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The European Society of International Law (ESIL) is holding its 20th annual Conference next week at the Freie Universität (Boltzmannstr. 3, 14195 Berlin). The conference theme this year is ‘Reconstructing International Law.’
For the last decade, international law has gone through a period of turbulence. In response, it is time to move beyond crisis narratives and adopt a forward-looking approach. For such an undertaking, the year 2025 offers an appropriate context. It will mark the 80th birthday of the United Nations, the institutional centre of the international legal order. At the same time, 2025 is just five years away from 2030 when the future direction of the current blueprint for global social order, the Sustainable Development Goals (SDGs), will need to be decided. (20th annual Conference).
In the context of the 20th ESIL Annual Conference, ESIL Interest Groups are holding pre-conference workshops on Wednesday 10 and Thursday 11 September 2025.
This year the International Business and Human Rights Interest Group will hold its annual workshop with the ESIL conference related theme: Reconstructing International Law: Structural Shifts Under the UN Binding Treaty on Business and Human Rights. The Workshop Overview explains the scope of the theme:
Aligned with the theme of the ESIL Conference, ‘Reconstructing International Law’, this workshop examines the potential of the UN Treaty on Transnational Corporations and Other Business Enterprises with Respect to Human Rights to reshape the relationship between international business and human rights. The treaty seeks to go beyond the voluntary framework of the 2011 UN Guiding Principles on Business and Human Rights by introducing binding corporate accountability mechanisms. This entails changes to the architecture of International Business and Human Rights Law (IBHRL), with potential spillover effects on other branches of international law.
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I was delighted to be participating in this workshop, speaking on the panel "Geopolitical Repositioning and Conceptual Transformations in International Law (The UN Treaty among global powers and shifts in legal thinking).
The title of my remarks is Internationalism in Multiple Tracks: The UN Binding Treaty on Business and Human Rights Between the EU, China, and the U.S. in the 2nd Quarter of the 21st Century. The remarks can be roughly summarized as follows:
Since its creation in 2014, and within the constraints of its Human Rights Council mandate, an “Open-ended intergovernmental working group” (OEIGWG) has sought to finalize the text of an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. Recently the rough consensus that made that mandate and this project plausible appears to be shifting, or fracturing as the political and normative landscape within which it is being completed changes dramatically. This presentation considers the environment in which the OEIGWG’s treaty making project is now operating, and with it, the prospects for the instrument after it is presented to the international community. One starts with the treaty project itself—its mandate and work to date. One then considers the environment in which it must now navigate. For purposes of analysis these may be divided into three broad competing visions for international law and function in the human rights and sustainability of economic activity: (1) techno-bureaucratic (or administrative) compliance internationalism; (2) socialist internationalism; and (3) markets driven sanctions-security internationalist regimes. Each reconstructs international law and ordering in their own image; and each image produces potentially substantial areas of incompatibility around which a treaty project must now navigate if it is to acquire a substance beyond an allegiance to its text. At the same time each would reconstruct the treaty text to suit its own normative approach, the outlines of which serve as the end of the analysis.
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ACCESS REMARKS HERE: BACKER_ESIL_IBHRIREMARKS_v3_2025;
ACCESS PPT HERE: ACCESS PPT HERE: ESIL_2025_IGBHR_BACKER.
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ESIL Interest Group on
International Business and Human Rights
“Reconstructing International Law: Structural Shifts Under the UN Binding
Treaty on Business and Human Rights”
International Business and Human Rights Annual Workshop
20th ESIL Annual Conference
11 September 2025, Berlin, Germany
Presentation Proposal Submission
Remarks: Internationalism in Multiple Tracks: The UN Binding Treaty on Business and Human Rights Between the EU, China, and the U.S. in the 2nd Quarter of the 21st Century
Larry Catá Backer (白 轲)
W. Richard and Mary Eshelman Faculty Scholar; Professor of Law and International Affairs
Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802
1.814.863.3640 (direct) || lcb11@psu.edu
Abstract: Since its creation in 2014, and within the constraints of its Human Rights Council mandate, an “Open-ended intergovernmental working group” (OEIGWG) has sought to finalize the text of an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. Recently the rough consensus that made that mandate and this project plausible appears to be shifting, or fracturing as the political and normative landscape within which it is being completed changes dramatically. This presentation considers the environment in which the OEIGWG’s treaty making project is now operating, and with it, the prospects for the instrument after it is presented to the international community. One starts with the treaty project itself—its mandate and work to date. One then considers the environment in which it must now navigate. For purposes of analysis these may be divided into three broad competing visions for international law and function in the human rights and sustainability of economic activity: (1) techno-bureaucratic (or administrative) compliance internationalism; (2) socialist internationalism; and (3) markets driven sanctions-security internationalist regimes. Each reconstructs international law and ordering in their own image; and each image produces potentially substantial areas of incompatibility around which a treaty project must now navigate if it is to acquire a substance beyond an allegiance to its text. At the same time each would reconstruct the treaty text to suit its own normative approach, the outlines of which serve as the end of the analysis.
1. Introduction—The Treaty in its Own Context.
The year 2014 promised a decisive step toward a hoped-for realization of that “smart mix of measures” envisioned in Principle 3, UN Guiding Principles for Business and Human Rights (UNGP). Leveraging “principled pragmatism” and adjoining it to structuring principles of institutional compliance, grounded in a cluster of premises evolving around the notion of central role of public policy objectives in shaping economic activities and behaviors, a newly constituted Open-Ended Intergovernmental Working Group (OEIGWG) was mandated by the Human Rights Council to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. The Human Rights Council resolution establishing both the OEIGWG and elaborating its mandate brimmed with the optimism of almost a generation of mostly failures and a modest success in fashioning some sort of normative basis connecting the human rights obligations of States with those of enterprises operating across borders and through sometimes complex networks of arrangements based on ties of ownership, control and expectation in markets.
More than a decade later OEIGWG and their supporters still endeavor to realize this project. The project has progressed from a Zero draft to a current and hopefully near finalized version that the OEIGWG may approve and send off into the marketplace for regulatory products at the international level. The normative heart of the treaty (as set out in its current 2025) draft, centers on adverse impacts (“human rights abuses;” Article 2) of “business activities” (article 3) to “victims” the protection of the rights of which constitutes the core of the objectives of the Treaty draft (Articles 2-5) . At the substantive heart of the Treaty project are current Articles 6 and 8. Article 6 commands States to effectively regulate the activities of all business enterprises under their control in a number of respects. The first is tied to the prevention of human rights harms, the second somehow commands enterprise respect for human rights, the third mandates some form of human rights due diligence, and the fourth mandates legal measures to promote stakeholder engagement in business activities that touch on human rights. Article 7 touches on issues of access to remedy within the administrative or judicial apparatus of States. Article 8 imposes on States the duty to adopt necessary measures to “establish a comprehensive and adequate system of legal liability of legal and natural persons conducting business activities, within their territory, jurisdiction, or otherwise under their control, for human rights abuses that may arise from their business activities or relationships, including those of transnational character.” The key issue, though, is the scope of applicability. The object of regulation is “business activities” undertaken directly by natural and legal persons or connected to those persons by a “business relationship.”
Everything else follows—from the definitions of the terms used to describe this international legal obligation of States, scope of the obligation, to the extent of the binding nature of international law and norms, to the reach of national jurisdiction to hear and resolve disputes, to the standing of the parties, to the reach of the measures to all entities and persons participating in production, supply or value chains. All of these provisions remain subject to debate. And some of them remain delightfully ambiguous—with a particular emphasis on the definition of those economic enterprises that will be subject to the strictures of national law that both transposes international law in their domestic legal orders spiced with national characteristics that may be projected outward along chains of production grounded in relationships that are also as variable as the domestic laws of economic organization, and at its limit subject to judicial remediation on the basis of principles of universal jurisdiction.
