Claire Methven O'Brien and Daniel Schönfelder, "A Defining Moment for the UN Business and Human Rights Treaty Process" (VerfBlog, 2022/10/26)

 

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It's always nice to note the interest of high end mechanisms operating at the heart of the European heartland of  Mitteleuropa (though of course such terms are hardly used in polite society these days) in the business of human rights embedding, through law (however that is understood), within economic transactions--using as its vessel the contemporary corporation and its functionally related variations. Ir is even nicer when they host an import intervention one of the most under reported and yet vitally important policy issues  of its time--the regulation in international law (though at this point frankly within any legal regime) of the obligations of those natural or juridical persons (including states) with respect to human rights (how ever conceived).

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The intervention by Claire Methven O'Brien and Daniel Schönfelder  in Verfassungsblog (VerfBlog, 2022/10/26), A Defining Moment for the UN Business and Human Rights Treaty Process,  merits serious consideration in a now more than half decade process that has been more notable for its strategic political process authoritarianism, and its embrace of a form of Westernized democratic centralism, than for any sort of inclusive, open, and pragmatic debate/consultation from out of which a workable global consensus, memorialized in an international law instrument might actually be cobbled together. One understands the reason--rituals of purity require avoidance of contamination--and the draft meant to be offered up to the world is meant to distill in all of its glorious purity the quite specific view of a cluster of self-styled vanguard elements increasingly used to having their way in these matter--at least within the quite powerful circle of friends with whom they operate.

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Methven O'Brien and Schönfelder ask the right questions, and point us in a reasonable direction--reasonable given the tenor of the times, and the increasing divergence of the global community's once more solidly constructed consensus around key normative issues at the foundation of both business and human rights. (1) They provide a reasonably pragmatic rationalization for an international instrument, especially as a means of coordinating an increasingly baroque ecology of limited and functionally differentiated national regulatory schemes. (2) They make the case (again--John Ruggie would be pleased) both for the existence and importance of the governance gap the challenge of which provided a animating baseline foe the UN Guiding Principles and its three pillar structure. (3) They note both the process and normative disjunctions between the treat effort today and the realities on the ground around it (though in the process they far too casually downplay the quite deliberate revolutionary objectives barely hidden beneath the loquacious provisions of the current draft). (4) They note points of convergence in the embrace of the sensibilities and practices of compliance, and in the alignment of a fundamentally administrative approach to human activity embedded within compliance and the core risk avoidance principles on which it judges effectiveness--prevention, mitigation. and remedy. They then proffer an olive branch and fashions a gateway. (5) The olive branch takes the form of the the Chair’s latest informal cluster of new textual proposals (my views here and here). These are understood as opening the door to a more flexible, perhaps even framework, approach within which either managed divergence or convergence might be possible within the vessel of a single legal framework. (6) The gateway is the constitution of some sort of technical advisory committee within the friends of the chair mini-secretariat that might provide a face saving cover and through which a technical victory can be declared by all sides.

Bravo. 

There is, of course, an alternative vision.  It is one that would be most unpalatable to many of us who have devoted great efforts to rationalize human right legalities within the process of economic production globally (though why it still does not extend to all collective human activity, and why it is centered on the human rather than on sustainability remain core issues lurking on the sidelines).  It is simply this: bth the process producing the UNGPs (like those of a generation or more ago producing the great schism in international human rights conventions) suggest that any sort of unifying effort is premature, and that the legalization of those efforts in the face of a growing lack of convergence is not just foolish--but amounts to the stripping away of the legitimacy within which the UN system is built and its legalities honored. Unless one acknowledges international institutions as Leninist vanguard organizations, representing the leading social and political forces of the contemporary stage of human development, and unless one also acknowledges that such a vanguard now not just represents but embodies the coercive legalities of the masses for whom it is responsible on on whose behalf it acts, then ramming through an international instrument that reflects the will of that vanguard to be imposed on the masses will serve little purpose but to unmask the structures of power at work and the thinness of the legitimacy of its exercise.  It may also spawn backlash and reaction, and most importantly, perhaps, it will open the door to a more serious conversation about the anti-democratic operations of the international institutions and their relationship to the community of nations. 

