Framing Business & Human Rights?
Introducing the Symposium on a Framework Agreement as an Alternative Regulatory Proposal
Business and human rights (BHR), as an emerging field of modern law and legal research, is at an inflection point. On the one hand, its most prominent set of norms, the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), are widely accepted by leading institutions worldwide and recognised as having contributed to progress in this field. On the other hand, with a focus on remediating transnational corporate human rights abuses, governments and civil society organisations (CSO) are currently drafting a treaty within an Open-Ended Intergovernmental Working Group (OEIGWG).
This negotiation process within the UN was established in 2014 and holds a mandate from the UN 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’ (UN HRC. Res. 26/9). Throughout its seven sessions, the OEIWGW has sought to consider the ‘content, scope, nature and form of the future international instrument’ and negotiated draft texts, the most recent being the Third Revised Draft. While the negotiation process was widely welcomed by CSOs, the mandate and proposed drafts were met with diplomatic opposition, particularly by Western industrialised States. It is against this backdrop that the first-ever joining of the U.S. delegation to the OEIGWG meetings in October 2021 was received with much interest. While reiterating its opposition to the treaty in its current draft, the Biden administration expressed openness to exploring alternative routes to the current OEIGWG draft, including explicitly “a legally binding framework agreement” that would build on the UNGPs.
Framework agreements are a particular 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. While the idea of opting for a framework-designed approach for the BHR treaty had been considered by the OEIGWG and discussed by academic experts – including a formulated draft text by a leading scholar from 2020, the recent US proposition gave it a whole new impetus. Perceived by some as a distraction from existing efforts to create a binding treaty in the field, others regard the idea for a framework convention as offering a (more) promising and realistic route to improve the protection of human rights globally.
With this introductory note, we are thrilled to present our Symposium in cooperation with World Comparative Law (WCL). The aim of this Symposium is to discuss the ongoing OEIGWG process and to dare a curious examination of a possible framework convention as an alternative approach to regulating business in the field of human rights. It intends to explore regulatory potentials, challenges, benefits, and downsides of a conventional treaty (as currently proposed by the OEIGWG) and a framework-style convention (as recently suggested by the U.S. delegation). With this selection of contributions with a broad range of perspectives, we hope to open the debate to a wider public and enable States to make sound choices.
Giulia Botta kicks off our Symposium. Taking stock of the first UNGPs decade, she outlines the need for more policy coherence and for a mandatory international standard. Giulia Botta explores the potential opportunities and possible structure of a BHR framework convention and helps us navigate the intricacies of the BHR treaty processes.
Jonathan Klaaren believes that there is a necessity to acknowledge the short arm of the law and the long arm of economics. In his blog post, he explains why the fast-growing and distinctively African variety of competition regulation is well-suited for implementation complementing BHR framework agreements, strengthening the argument for their adoption.
Lucas Roorda approaches the BHR treaty drafting process from the perspective of private international law, focusing on the aspect of jurisdiction. He argues that the rule-based approach of the current OEIGWG draft, aiming at harmonisation, may create more problems than it resolves. By consequence, he suggests reframing the current OEIGWG draft as a framework agreement and including an explicit commitment to additional protocols addressing specific barriers to remedy.
Claire Methven O’Brien, building on previous work, advocates for a framework convention, that should be broad in scope, flexible and responsive. Against the backdrop of evolving approaches to regulating corporate human rights due diligence, and recent developments in the domain of ‘Environment Social and Governance’ (ESG) investment, she strives to demonstrate that norms and techniques of BHR regulation remain emergent and unstable. Consequently, she identifies a risk of obsolescence, when opting for a prescriptive international scheme.
Tara Van Ho argues that the USA is engaged in counter-diplomacy and calls on States to continue negotiating based on the Third OEIGWG Draft. She sketches the primary issues a BHR treaty needs to address, considers the progress that has been made towards meeting these needs within the current draft treaty, and finally indicates how a framework convention would undermine this progress. She suggests that there is little reason to tempt States such as the US back to the negotiating table, as they will not ratify any kind of BHR treaty for reasons that lay with their domestic political and legal system.
Nils Grohmann explores the potential of a possible framework convention in BHR under the aspect of monitoring and enforcement. Drawing on an analysis of the European Framework Convention for the Protection of National Minorities (FCNM) and the core UN human rights treaties, he makes concrete treaty-design suggestions that should be included in a framework convention to guarantee effective oversight.
Flávia do Amaral Vieira highlights that in a world dominated by corporate governance, civil society acts as an important counter to corporate capture, understood as the power connecting States and transnational corporations. She argues that the effort that civil society actors have invested in the OEIGWG process would be rendered futile if there were a shift away from the envisaged conventional treaty to a framework convention.
Larry Catá Backer addresses the challenges that a polycentric regulatory ecology poses for treaty-making. Informed by the analysis of previous initiatives, he identifies the broad contours of the challenges of treaty-making in the area of BHR. He argues that a framework-based approach offers the opportunity to both recognise the need to incorporate the larger architecture of business, human rights, and sustainability, and to develop the structures within which this coordination can be given form.
We are pleased to conclude our introductory remarks with the announcement of a special treat for our readers: We invited two renowned scholars, Surya Deva and Claire Methven O’Brien, who are rather emblematic for different approaches and convictions regarding Business and Human Rights for a written double interview. We are very much looking forward to a lively exchange on opposing positions!
We wish all readers an inspiring read and look forward to comments!
Dear authors, the floor is yours …