But the essence of the treaty provisions are clear enough. These include the mandatory application of both international law and norms; the former as a mandatory obligation of States, the latter as an expectation of behavior for everyone and everything. That is the essence of the mechanics of global convergence through a mechanics lubricated by law and norms, generated through the architecture of internal institutions, and made operational through a direct devolution to States and an indirect one to everyone else operationalized through increasingly comprehensive systems of compliance. But what is its point? The old objectives were intensely relevant to a world that had seen old orders and sensibilities, including its construction of international law wiped out in an orgy of blood. Something new was built on the graves of the old. From the initial set of organizing objectives, a world ordering could be rationalized, and other objectives could be layered onto the first. From this cognitive patterning the project of convergence emerged. That convergence was based on the production of unifying norms and law which were made immediate by an increasingly intricate system of interpenetration through the permeability of borders, the disaggregation of economic production across those borders, and the increasingly comprehensive development of its management by interlocking, solidarity building public and private institutional organs of State and private actors filled with well socialized functionaries dedicated to the use of compliance and accountability to deepen the reception of converging norms deep into the domestic legal orders of States. All of this is well known in the global subconscious;. The reciprocal is also true.
At the same time the Treaty remains mired in the sort of debates that a quarter-century ago plagued the failed Norms project, opening the way to the UNGP alternative. In this respect they serve as a sort of historical marker, perhaps a last gasp of the sensibilities and foundational premises around which international law and norms were conceived, rationalized, given a purpose, and arranged within a hierarchy of political power, one with the State at the center, but with the Congress of all States above that for purposes of creating solidarity enhancing webs of normative principles to bind all together under law administered through layers of interlinked functionaries. The debates about the Treaty Project have served as a sort of microcosm not just about its sphere of regulation—but also about the nature and extent of the relationship between the State and economic activity, and the autonomy of private actors. The current draft continues battles over both large concepts and smaller issues that remain unresolved from its Zero Draft genesis. Nonetheless, it will likely emerge in a form substantially capturing the 2014 vision that animated its creation, and reflecting a set of premises about the global order around which there was elite solidarity at the start of the second decade of the 21st Century. And in the face of the emerging challenges to the foundational premises on which treaty efforts like this are grounded, it may also be necessary to consider whether the Treaty effort might serve as a normative gesture activated by the rituals of treaty drafting, the ideas of which may eventually find expression elsewhere and in different form.
The Problem and Its Context.
A decade, however, is a long time; and perhaps even longer when measured by the lifespan of the global order envisioned by and put into practice by the vanguard of victorious allies against the forces of Germany, Japan and their allies after 1945. It was one that appeared to have realized its global convergence aspirations after 1991, but then in the aftermath of the shocks of 11 September 2001 and the financial crisis of 2007, found its core premises challenged or ignored. It also served as the foundational premises on which the task of the OEIGWG was built—one built on some sort of expression of a rules based multilateral order grounded in the normative structures developed in and through international law and norms, perhaps curated most effectively by well-educated and better placed individuals in important social collectives: NGOs, universities, think tanks and the higher officials and bureaucrats in the largest enterprises and in government ministries, all of whom tended to talk to each other, all of whom tended to embrace a similar set or ordering norms, and some of whom had long memories about prior efforts to develop a legal framework for regulating corporations at a supra-national level.
By the time the COVID-19 pandemic quarantined an important segment of the global community, it had become clear even to those who found this distressing and hoped that by minimizing the trajectories they might dissipate, that the legal landscape taken for granted in 2014 had changed dramatically, and the convergence of consensus around a roughly well accepted set of operating premises that fueled the Treaty effort might be fracturing. All of this, then, provides a fascinating space in which to consider the way that, even as international law and norms may be used to re-construct the baseline operating parameters of public legal-political orders, international law and norms may themselves be re-constructed to suit the shifting context of the fields in which it is meant to be applied.