Perhaps it is time for such a conversation.  Yet this is hardly the venue. And this is not the time. It is, instead, the time for diversity and the start of the process leading to solidarity through trust building and objectives based management. Perhaps it is also a time for a rules based international order to reaffirm its commitment to rules that reflect democratic deliberation and due regard for cultural, historical and contextual sensitivities. That, in turn, requires a return to common baselines, and a framework within which rules based variation may exercised within the normative and legal orders of democratic states. What the Treaty process suggests is that an age of margins of appreciation may well be best expressed through a framework structure.  That framework may need only provide the vessel within which the outer boundaries of variation can be described. It need only first create a space--a governance platform--within which key stakeholders may develop the deeper interlinakages that may eventually see the need for normative convergence to fall away in favor of objectives based solidarity. That task may be impossible as well--for it would require a release of ego, and of the need for leadership, that few are willing to concede. And it might require as well a better articulation of why and how abstractions like human rights (and its granular manifestations) are and ought to have value (or be valued) in their on right or as against other organizational fundamentals of collective human organization.  Until then, the avoidance of sloppiness and the use of human rights as a fetish and a mask to cover other desires may be too great a temptation to avoid.

The text of the intervention follows. It may be downloaded and accessed from the web pages of Verfassungsbolog. 

The Treaty Project May Not Exceed its Mandate, Must be Consensus Based, and Take into Account the Right to Development and the Protection of a Stable Business Environment: Statement of the Chinese Government Made at the 8th Meeting of the Intergovernmental Working Group on Business and Human Rights Treaty

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中方认为，法律文书谈判应该坚持公平原则，统筹兼顾发展权和其他人权，在切实保障人权、充分保护和救济受害者的同时，也要充分尊重各国司法主权，符合国际公认的法律原则，为跨国企业提供稳定可预期的营商环境。
在法律文书适用范围等核心问题上，各方应严格遵循人权理事会第26/9 号决议的授权，不宜超越授权范围。此外，为确保法律文书得到广泛支持和普遍遵守，法律文书谈判应坚持协商一致，充分尊重各国关切，最大程度凝聚共识。

[ The Chinese side believes that the negotiation of legal instruments should adhere to the principle of fairness, take into account the right to development and other human rights in a comprehensive manner, and fully respect the judicial sovereignty of various countries while effectively safeguarding human rights and adequately protecting and providing relief to victims. Enterprises provide a stable and predictable business environment.
On core issues such as the scope of application of legal instruments, all parties should strictly abide by the mandate of Human Rights Council Resolution 26/9, and should not go beyond the mandate. In addition, in order to ensure that legal instruments are widely supported and generally observed, the negotiation of legal instruments should adhere to consensus, fully respect the concerns of all countries, and build consensus to the greatest extent possible.] (Statement of the Chinese Government Made at the 8th Meeting of the OEIGWG)

Day 1 of the   Open-Ended Intergovernmental Working Group's (OEIGWG) 8th session was reserved for the formalities of opening and statements by participating states and permitted others. As reported by the  High Commissioner for Human Rights Resource Centre (Day 1: Monday 24 October 2022), "Volker Türk, of the importance of a binding treaty at this time. The morning session comprised of statements by member states. In the afternoon, civil society organisations (CSOs), NHRIs, and business and employers' organizations made statements. There was also a panel discussion on the binding treaty and the road ahead."

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This a Treaty process that for reasons of ego, and perhaps of calculation, has served as an example how how badly wrong a process of international agreement  can go when it is effectively captured by a small but powerful group of actors who are intent on producing revolution on the sly, who seek to run over the hard won space for sovereign expression of states long denied that authority, and which effectively obliterated any discussion or opposing points of view in a mad rush to put together what has become an unworkable monument the the  failures of transposing the brightest high ideals into a practical document that is meant to provide guidance to states, and the most humble of global rights holders (e.g., here). There is no shame in this.  But there ought to be transparency.  And there are consequences: in this case the preservation of factional purity thinly veiled by the appearance of robust consultation has preserved the purity of the vision which is embedded in the essentially unreadable text of what passes for an international instrument. In the process they give the impression that the draft of the legally binding instrument they concocted can obliterate traditional notions of sovereignty (especially as exercised by states still wrestling with the legacies of sovereignty disabling colonialism), that they can compost core principles of corporate governance and the ordering of legal personality for non state human collectives like spoiled food, and that they can treat the judicial mechanisms of states as a fungible consumable in the service of whatever it is they mean to do. (e.g., here). 

