High Season for the Business and Human Rights Treaty -- the Open-ended Intergovernmental Working Group (OEIGWG) on transnational corporations and other business enterprises with respect to human rights prepares for its 10th Session (October 2024)

 

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 One can only marvel at the energy to which people (natural and legal; individual and collective) are capable of putting into an objective born, to some extent, of spite, or in the case of the work of the Open-ended Intergovernmental Working Group (OEIGWG) on transnational corporations and other business enterprises with respect to human rights, and the vanguard fueling its operations, the zealot's energy in restoring what they are convinced is the appropriate form of collective sanity of the international community by moving it back towards the unfinished work commenced before some of these drivers were born, of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), and before that the Draft United Nations Code of Conduct on Transnational Corporations [1983 version].

The efforts are approaching middle age, by the standards against which such things are sometimes judged--almost a decade since the initiation of the process of undoing the grave error that was represented by the UNGP project and its deviation from the orthodoxy of public sector primacy, the imperium of 19th century law models (appropriately patched up to serve some purpose in the 21st century) and restore the world (or at least their world) to the sanity of the Norms project now written into some sort of international instrument. This description is not a criticism--it is merely the articulation of the observation that progress is ideological, and that ideological battles represent little more than the turning of the wheel for entrenched bureaucracies and elites. They, like the lifeworlds embedded in the ideologies form which the virtues and values of their realities are constructed and from out of which they judge the world around them, are little more than necessary objects in a much larger dialectic around which social collectives manage the boundaries of principles and values for the constitution of social relations (individual and collective) and the activities through which value is recognized, measured, and undertaken.

Longevity has proven to be a positive value for this treaty project.  Once seen as a sadly crude effort to revive the odd post-colonial rhetoric of the 1970s, its methods and objectives are more closely aligning with trajectories of changes in the management of social collective (again around a wheel of change): (1) the decay of political bodies and the relative growth in power of the administrative apparatus of large institutional actors (public and private); (2) the transformation of those administrative apparatus from managerial to techno bureaucracies, functionally differentiated among different activity fields; (3) the increasing suspicion of individual autonomy and decision making relatively (though relatively can be a broad or narrow space) free from a substantial amount of guidance and direction from higher forms of collective authority; (4) the embrace of notions that the highest purpose of mass collectives is to advance public purpose; (5) the deepening embrace of the premise that that state (and ts operating language--law) as some sort of collective representative and incarnation of the individual collective and exercising political authority, is the highest source of public purpose; (6) that this public purpose must be lead and guided through its techno-administrative organs; and (7) that this structuring of intra-systemic framework of social relations may be managed through the modalities of quality control--data based measurement against the ideal that public policy represents. 

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The EU Corporate Sustainability Due Diligence Directive provides a quite interesting manifestation of these trajectories--though its operational manifestation has yet to be realized. But at this stage that is less important than getting the narrative right, and aligning it with a set of ideological premises that, though not subject to the vagaries of popular politics, represents the consensus movement of those people, forces, and vanguards who count. It, like the efforts of OEIGWG and those collectives of eminent vanguard elements that came before them, continue, studiously, to seek the legalization of the market and its embedding within the construction of a collective order in which human rights (selected sometimes), including the effects of environmental degradation on such rights, without changing the scope of the obligations of states in their domestic legal orders or in their relationship to international law and norms as a matter of a law that  can be sourced internationally and applied autonomously to non-state human collectives. And in the process, it creates a system of human rights imperialism through which the vanguard can effectively project its vision from core political collectives to others. That works, of course. And it is a plausible basis for ordering social relations--as plausible as any. Yet, like the others, it appears to start at the end of a political discussion that appears not to have taken place--on the nature and authority of values to which a political community (not its vanguard) might discuss and embrace. Yet that is also plausible.  It was implicit in the religious notion of the prophet or designee of a divine source; it is explicit in the constitution of contemporary Leninist philosophy, and in the framing of modern techno-bureaucratic leadership structures.

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And thus back to the OEIGWG and its continuing trek to something that finally will sate the rage that came with the abandonment of the ideologies and modalities of the Norms project. In preparation for its 10th Session, the OEIGWG have announced the current iteration of the carefully orchestrated performance of consultation and movement toward the  inevitable end of the project and its presentation of a treaty draft to states. Its "Proposed Roadmap Toward the 10th Session of the OEIGWG" (March 2024) and the Notice of Consultation follow (on the performative aspects of this form of engagement, see here, here, here, here, here, here, here, here, and here.

These follow below. Like many, I look forward to the end of the beginning of this International Instrument for the Regulation of Business and Human Rights. The politics of managing that final draft toward its ultimate goal will bring into sharper focus the clashes of ideologies, values, perspectives--especially as they touch on development, human rights, sustainability, and their intersections. But most important, it may start a very needed conversation--hopefully open and transparent--about the nature of individual autonomy, the extent of the authority of the state to manage that, and the role of economic activity within that broader discussion.