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It has been quite a treat to sit on the sidelines as the glitterati of the business and human rights communities--its influencers, press organs, shock troops, academics (especially its public intellectuals), think tanks (especially those gambling on relevance among a small circle of enablers), and the units of its discipline inspection shock troops, have, since 2014, engaged in the quite remarkable project of shepherding through the Ottoman hareem that is the United Nations apparatus in Geneva this manifestation of a very specific and quite ideological point of view masquerading as an Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. It is not for nothing that the concept of hareem is derived from the word haram (حَرَام, ḥarām)--either forbidden- because it is evil/sinful or associated with evil/sin, or forbidden to any but those initiated into the rites and community of believers (reservedfor the sacred). For that is precisely what this document has become: a project forbidden in fact to all but its minders.
The document remains, from a certain point of view, as flawed as it was in its first guise as an ironically named "Zero Draft." (For extended critical comments, see,Vol. 14(2; Special Issue): Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally
Binding Instrument to Regulate, in International Human Rights Law, The
Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis). Nothing much has changed since the Zero draft except at the margins.
And yet. This is not to suggest that hearts were not n the right place, or that there is no need for some sort of action. Indeed, the opposite is self-evident. Economic activity ought no longer to be able to avoid the full costs of production; states ught to own up to the hard business of enforcing their own human rights orders with a capable apparatus; civil society ought to be mindful both of its responsibilities and of the dangers of seeking from others what they are incapable of imposing on themselves.
And yet. In the discursive circus that international relations within the Geneva hareem
has become--with its eunuchs, Janissary forces, officials, merchants,
clerics, spies, household staff, and a legion of wannabees--it has been
something of an achievement to bring this document to the point that it
may be offered up for consumption for those with an appetite for this
sort of fare.
But offered up to whom? Certainly the shock troops of its ideological programming will welcome its finalization. To acolytes and preachers, it will serve as the aspiration document that in its own way will represent the voice of the ideal state to which all the rest of us must be taught to aspire. The nomenklatura that now constitute the apparatus of many states will welcome its provisions for the leverage it may provide for the clarification, protection, and aspirations with respect to the only thing that matters--the protection and augmentation of their own little piece of the public regulatory pie. Others may see in it a convenient basis for adhering to a set of provisions that will be effectively unenforceable in a world in which the major states matter far more than others, and in which development, prosperity, and social order (whatever may be printed in pandering press organs) will in the end find a way of bending the narrative embedded in this text, into something far more amenable to the realization of their quite aspirations. That, too, is a good. For there is nothing worse for civil society of a certain mindset than to witness the start of an era in which the the disappearance of the causes that made their business possible threatens their viability. It is here that the hareem shows its true form as haram.
What continues to be noteworthy in this Потемкинские деревни (Potemkin Village) of an effort? Several provisions continue to stand out.
1. The Preamble remains a mine shaft of information about attitudes, agendas, and sometimes a marvelous venture in the art of throwing shade. My personal favorite: "(PP17) Recognizing the contribution and complementary role that the United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework have played in that regard and to advancing respect for human rights in the business activities."
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3. Article 1 (¶1.4). The term business activities are defined to include the business of civil society. That ay me lost on treaty drafters. Yet in the effort to cast as wide a net as possible, it became impossible to avoid the consequence. The careless though aggressive drafting is broad enough to include virtually all service activities of the state, even those with governmental characteristics. It is not saved by the half-hearted effort to list the personal favorite targets of the drafters. This textual conundrum will be a gift that keeps on giving.
4. Definitions (¶1.8 Human rights due diligence). A valiant effort to condense the more nuanced elaboration for markets driven risk analytics at the heart of the UNGP's 2nd Pillar, careful application leaves more questions unasked and unanswered than not. One does appreciate, though, the adoption of core notions of human rights tort in the definition of "remedy" (Article 1.9).