It is in this context that it might be useful to begin to consider the challenges to a system that once, and not long ago, appeared permanent and deeply entrenched. It is also useful to consider its effect on the evolution of international law and the architecture of international systems and the institutions that support it. The Treaty project provides an excellent space in which that can be undertaken. It is within this fractured terrain, a terrain in which consensus of any kind was elusive at best, and at worst, evidence of the incompatibility of emerging perspectives in conflict, that the treaty drafters persisted. That effort is increasing acquiring a distinctive vibe, like the manifestation of a crystallization of a moment in time, near the apogee of a conceptualized global system that, at best, is facing challenges, and at worst, has passed to a new and quite different stage of historical development. To understand how this will affect the Treaty project and its consequences it may be useful first to consider the normative foundations of the treaty project and its current manifestation in treaty draft text. It might then be useful to consider that project against the three dominant approaches to internationalism and its legalities. With what little time remains it may then be possible to sketch consequences for a project that may appear to be textually unified but in actuality provides little more than a platform for the reconstitution of international law in ideologically contextually relevant ways. That trajectory of reconstructing the core premises around which international law is itself understood and manifested is bit an example of a broader and perhaps deeper pattern of re-construction, the structural shifts of which are already affecting European lawmaking in the business and human rights-sustainability field, but also in the constitution, understanding, and deployment of the international institutions generated after 1945, all of which appear to be the subject of a substantial repurposing in the visions now put forward by the United States as its America First Initiative and the People’s Republic of China in its Socialist Internationalism vision built around its Global Governance, Development, Security, and Civilization Initiatives. All of these visions take as their starting point the notion of democracy, or as Chinese theory would put it, that the people are the masters of the country. Each, however, carves a quite different ”path” from mastery to governance, and from the governance of the State to its relation to the community of States.
So, one might ask, is it possible to describe the emerging challenges to the old vision within which the Treaty drafters have been doing their work? Is it possible to consider the way that each will affect responses to the Treaty draft or to the interpretive process and implementation of any treaty that manages to emerge from the OEIGWG process? The answer to the first of these questions is that one can now distinguish among at least three powerful and significant competing visions for international law and function in the human rights and sustainability of economic activity. These are identified as (1) techno-bureaucratic (or administrative) compliance internationalism; (2) socialist internationalism; and (3) markets driven sanctions-security internationalist regimes. The answer to the second is that each will to some extent reshape the Treaty project, less so perhaps with respect to its drafting—that is almost done. But its effects will be felt either with respect to the consideration of the draft Treaty presented by the OEIGWG, or thereafter, assuming that it might be ratified, in the way in which it is interpreted and applied. Let’s look briefly at leach in turn.
3. Competing Re-Imaginings of Internationalism and its Law and Norms.
Each of the emerging visions of international normativity and its structural elements produces a relationship with international law and the international order that is distinct from the others. The outlines of the three competing visions of international law and structure around which the Treaty project proceeds might be briefly summarized this way:
The first might be understood as a European driven project most closely connected to the underlying premises of the OEIGWG project. In some respects it might also have been considered a variant or complementary project, offering a way toward a UNGP “smart mix” that was grounded in an identity of public policy and private enterprise fulfilled through deeply interlinked public/private compliance organs aligned with delegated systems of mandatory measures. It is grounded in the idea that the instrumentalities of social collectives must all serve, in some respect, higher value objectives. These higher value objectives are manifested in politics as the public policy of the State, implemented through all the means by and through which the State may legitimately, if coercively act, in liberal democratic regimes. In the case of Europe, especially, it also suggests a relationship between the State and international institutional organs as they develop and circulate collective international norms the realization of which is delegated to the State. The architecture of the Norwegian Pension Fund Global as a conduit of international norms, filtered through that Kingdom’s own political lens, provides an excellent example. Though there is a wide margin of appreciation, to borrow a term made famous in the jurisprudence of the European Court of Human Rights, it is also accepted that all the instrumentalities of the nation—its people, institutions, processes, and collectives, serve the State as the State serves the public interest manifested through its liberal democratic mechanisms, however conceived. Technology and capacity has made possible the realization of a more intensely efficient state of accountability in which the realization of public policy is delegated, in the economic sphere at least, to private bureaucracies that, intertwined with the public sphere functionaries, can realize a compliance based political-economic model. This effort produced a set of inter-related European regulatory systems that, on the cusp of their fulfillment became embroiled in the challenge of “simplification” regimes in the face of the economic challenges after 2024.