In the process, and as has become a very bad habit among the nomenklatira that insinuates itself into the working life of the UN's operations in Geneva, it has always been fashionable to condescending ignore the Chinese.  For many their system is opaque, their ideology unmanageable (by them), and in any case, China, for most of the traditional establish is a state in need of socialization into the ways and mores of the international community and its presumptions that have grown comfortable in and around the complex of buildings that present the physical manifestation of its points of view in Geneva. If the United States is the clueless patron, the China is the wild child in need of education, but one that can be ignored in the relentless march to develop a world in which (they believe) both the Americans and the Chinese will bend the knee.  

But China does not share these views (it is not clear at the moment what is oozing out of Washington)  and China is increasingly willing, if in the most polite way, to disabuse those who hold to presumptions and condescension of this sort. The Chinese have made clear that they have developed an internationalism that is not dependent on the approval of outsider, that they have now elaborated a more comprehensive conceptualization of socialist human rights (see here), and that they hold the values of sovereign rights and development at the center of the human rights and sustainability project.

The Opening Statement of the Chinese Mission at the beginning of the 8th OEIGWG Session brings these points home. But they do more than that.

The Chinese opening statement, as politely as possible, appears to make clear that in its current form, the Treaty Project is now dead.  It killed itself (but then martyrdom can be an important element in the human rights long game). Even if the Treaty project lurches forward, it will not find a warm welcome in China or likely in many of its Belt & Road Initiative partners.,  The Treaty fails to engage with the strongly held view that development (whether or not informed by sustainability principles) is a central element of any human rights projection into the management of economic behaviors.  And the Treaty is disrespectful of the sovereign dignity of nationally contextualized judicial systems.   The Treaty fails to aim for "adequate" protection and relief for individuals whose rights have been breached.  More importantly the Treaty fails to address at all a key component of development based human rights--the human right to a stable and predictable business environment.  None of these are or have been addressed.  And the result is a one sided effort that unbalanced will fall.  The coup de grace, though, is potent--as drafted the text of the 3rd draft appears to exceed the mandate under which it was to be developed--and the process  continues to avoid any connection with consensus building efforts.

In this respect the Chinese statement is worth careful consideration.  And it serves as a reminder that failures to develop consensus based broad and inclusive consultation--with a willingness to listen as well as to hear, can doom a project.  The Chair Rapporteur, Emilio Izquierdo (Ecuador) attempted gently to confront the issues and offer a pathway to consensus--but one that led from the present form of the document to something more like a framework arrangement (eg. here).  This was rejected by the alliance of CSOs strongly, and that strong rejection appears to have frightened the functionaries, most of them European, long used to basking in the stroking of these organizations and fearful of causing a (domestically potent) scene. 

The full statement, in the original Chinese and in a crude English translation follow. The lesson is apparent in any language.Statements by other states and additional resources may be accessed here.

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

 

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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.

 

Part 5 Reflections on Völkerrechtsblog Online Symposium: "Framing Business & Human Rights?": Claire Methven O'Brien, 'Bounded Rationality, Metonymy, Humility:Further Arguments for a Framework-Style Business and Human Rights Treaty'

 

It is with great delight that I pass along the announcement of an exciting new Online Symposium. It is  hosted by Völkerrechtsblog and brilliantly co-organized by Justine Batura (Völkerrechtsblog), Anna Sophia Tiedeke (Völkerrechtsblog) and Michael Riegner (University of Erfurt; co-founder of the Völkerrechtsblog), who will feature as guest editor of the Symposium. The Symposium Summary nicely captures the spirit of the event:

