The Show Must Go On: "Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights: Update and invitation for written inputs"

 

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I have been enjoying the staging of the theater piece that has been the movement toward the drafting of what will be something like a treaty on or for business and human rights. Much focus has been on the  three iterations of something that was effectively set in stone in its Zero Draft (my critical comments here)--ones effectively controlled by an integrated alliance of individuals and collectives certain that their vision authentically reflects the inevitable position of the leading forces of society, the articulation of which is their right and duty. That is fair--and politics. More focus should be placed on the mechanics of consultation--the more important process of appearing to invite people to the table for the purpose of making them complicit in the substantive provisions of the project.  That also is fair--and a legitimacy marker of both liberal democratic and Marxist-Leninist states. 

And yet, there is irony here. An important objective of this treaty making exercise is to extend the legalization of the concept of accountability. Accountability, though, ought to be at the heart of the administrative project of institutionalized politics as well. That is all the more so with respect to efforts that are themselves accountability driven. At the heart of this treaty making exercise is  its legitimacy, grounded in core human rights notions of democratic inclusion. That democratic impulse is measured by a robust, legitimate, and effective process of consultation. Accountability measures, however, are almost entirely absent from the process the purpose of which is to consider and legalize accountability measures for human rights harms. At some point it would be interesting to see the sorts of accountability mechanisms that are the hallmark of the so-called treaty applied as well to the processes of treaty making. But there s no accountability here--only the constriction of accountability mechanisms that apply to others. And that makes politics even more fascinating for the way in which it continues to draw a line that separates its processes from those it seeks to control. 

It s in that light that one might, with great enthusiasm, embrace the current processes of inclusion that were recently again invoked in this call for inputs on the current state of the Draft Treaty. The process appears to be close to exhaustion; and the request is effectively for technical comments. Nonetheless, the process of consultation, for all its theatrical and democratic inclusion washing context, is still worth engagement.  There are two reasons. The first is that consultation processes are worth preserving if only to make them better in the future. The second is that accountability can only come to these processes in the light of data--data about the relationship between consultation and its effects.  The days when consultation is merely window dressing ought to come to a close, and the day when one can effectively measure and understand consultation in democratic society is long overdue. To that end, a better sense of the actual practice of consultation and measures for the way in which it is received would serve as a first step. Another would be to begin to impose requirements on responding to all inputs when received so that everyone would know both the the input was read and the reasons it was accepted, considered or rejected.

The Office of the United Nations High Commissioner for Human Rights presents its compliments to all Permanent and Observer Missions to the United Nations Office in Geneva,
intergovernmental organizations, national human rights institutions, civil society, business
organizations, trade unions, and all other relevant stakeholders and has the honour to inform of
the following:

-- In line with the Chair-Rapporteur’s recommendation in paragraph 25(d) of the report on
the eighth session of the working group (A/HRC/52/41), the Chair-Rapporteur convened
a meeting of the friends of the Chair, reflecting all regions, in February 2023 to discuss
and agree on a workable way forward in relation to the legally binding instrument.
-- At that meeting, the Chair-Rapporteur requested that the friends of the Chair convene and lead intersessional consultations among States to advance work on the draft legally binding instrument, within their respective regional groups. There will be two such consultations per region, between April and mid-June 2023, with the first consultation focusing on Articles 1-7 and the second consultation focusing on Articles 8-14.
-- Following these consultations, the Chair-Rapporteur will convene another meeting of the friends of the Chair before the end of June 2023, to consolidate the outcomes of the intersessional consultations as reported by the friends of the Chair.
-- These outcomes, along with the concrete textual proposals and comments submitted by States during the eighth session, will be used by the Chair to update and consolidate in a single text the draft legally binding instrument, and circulate it by the end of July 2023.
-- The intersessional consultations to be convened by the friends of the Chair will take into account: (1) the work of the working group to date (in particular, all concrete textual suggestions made during the seventh and eighth sessions); and (2) written inputs by stakeholders (as regards substantive improvements to Articles 1-14 of the third revised draft legally binding instrument and the Suggested Chair Proposals).
-- In this regard, and in line with the recommendation in paragraph 25(f) of the report on the eighth session, the Chair-Rapporteur invites all stakeholders entitled to speak at the public sessions of the working group to submit such written inputs, which will be particularly helpful in advancing the discussions to be had at the intersessional consultations, and which will be shared on the working group website. Such inputs should:

o address Articles 1-14 of the draft legally binding instrument;
o be limited to 10 pages;
o clearly indicate which State or organization is making the submission;
o be sent to ohchr-igwg-tncs@un.org by Friday, 31 March 2023.

The Office of the United Nations High Commissioner for Human Rights avails itself of this
opportunity to renew to the Permanent and Observer Missions to the United Nations Office in
Geneva and all other relevant stakeholders the assurance of its highest considerations.

The Report of the 8th Session may be accessed HERE.