Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to Be Framed, Why It Cannt, and the Dangers of the Pragmatic Turn in Treaty Crafting

Abstract

In June 2014, an “open-ended intergovernmental working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (IGWG) was established to overcome a number of purported deficiencies that some states and civil society actors had expressed about the soft law U.N. Guiding Principles for Business and Human Rights framework, endorsed by the Human Rights Council in 2011. Any move from regulatory systems grounded in Guiding Principles to one grounded in Treaty making raises two questions. The first is normative: what are the substantive goals of such a treaty. The second is operational: how should those goals be expressed in an international treaty? Both questions go to the fundamental ordering principles of regulatory construction and way such principles are developed and applied. After a short introduction, the essay first considers the great framework principles that might be extracted from the mandate for treaty elaboration of the IGWG. Those principles provide the objectives and substantive principles around which a comprehensive treaty will be elaborated. The essay then turns to the consideration of two levels of principles that may be used to guide pragmatic choices in treaty elaboration. The first touches on the great framework principles that give the treaty its structure and coherence within the objectives of the mandate. These suggest the range of ideological choices that must serve as a starting point for treaty drafting that is principled. Pragmatism follows from the need to choose among these framing principles or work through ways of blending them that avoid incoherence of the treaty as a whole. The second touches on issues of application of framing principle in the actual drafting of treaty provisions. Distinct framing principles privilege or emphasize distinct sets of provisions. Coordinating principle and provision — or moderating that connection suggests the scope of pragmatism that most take for granted (as the routine “wheeling and dealing” of negotiation, but which are guided by the usually unstated normative frameworks the purpose of which is to ensure coherence and fidelity to the basic ideological foundation of the draft.