With a view to regulating business in the field of human rights, an Open-Ended Intergovernmental Working Group (OEIGWG) has been negotiating an international binding treaty in business and human rights (BHR) since 2014. Confounding the dichotomy of hard and soft law approaches to BHR, the Biden Administration recently expressed openness to a legally binding framework agreement that would build on the UNGPs. Framework agreements are a type of treaty, that establish key objectives and a system of governance but leave details to be determined in the future by an agreed-on mechanism. Perceived by some as a distraction from existing efforts to create a binding treaty in the field, others consider the treaty design choice for a framework agreement as offering a promising and realistic route. In any event, the joining of the US delegation to the OEIGWG has (re-)fuelled long smouldering discussions about the prospects of success of the OEIGWG endeavour and the need to explore alternative avenues, such as opting for the treaty design of a framework agreement. With this symposium, we take a deep dive into exploring a framework convention as an alternative regulatory proposal and examine potentials and challenges from different angles. (Völkerrechtsblog, Symposium, Framing Human Rights? Introductory Note )

Throughout the week starting 20 June 2022, the co-editors will post written contributions on the homepage of the Symposium in the following order:

--Monday: Introduction by co-editors Justine Batura (Twitter: @JustineBatura), Anna Sophia Tiedeke & Michael Riegner (Twitter: @riegnerm)
--Monday, 1 pm: Giulia Botta
--Tuesday, 8 am: Jonathan Klaaren (Twitter: @JonathanKlaaren)
--Tuesday, 1 pm: Lucas Roorda (Twitter: @LRoordaLaw)
--Wednesday, 8 am: Claire Methven O‘Brien (Twitter: @Claire_OB1)
--Wednesday, 1 pm: Tara Van Ho (Twitter: @TaraVanHo)
--Thursday, 8 am: Nils Grohmann
--Thursday, 1 pm: Flávia do Amaral Vieira (Twitter: @eiflavia)
--Friday, 8 am: Larry Catá Backer (Twitter: @BackerLarry)
--Friday, 1 pm: Concluding Interview with Claire Methven O'Brien (Twitter: @Claire_OB1) & Surya Deva (Twitter: @ProfSuryaDeva)

 I was delighted to have been invited to participate.  I will be posting the Symposium contributions here and will also contribute some brief reflections and engagement with each of the excellent and thought provoking contributions.

For this Part 5 we consider the wonderful essay: Claire Methven O'Brien, Bounded Rationality, Metonymy, Humility: Further Arguments for a Framework-Style Business and Human Rights Treaty, Völkerrechtsblog, 22.06.2022, doi: 10.17176/20220622-153107-0; which follows along with my brief reflections. 

 

 Other Essays and Reflections may be accessed here:

Part I Introduction 

Part 2 Giulia Botta 

Part 3 Jonathan Klaaren

Part 4 Lucas Roorda

Part 5 Claire Methven O'Brien 

Part 6 Tara van Ho

Part 7 Nils Grohmann

Part 8 Flávia do Amaral Vieira

Part 9 Larry Catá Backer

Part 10 Interview: Surya Deva and Claire Methven O'Brien

3. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 2 (15 June 2019; The Clash of Empires? Playing With Fire in the Shadow of the Umbrella Movement )

 

 

 

“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  

About the Book: Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the  book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 2: Saturday,15  June 2019; The Clash of Empires? Playing With Fire in the Shadow of the Umbrella Movement pp. 15-28 (Access Free). The imperial projects of the US and China, now more clearly visible as the two power centers decouple and reshape their power relations globally more consciously tied to their respective networks of culture, society, economic activity, and political ideology. The Chapter engages with the marvelous work of my esteemed colleague Jiang Shigong whose own research appears to be developing along similar lines.

The video of the conversation about Chapter 2 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.

A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.

Seventh session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights

 

Pix: The Bride of Frankenstein (1935--Boris Karloff and Elsa Lanchester)

 

‘It was on a dreary night of November that I beheld the accomplishment of my toils. With an anxiety that almost amounted to agony, I collected the instruments of life around me, that I might infuse a spark of being into the lifeless thing that lay at my feet. It was already one in the morning; the rain pattered dismally against the panes, and my candle was nearly burnt out, when, by the glimmer of the half-extinguished light, I saw the dull yellow eye of the creature open; it breathed hard, and a convulsive motion agitated its limbs.’ (M. Shelley, Frankenstein or the Modern Prometheus (Lackington Hugh Harding Mavor & Jones, 1818), ch. 5)

It was with that quote that I began my essay, Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting which eventually appeared as a contribution that that marvelous collection of essays edited by David Bilchitz and Surya Deva, Building a Treaty on Business and Human Rights: Context and Contours (Cambridge University Press, 2017, pp. 105-130; pre publication version HERE).  I suggested there that

the fundamental difficulties of coherence in the project of human rights legalization at the international level.82 It also suggests, again, the difficulties of legalization as a basis for the regulatory governance of societal behaviours in the economic sphere. That difficulty is augmented precisely because all stakeholders have been united in the objective of achieving a treaty, but not on the principles that must be given effect by its provisions (and against which the choice among provision ought to be made).(Ibid).