The second represents the evolution of a Marxist-Leninist set of interrelated premises built around a hierarchy of rights balanced against the paramount duty of development within Leninist operational principles and grounded in the context specific application of generalized principles. It, too, is grounded in the fundamental notion that the instrumentalities of private effort ought to serve first the policy objectives desires, and initiatives of the State. The difference is that while the European liberal democratic version is grounded in the premise that such objectives may to some extent be people driven (guided of course by a well-meaning elite), the Marxist-Leninist vision is firmly grounded in a century old elaboration of Leninist ideology. That, in turn posits the need for a vanguard of social forces tasked with the great object of educating and transforming society in ways that help it, in shorter order, to realize the reality of the establishment of a communist society. While Leninist theory may acknowledge that all societies must inevitably progress toward the realization of communism, it also suggests that the process can be made more rational and sped up through the work of the leadership and guidance of a vanguard of leading social and patriotic forces, dedicated to that effort in which the supreme political authority may be vested, and which uses all the resources of the nation toward that ends. To move toward this long term foundational objective, eventually, the CPC and its patriotic front, through the state administrative organs, must engage in a comprehensive project of modernization—of economic activity, of the cultural development of the masses, of engagement abroad, and of social and political development. In this way of understanding things, development is the key element to the organization of international governance. Everything else is understood as a function of and valued against the higher value objectives of development. Not just any development, of course, but development the key trajectories of which are focused on bringing all social forces closer to the realization of communism.
Unlike the first two, the third rejects the organizing premise of the leading role of public bodies in the management of economic activity, The fundamental orientation of this approach has been shaped to some large extent and its contemporary debates have become intensified, in the United States. While it had long been understood loosely under the banner of rules based international ordering, its current trajectories are perhaps better illustrated by President Trump’s America First Initiative. Its foundation is transactional; transactions are its object. Its framework is focused on development, but in this case on the development if private markets protected from interference at a micro level at least from the imposition or distortions of State objectives. States are free to meet their own policy objectives, but there is resistance to using economic organs as privatized administrative organs of the state. International law is in this sense also transactional; its institutions provide a forum for inter-governmental discussion of win-win transactional arrangements but otherwise are meant to protect the sovereign prerogatives of the State, and with it the autonomy, to a great extent, of private markets. Public policy is external to economic activity rather than integrated with it (the European approach) or an instrument of overarching state directed policy (the Marxist-Leninist approach). The international sphere has its uses--protecting systems of private choice grounded in market expectations, and reserving to the State the use of domestic and international law/rules to protect sovereignty, fairness in markets, legal compliance, and sovereignty deployed as a function of national security and operationalized through sanctions (and now tariff) regimes, an approach the manifestation of which has accelerated in the 2nd term of the leadership of President Trump.
For the business and human rights Treaty project, this fracturing presents a new and perhaps unanticipated challenge. The challenge may be described this way: where the Treaty project was originally conceived as aligned with the prevalent ideology of global norms convergence, the fracturing of that project into regional-imperial spheres—and more specifically the maturation of a Chinese and of an American version of an anti-traditional convergence globalist internationalism—may significantly affect the future trajectories of the Treaty project. The result will be one textual document united three distinct approaches to international legal utility expressed in at least three distinct and to some extent incompatible ways. Where there may be one Treaty, there will be a host of issues relating to the manner in which the fundamental treaty principles can be applied across the normative divides of the emerging distinct perspectives of internationalism now emerging.
4. The Consequences of Dissonance: One Text; Four Treaties
Let me end by briefly suggesting the consequences of all of this dissonance—a dissonance that is invisible on the surface bit which permeates the Treaty discussions and more importantly may substantially affect its reception and operationalization. Both the American and Chinese perspectives emphasize sovereignty and the integrity of their domestic legal orders as a function of their political-economic systems. From different ideological starting points, each views international law and institutions less as the constitution of government and more as a platform where States may assemble for the purpose of coordinating their activities and developing strategies for win-win, sometimes unequal, engagements with each other. Each approaches international law as normative expectation, and perhaps sometimes even as an obligation that can appear as well in their respective domestic legal orders, that can shape the relationships among states. They understand international law and norms as rules or policies that may be used instrumentally to further their own interest, and expect that other States will do the same—to the extent of their power and in helping shape those win-win strategies that mark international relations. But neither understand international law as binding in the sense that domestic law is binding, nor do they consider the institutions created through the agreements of States, including the U.N. system, as a government or quasi-governmental organ. Lastly, while both view international rules and norms as important rationalizations for coordination and for the peaceful resolution of disputes among members of the community of States, and may understand the rules as baseline expectations building solidarity, capacity, and collective welfare, each of them approaches these structures from the perspective that it is for the State to apply and interpret those rules, forms and expectations, and that those interpretations must remain true to the fundamental premises of their political-economic model, especially as it is packaged for projection abroad. Thus, the operational framework and of the Chinese Belt & Road and the U.S. America First Initiatives each reflects a reconstruction of internationalism in the images of the conceptual cages of the apex powers in this current historical stages of their respective development; and thus, the projection of these approaches to internationalism into the Treaty project.
One can get a more granular sense of the effect by considering the sometimes sparse comments of the U.S., European States, and China to the current (updated) draft of the Treaty. A critical consequence, on the Chinese side, is the determination to limit application of the Treaty to transnational corporations. Every other form of economic activity would fall outside the scope of the Treaty. At the same time it rejects any standard that would create incentive for projecting national law abroad—for example effects tests. China also considers with suspicion any interference with the standards under which it operates its dispute resolution system, rejecting the imposition of an “effective, prompt, and adequate” standard for remedial mechanisms (Draft §5.1). And, along with the United States, would subject obligations with respect to remedy to the superior legal principles of the State in which it is to be applied (§8.3). Development and sovereign prerogatives to apply its own normative order and values reduces the Treaty to a framework of text into which every state may insert its own normative orders, with a reach that extends only to those economic instruments to cross or breach borders.
The Chinese side sought to include direct references to and emphasize the international architecture for development and the right to development as an apex human right recognized within the Treaty explicitly. At the same time the Chinese expressed a reluctance to list out declarations rather than treaty law in the preambular materials (PP3), though China also objected to references to international human rights law (PP6) or references to human rights that are not internationally recognized (PP10, § 3.3). They also sought to narrow the scope of the provisions to transnational corporations (objecting to a reference to business enterprises) (PP7, PP12, PP14, §1.1, §1.5, § 2, § 3, §6) but stressed the centrality of international cooperation (PP8), a discursive position at the heart of the elaboration of a Chinese socialist internalism. At the same time China sought to substitute the term obligation for responsibility with respect to transnational corporations but to limit the reach of this obligation to those directly linked to their operations (PP12) and to add peasants and rural workers to the list of disproportionally affected workers (PP14). China would remove the definition of adverse human rights impacts (§1.2) and an “effects” standard in the definition of “business activities of a transnational character” (§1.5) and would substantially limit the extent of the responsibility of transnational corporations for acts of others, limiting that responsibility to other entities controlled, managed, or supervised by the transnational corporation (§6.5).