5. Article 6 remains a model of ambiguity cloaked in imprecision of language. ¶6.1 indulgences in the contortions of pragmatic compromise appearing both to limit the scope of obligation to activities of a transnational character while at the same time suggesting that it applies to all business enterprises. ¶6.2's emphasis on prevention in the context of economic activity speaks more the language of the priest or the bureaucrat, than of producers and consumers on goods and services in physical and virtual platforms. It does make clear, however, that the privileging of markets and markets principles would breach treaty duties, and that the core notions of corporate purpose will be either rewritten or written out of domestic law. That is fair; it is a pity that the effort to write markets based economic models out of globalization was undertaken in this sort of stealthy way. The thrust of that objective is further elaborated with the same zeal in Article 8 on so-called legal liability. The object of all of this, of course, is the mandatory human rights due diligence in ¶ 6.4--but one coupled with a governmentalization framework built around the causes of the contemporary era, also set out in § 6.2. This is not writing for the ages but writing short term policy for an administrative agency.
6. It is a pity that the Treaty draft was not written around Article 7. That, at any rate, serves as a quite level headed and useful framework for obliging states to expend resources on building remedial capacity--and systems of accountability around them. Bravo. In contrast, Article 9 is a breathtaking romp through a quite fragmented global ecology of jurisdiction--and a jurisprudence of jurisdiction carefully toed to national constitutional orders (and their founding principles)--all wiped away by the (many) strokes of the keyboard. Three consequences: (1) the provisions will be ignored; (2) State Parties will reserve against the applicability of this (and other) provisions; and/or (3) the provision will be interpreted in ways that will effectively align their application with practices and principles more to the liking of the the state ging to the trouble to do this.
7. And the capstone (¶ 14.3 Consistency with International Law) opens a doorway to quite flexible interpretation. On the one hand it preserves principles of state immunity--insulating states form their own human rights harming incompetence or worse (§ 14.4). On the other hand, it protects states in their actions by the heightened application of principles of sovereign equality and territorial integrity (¶ 14.1) and protections against extraterritorial actions (¶ 14.2).
A pity really. What ought to have been an effort to develop state consensus on their collective duty to protect human rights in the area of (1) normative principles; (2) access to remedy; (3) compensation; and (4) enhancing business risk assessment against all costs of production, has instead become a multi-year extravaganza of flank attacks against the jurisprudential pillars of globalization. That may still be a worthy goal, but one that ought no longer hide behind efforts that are meant to appear to strengthen the ability of holders of human rights to effectively protect themselves against those who control the risks for such breaches--individuals, enterprises, civil society, . . . . and states.
Nonetheless, and for all its technical weakness, the treaty project has been worth pursuing for one important and related cluster of objectives: to control the narrative of human rights regulation in economic activity, to set the parameters in which that discussion is undertaken; and to make legitimate discussions about the value (here used in the sense utility and benefit) of profit, of markets, of bottom up action, and of the relation between human autonomy and guided direction by the collective. This was, in a way, the greatest success of the UNGP process--to provide the baseline framework for talking about issues and framing analysis; and for developing an ecology of values and objectives against pragmatic policy could be assessed.
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All of these are issues worth discussing. The Treaty drafters prestidigitation around them is both disappointing and unworthy of the effort into which so many good people have poured so much effort. To the extent the treaty drafters are able to control or drive that narrative--to provide the language and framing of the issues--they would have succeeded even if the Treaty project itself fails. Around all of this is is worth again recalling that in the myth of the
Potemkin Village, the construction of the illusion served to produce
the intended effect. Illusion may, in this case, be more powerful than
fact, for the reaction it produces in those who embrace it. However, Treaty proponents' failure to more clearly reveal their normative intentions makes that objective much more difficult to attain, and the illusion much more difficult to maintain. In any case, illusion or reality will eventually produce a counter-action against which it is not clear the treaty boosters are prepared. Certainly their predecessors were unprepared even as they though that the New International Economic Order principles was on the cusp of success. That is a lesson the value of which appears to have been cast aside.
The text of the Revised Draft follows: