business and Human Rights: Context and Contours, Cambridge University Press, 2017, p. 105 (pre-edited version here).

Where does this discussion leave the treaty movement? In a sense it suggests the fundamental difficulties of coherence in the project of human rights legalization at the international level. It also suggests, again, the difficulties of legalization as a basis for the regulatory governance of societal behaviors in the economic sphere. That difficulty is augmented precisely because all stakeholders have been united in the objective of achieving a treaty, but not on the principles that must be given effect by its provisions (and cagainst which the choice among provision ought to be made).