The U.S. side had a leaner approach to the text, perhaps because, under the Trump Presidency it is both unlikely that the United States would sign this sort of Treaty, and in any case would likely implement blocking legislation to prevent its application to its own economic entities. But the United States was also sensitive to issues of legality and sovereignty. Their position, though, might be described as a preference for the articulation of normative standard in the Treaty, but not legal standards (e.g. elimination of the phrase “internationally recognized” before the term human rights in §§4.1, 6.2). The United States was also sensitive to standards that might interfere with the development of their own constitutional jurisprudence—for example with respect to the due process and equal protection rights of victims (§ 4.2). That also applied to judicial pre-judgment remedy (§§ 4.4; 5.4 an irreparable harm standard). The United States would also limit the obligation to regulate to a “take steps” standard—rejecting the imposition of a stronger standard to legislate under international treaty (§§ 6.1, 6.2). With respect to human rights due diligence, the United States would include a textual obligation to “strengthen” rather than “ensure” the practice of HRDD (§6.2(d)) and expressed reservations about any provision that would impose a meaningful participation obligation of stakeholders in the development of regulatory structures (§ 6.2(d)) and mandatory requirements for the protection of human rights defenders (§6.4). Likewise, the United States would soften the “shall” language to a “should” standard on HRDD legally enforceable requirements (§§6.4, 6.5) or a “may” standard (§8.2). They also suggested moving from an “ensure” to a “providing” standard relating to deterrence of reprisal conduct (§7.4; or from ensure to seeking to ensure §§7.4(e), 8.6) and expressed reservations about any treaty provision affecting the relationship of the State to its indigenous peoples (§6.4). The provision of judicial remedies was confined to the standard in the UNGP (§7.1) and insisted on including a provision limiting their obligations to judicial and non-judicial mechanisms only to the extent they are consistent with their domestic legal and administrative systems (§§ 7.2, 7.3, §8.1, §9.1, 9.3). The U.S. also rejected efforts to specify with particularity measures for achieving treaty aims (e.g., § 7.5).
The European position reflects its own internal debates about the Green Deal. More recently that includes issues about the limits of regulatory supervision regimes in international law as a function of its adverse effects on efficiency and competitiveness. On the Treaty draft, the EU has taken the position that it ought to cover all enterprises. There is also an issue about the relevance of the European efforts as a substitute, supplement, or alternative to the Treaty draft. This is particularly importance where the European Green deal is meant to be used to project its normative project outward through the mechanisms of what has come to be known as the Brussels Effect. They would also protect the integrity of both their judicial system and the jurisprudence, supplemented by EU Conventions of systems of remedy and conflicts of law. Lastly, the issue of the
These are not merely the positions of apex powers; it is quite interesting to note that in many respects States seeking to protect their own domestic legal order and the integrity of their own political-economic model appears in suggestions form the Global South. Some States, like Saudi Arabia, seek to use the Treaty as a framework within which they may operate privileging their own laws and values (§4.2(b)), a critically important defensive posture. But others appear to use the provisions to protect their own economic instrumentalities while enhancing their ability to reallocate the risk of liability up the supply chain to the instrumentalities of apex powers. They are engaging in the offensive use of international law to protect their own domestic economic instrumentalities while permitting them to operate under conditions of lower legal risk, which is then shifted to their partners. This strategy is neither right nor wrong in itself—it is business. Nonetheless, this latter position merely reflects the adherence to the older idealization of international law as a superior legal obligation produced by a superior supra national governance structure. It is within these quite contested and inconsistent rationalizations of international law that the Treaty project must produce a draft and perhaps see it to finalization. It is in this sense that international law is being reconstructed and within which any assessment of the possible success of the Treaty project or the likelihood that it will survive without substantial change might be measured.
Where does that leave the Treaty; and where does that leave international law for the moment? The answers are not definitive but the trajectories appear clear. The United States side will likely find in the Treaty another space for the performance of its rejection of the old order premises. Even under the leadership of a traditionally more agreeable political party, the Treaty would be applied only as translated into and through U.S. constitutional conceptions, and built around the emerging human rights and sustainability sanctions mechanisms, with a large dollop of protection of national security and State (techno) secretes. The Chinese side position would be more complex. They are likely to sign onto whatever it is that is produced, not at the OEIGWG stage but thereafter when it is finalized for signature. During that process, slowly the Chinese will seek to seep into the Treaty text, as best they can, to insinuate within it, the kernels and elements of what they can then extract from it as elements of a Chinese Socialist Internationalism applied in the context of economic activity. The European side will remain truest to the underlying premises of international law and its trajectories from out of the 1990s. Buy they, too, will likely seek to bend the Treaty to their own Green Deal vision. Here, though, the dialectics of national, regional and international legalities and their practices may be best aligned, for the moment. The Global South, like the Chinese side, understand the Treaty as a useful tool for redressing what they view as historically skewed power imbalances. They will seek to protect their own local economic instrumentalities, defined strategically and likely in a contextually relevant and mutable way, and then seek to use the treaty in two ways. One would shift risk of business activity up to home state entities; the other would be to shift downward the proportion of the value added along production chains.