Well; seven years into the process it is possible to believe (and indeed this is a faith based project more than anything else), that a measure of coherence has been achieved.  That achievement highlights the remarkable process of assembling a community of believers (and flushing the rest) around whom the process of engagement could be managed to produce (at least) the document that expressed (if in somewhat ambiguous and idealized form), the legalized aspirations of the belief community that has worked so hard to find expression for its political principles into a document that aspires to legal effect. 
 

That it does not work as law (but perhaps as an ideological statement certainly) has been expressed  (for a detailed deconstruction, see Bulletin of the Coalition for Peace & Ethics,Volume 14 No. 2 (Special Issue) Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019).

The seventh session of the OEIWGW will take place from 25 – 29 October 2021. The Announcement was posted HERE. The Announcement reads as follows:

Forthcoming: Open consultations on the implementation of resolution 26/9

At the final meeting of its sixth session, the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) took note with appreciation of the recommendations of the Chair-Rapporteur and looked forward to the third revised draft legally binding instrument, the informal consultations, and the programme of work for its seventh session, which will be held from 25 to 29 October 2021, as a follow up to the implementation of the mandate of HRC resolution 26/9.

In that regard and in line with the Chair-Rapporteur's recommendation 43. (e) as contained in the report on the 6^th session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (A/HRC/46/73), the Chair-Rapporteur will hold two open informal consultations with Governments, regional groups, intergovernmental organizations, United Nations mechanisms, civil society and other relevant stakeholders, as one of the basis for the preparation of the third revised draft legally binding instrument. The two planned consultations will take place in accordance with the following details:

• First open informal consultation: Wednesday, 26 May 2021, 10:00-12:00, online (English only)
  Indico link to register: https://indico.un.org/event/35948/
• Second open informal consultation: Friday, 11 June 2021, 10:00-12:00, online (English only)
  Indico link to register: https://indico.un.org/event/35950/

The agenda for the open consultations

Kindly note that registration on Indico will enable the Secretariat to send the link to registered participants.

The two consultations will be a complement to the discussions held during the sixth session of the OEIGWG; the compilation of written statements; the two matrices compiling respectively (1) concrete textual suggestions, modifications, additional language and requests for deletions, as well as expression s of support, concerning the current provisions of the second revised draft legally binding instrument; and (2) general comments and requests of clarifications, in accordance with the Chair-Rapporteur's recommendation 43 (a)–(b); and other related activities undertaken by the Chairmanship in preparation of the seventh session of the OEIGWG.

The compilation of statements, as well as the two matrices mentioned above, can been found on the website of the OEIGWG at: OHCHR | Session6 Sixth session of the open-ended intergovernmental working group on transnational corporations

The participation of other relevant stakeholders in the consultations mentioned above will follow the procedure of the previous sessions of the OEIGWG, without prejudice to any additional information to be posted on the website of the Working Group.

For further enquiries, please send a message to igwg-tncs@ohchr.org.

 All might consider participating in the open consultations to the extent that is permitted.  It is possible that such engagement will be noted or even have effect. But more importantly, it will deepen the process of self engagement with a project that eventually, when it emerges from its safe drafting space, will have to be confronted and supported, challenged, or otherwise engaged. The Agenda for the Inter-sessional open consultations follow below.  Mary Shelly's Frankenstein; or, the Modern Prometheus may be accessed HERE. 

