Stumbling to the Finish Line--The Friends of the Chair, the Upcoming 8th Session of the open-ended intergovernmental working group (OEIGWG), and the Fate of this Iteration of a Business and Human Rights Treaty

 

Pix Credit HERE

 

The movement towards the production of some sort of draft instrument representing an attempt to put in writing some sort of proto-treaty for business and human rights appears to have reached an interesting point.  As will be recalled

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 (see history of the process below). The eighth session of the OEIGWG will take place from 24 to 28 October 2022. (OEIWG Webpage)

The process was meant to be both tightly managed to ensure the appropriate blending of preferred voices, and yet democratic and consultative in the sense that any odd person with some sort of idea they were willing to share might be able to "speak her truth", though without a guarantee that anyone would be listening--anyone of consequence that is.  

The modalities of this shepherding was not the comprehensive approach of Marxist Leninist Whole Process Democracy, but rather the well worn mechanisms of "friends of the chair" capos instructed to arrange for an orderly performance of consultation which could then be massaged into a summary message transmitted to those with the power to choose the draft text (and defend it). The style was more that of Caribbean Marxist consultation pioneered by Cuba, than anything else (modalities discussed here). 

Still, when well organized it can work well enough (see here for an interesting reflection). . . it certainly has been well applied before. And it can work reasonably well where it is clear that democratic consultation is limited to the agendas of those who manage the process.  Consequently the device is an excellent tool for vanguard driven organizations--whether they are corporations, international organizations, or political vanguards organized as a party in power.  Nonetheless, transparency suggests, and courtesy requires, that such processes be clear about where one draws the line between democracy (consultation) and dictatorship (control of fundamental approaches and principles along with objectives).

Nonetheless, it seems that things have changed for the model in the process of crafting this business and human rights instrument.  In a letter to no one in particular, the driving mission of the OEIGWG process explained the difficulty in this way:

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Unfortunately, despite all efforts made by the Chair-Rapporteur between February and July to forma  Friends of the Chair group reflecting a balanced regional representation of the five UN regional groups (Africa, Asia/Pacific, Latin America, WEOG, and Eastern Europe), it was not possible to confrm the participation of at leats one representative of one of the regional groups.  For that reason, it has not been possible to convene a meeting of the group. (Letter from Amb. Emilio Izquierdo, OEIGWG Chair Rapporteur, 7 September 2022)

As a consequence there has been no movement in the further development of the treaty draft from its 3rd version widely circulated (and criticized) from last year. What will be offered instead will be what are characterized as informal contributions from the Chair to revise certain provisions.  These were likely the product of much reflection among the apparatus (public, private and academic) of the inner circles of the Friends of the Chair made ready during the time leading to the 8th Session.  Not a model of transparency and inclusion, but certainly one of formal consultation among a preferred group of privileged participants. 

Additionally, efforts will be made to get the formally constituted friends (Azerbaijan, France, Indonesia, Portugal and Uruguay) "to discuss the way forward and ask them to organize meetings among the countries of their respective regions to encourage and support active participation of all States during the 8th session." (Letter, supra). One ust have a show--and for that one needs at least the appearance of involvement as a sort of approval by showing up method of democratic deliberation.

There comes a point when ignoring critical voices becomes a danger to a project, and that the price of ideological purity and the realization of a comprehensive vision must be reconceived if one is to salvage at least some progress toward more radical goals. Or one can understand the process as merely a podium on which a discursive martyrdom is viewed as having substantially valuable effects (discussed as a possibility here).

Of course, it is hard to get into the minds of the players here--states, NGOs, other institutional actors, and academics/consultants. They may not even know themselves.  And sometimes it is hard to separate the personal from the task. And the stalling of the movement toward the articulation of the current vision embedded in the 3rd Draft combined with the movement toward a reconception along the lines of a framework treaty with more wiggle room and a different vision of the role of markets and regulation in economic production, has complicated matters.

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Still, it is curious now to note that the friends of the chair process through which the business and human rights treaty process has been so well managed since its start after 2014 may now require a bit a self reflection--and perhaps change--change already signaled unofficially (seeReflections on Surya Deva's Recent Essay: "Treaty tantrums: Past, present and future of a business and human rights treaty "). What it means for the Treaty process remains to be seen.  It is possible that the object is to stall whiel some sort of compromise is cobbled together among the group of "friends" to preserve their vision (and text) more or less intact.  Or, it may be that the 3rd Draft will be cleaned up a bit and offered up as the baseline for negotiation--with the possibility that it will (like the project--sadly) die on the vine.  Or it may suggest that something more fundamental may be happening.  That is unlikely though.  At this point, fundamental redirection is likely to come from outside--the internal group is far too deeply committed to  be the agents of change. 

In any case, for students of treaty making, and of endogenous democracy (and its discontents) in the process of international law and norm making, the perambulations of the treaty process and its stewardship by OEIGWG. Perhaps a moment of truth. . . . or a replay of the bathos that have marked these efforts since the 1970s. 

The text of the (Letter from Amb. Emilio Izquierdo, OEIGWG Chair Rapporteur, 7 September 2022 follows.