Beneath this performative space is an international law platform that is more fragmented, formally, and more willing to tolerate—de jure—fundamental conceptual differences arising from the circumstances of cultures, nations, and places. Sovereign authority ion, through and against that of State collectives is back. But it is back in fragmented form. For the Americans, one protects sovereignty as a means of protecting the authority if autonomous private actors to engage in (and bear the risks of) private economic ordering transactions which, in their longitudinally driven iterative manifestations project in aggregate form the foundational premises and expectations of the system. The protection of the integrity of transactions sits at the apex of the normative pyramid of this approach. For the Chinese sovereignty is also back, but as a means of protecting and protecting, the power of collective action guided and led by a vanguard of leading forces to which political authority is delegated and form which authority over all other aspects of collective life may be bent to the fundamental realization of the goals of a political-economic system. The protection of the integrity of collective development sits at the apex of the normative pyramid of this approach. For both international law resumes a new form inter-governmental character; international institutions become the instruments of that collaboration; and rules become a blending if contract and expectation among the community of States. The Global South understand the value of international law as protection, as a basis for building regional solidarity, and as a means, like tort and contract law, of assigning and shifting risk and defining the scope of liability. The notion of international law as the authoritative expression of international convergence solidarity operationalized through a complex interlinking system of compliance directed from international institutions appears to be losing ground. And the European, they are left as the holders, and once the drivers (at least in the last generation) of the old system of convergence based liberal democratic regulatory supervision based internationalism. But even there the battles over the curation of the fundamental approach of Europe to internationalism (and with it of the role and positioning if international law and international norms) has just gotten started.
5. Concluding Thoughts.
One is not speaking revolution here, either in the approaches to international projects for the production of law or norms. The structures and operations of public international law remain useful. What it does suggest is that the general belief in the objective of convergence may have lost its unchallenged prominence. In its place one encounters coordination, and a devolution of powers of interpretation and application, at least within national borders, to States. At the same time, one might note a shift from global to regional or bilateral international arrangements as the workhorse of international legality and normativity. That, certainly is the phenomenological essence of the Chinese and American Internationalism—one focused on routes and pathways, the other on transactions. Lastly, and perhaps as collateral damage, is the challenge to the project of regulatory supervision, at least as currently conceived in its European variation—the bureaucratization of production, its shift in objectives from economic to public policy goals, and its oversight by coordinating organs of public and private bodies serving the interests of the State through increasingly intricate managerial supervision of production. In Europe that challenge was crystallized in the Draghi Report and the reconsideration of the implementation of the European Green deal in the name of efficiency and competitiveness. In China, the challenge to regulatory supervision is bound up in the elaboration of evolving conceptions of socialist modernization and high-quality production, including the production of regulatory supervision. In the United States the challenge is direct, suggesting a redirection in the nature and scope of regulatory supervision, though not an abandonment of the role of the State as an overall guiding force and curator of markets and market behaviors. What happens next remains unclear; what is clear, however, is that the age of solidarity around older notions of international law and governance may well be passing.
Perhaps there is no better way of understanding the present situation that from the lyrics of the closing song, “What it Sounds Like,” from a currently popular movie, KPop Demon Hunters:
I broke into a million pieces, and I can't go back
But now I'm seeing all the beauty in the broken glass
The scars are part of me, darkness and harmony
My voice without the lies, this is what it sounds like
Why did I cover up the colors stuck inside my head?
I should've let the jagged edges meet the light instead
Show me what's underneath, I'll find your harmony
The song we couldn't write, this is what it sounds like.
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