European Parliament Committee on Foreign Affairs Sub-Committee on Human Rights "Exchange of views on recent developments related to an international legally binding instrument on business and human rights"

  

 On 28 January 2021, the European Parliament Committee on Foreign Affairs Sub-Committee on Human Rights hosted an event: "Exchange of views on recent developments related to an international legally binding instrument on business and human rights, in the presence of :- Guus Houttuin, Senior Adviser on Trade Issues, EEAS- Claire Methven O´Brien, Strategic Adviser on Human Rights and Business, The Danish Institute for Human Rights - Carlos López Hurtado, Senior Legal Advisor, International Commission of Jurists."

The Exchange is well worth watching. The tortuous process of creating that sausage that will be the draft of an International Instrument on business and human rights that is only then intended to serve as the basis for negotiation (now well contained, through the sausage shell casings of the draft proffered up in this way)  has yielded riches for students of the application of human rights to economic activities. Among a very strong group of presentations, I will focus on those of Carlos López, and especially that of Claire Methven O'Brien, whose proposal for an alternative to the current form of the draft legal instrument--a framework treaty approach--has substantial appeal.

The presentations provide much food for thought.  My observations follow. Links to the video of the event along with the important submissions provided by participants  may be accessed by clicking on the picture which follows.

Open Call for Input from the UN Working Group for Business and Human Rights: Next Decade 10+ "Business and human rights – towards a decade of global implementation"

 

In the West, humans, and their institutions, are sometimes obsessed with the magical quality of the passage of time.  Time, of course, IS magical, in the sense that it signals first a thrusting toward vigor that then progresses toward an inevitable rigidity and a decline preceding death and its re-incarnation as memory. Every life, every effort, every endeavor, within the realities constructed through this obsession, is both marked by time, and doomed to a cycle of initial vigor and eventual decline, irrelevance, and oblivion (more more delicately put, toward ascent to a more eternal space of memory or joinder with a higher power).  

Indeed, since in the West human life is sometimes understood to stand as the measure of all things, it is appropriate to gauge the passage of institutional time by the expected lifetime of the humans who are responsible for its formation. Though the lifespan of institutions (including states, enterprises, and other social structures) may exceed the span of a human life  many times over, it is the span of a human life that gives value to such long-lived expressions of the collective humanity from out of which it is spawned, nourished, and used. The same applies to ideas, and to principles on which human organizations are incarnated, and to all structures through which humans are trained to "see the world" they believe they make.

The rhythm of such measures, of course, are also creatures of the systems invented by humans to count such things.  Since the Enlightenment (and its more abrupt expression in the revolutionary transformations in France after 1789), the way that many humans count is based on systems of 10.  The English counted for a while based on systems of 12, and the Americans still do.  But there is an elegance (at least for those nourished on the principles of Enlightenment counting) to 10 that adds significance to measuring the passage of  times in blocks of 10, and in multiples of 10 (centuries, millennia, epochs, etc.).  That rhythm, then, also produces the temporal spaces within which it is possible to take the measure of a thing.

It is no surprise, then, that one has reached such a period of magical signification in the evolution of the life (vigor, decline, death, transfiguration into memory or progeny) of the United Nations Guiding Principles for Business and Human Rights. Aaaahh, but not exactly for the UNGP, rather signification attaches here not to the principles themselves but to a rhythm that is a function of the year in which the UNGP were endorsed by an authenticating body--the UN Human Rights Council. Not just that, of course, for the spawning also produced a living memory of the event--the Working Group for Business and Human Rights.

To mark that passage of time, and to enhance its signification certain rituals are necessary. Those are the means through which both the thing itself is celebrated, but also the means by which those who tend it assert their power over it (the role of a Nietzschean priesthood, e.g., here) and one can better prepare for the inevitable passage of the signification itself (young and expanding, middle aged and stable, old and in decline, preparing to make way for what comes next). The traditional ritual for such passages involve a collective celebration whose trajectories are well managed by those who have taken for themselves (or have been given) authority to care for  (in this case) the institution of the UNGP. 

And so it is that the 

UN Working Group on Business and Human Rights (UNWG) launched a new global project, ‘Business and human rights: towards a decade of global implementation.” Also known as “UNGPs 10+ / Next Decade BHR,” the project is centred around the upcoming tenth anniversary of the UN Guiding Principles on Business and Human Rights (UNGPs), the global authoritative framework on business and human rights that was unanimously endorsed by the UN Human Rights Council in June 2011. The project is taking stock of practice to date, identifying gaps and challenges, and developing a vision and roadmap for scaling up implementation of the UNGPs over the course of the next decade. (Working Group: Call for Input).

The Call for Input is thus an important marker for the measurement of the UNGP, and for its placement within its own life cycle.  One gets that sense, of course, from the way that the Call for Input is framed.  One might learn as much from the questions posed as from the answers to be harvested, and thus harvested, processed, packaged and refined for public consumption.  The guidance for inputs center on five key projects: (1) bettering UNGP implementation; (2) identifying (and avoiding) failures and the work left to be done; (3) identifying people and institutions (as well as narratives and ideas) that continue to stand in the way of preferred progress; (4) a barely concealed effort to reorient the UNGP from  centering economic activity in human rights to the of human rights as the language of (the currently best candidate for supplanting the UNGP) sustainability and climate change ; and (5) the evolution of data driven measures to which the enterprise might be reduced. From these, it is presumed, that the Working Group will seek to develop a 2nd Ten Year Plan for the UNGP. Let us hope it measures up.

The  Working Group: Call for Input (with links HERE) follows.  Please consider participating! Inputs will be received through  30 November 2020 through a conveniently provided form.  Brief summaries of materials the senders believe useful will be accepted through the end of February 2021.

 

Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises; DRAFT Circulated 06.08.2020

After much well curated public and private activity, the Open Ended Inter-Governmental Working Group  on TNCs and Other Business Enterprises With  Respect to Human Rights has  released its Second Draft of a Legally Binding Instrument  to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises.  It comes almost a year after the release of the first Draft--which generated substantial support among those inclined to embrace its normative or strategic objectives, and substantial criticism among everyone else. 

The Second Draft is the product of a rather intense engagement, by those invited, to reactions by others of the initial draft, the public performance of which was held at the IGWG's fifth session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, "The revised draft served as the basis for direct substantive intergovernmental negotiations during the fifth session of the OEIGWG, which was held from 14 to 18 October 2019, in Geneva. The report of the fifth session is available here." (IGWG Website HERE). 

While there have been changes around the edges (to be discussed in a future post), the IGWG and its supporters took pains to affirm and deepen their commitment to the fundamental structure and approach adopted for the First Daft of 2019.  That is a pity. It conforms the Draft as an almost purely academic exercise--that that provides a useful distraction of some of the most potent minds in the field of business and human rights.  Thsu distracted in the construction of this idealized and highly flawed bauble (specific critique HERE), they are less available to undertake the serious work of investigation that would serve as a means of developing accountability structures that some somehow feel could arise, as if by magic, from the legal codes of states most of which are disinterested in or lack the capacity to engage in the sort of normative transformation called for in the IGWG Draft. 

But fair enough.  The FRaft is designed to provide a vehicle through which the academic and civil society vanguard can effectively push the governments of developed states (at least those whose politics are to their liking) to project their law (under cover of the fig leaf of internationalization) into the rest of the wrld.  In a way thsi si something that ought to appeal to the emerging empires in the US , China, and the EU.  For each, the Treaty Draft provides the legal basis for the development of a legal imperialism through which the ability of states that traditionally serve as the receptacles of global production might be relieved of even the pretense of a need for taking on the sovereign responsibility of managing their economic policies and affairs.

Also fair enough. But in the end, the Treaty Draft continues to suffer  from its fatal defect--it just does not work as law. It sounds like law, it purports to direct or "make" law, but much of it fails both for a flawed complexity, and for the ambiguities that twist its provisions into unworkable standards.  Or better put, into standards that can be worked to mean whatever it is that a pliant judiciary--or legislature--might be induced to clarify. In the end it remains more normative sentiment than law, more aspiration for a conception of a "better world" than the makings of a system through which it may be realistically managed.

All of this could be avoided had the drafters undertaken the most logical and simplest next step from the endorsement of the UN Guiding Principle--the development of a Framework Treaty that would, as a start, legalize the provisions of the UNGPs. There is a Draft for that worth considering in lieu of the baroque conceptual but deeply flawed masterpiece offered once agan by the IGWG and its backers. See HERE.

The Second Draft text follows and may be accessed HERE.