Open-ended Intergovernmental Working Group Research Articles

Substance- or legitimacy-oriented (de)legitimation of global governance institutions. The double-edged role of complexity

ABSTRACT This paper contributes to International Relations studies on the (de)legitimation of global governance institutions by introducing a focus on substance-oriented (de)legitimation practices to complement existing legitimacy-oriented perspectives. Building on the distinction between performance and performativity, the paper clarifies the concepts of performing (de)legitimation as legitimacy-oriented and performative (de)legitimation as substance-oriented. It argues that while the former primarily aims to contest or establish legitimacy, the latter targets substantive outcomes but affects legitimacy as a by-product. The paper introduces three distinguishing criteria – orientation toward legitimacy or substance, focus on form or function, and justificatory or substantive manifestation – to differentiate between the two. Their empirical manifestation is illustrated through a case study of the United Nations’ open-ended intergovernmental working group on business and human rights, which highlights the role of complexity and how it can serve both sets of (de)legitimation practices by contributing to legitimacy and substance, respectively.

The Morocco-Nigeria BIT: An Important contribution to Ensuring the Accountability of TNCs for Their Human Rights Violations?

Corporate accountability for human rights violations has been at the forefront of the business and human rights debate. This debate has focused on the establishment of binding human rights obligations on corporate entities, particularly following the Human rights Council’s initiative to establish a treaty on business and human rights– a mandate given to the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. Joining this debate, this paper briefly comments on relevant provisions of the 2016 Morocco-Nigeria Bilateral Investment Treaty (BIT) which appears to contain innovative provisions that seek to ensure that investors (who are often corporate entities) are held accountable for their investment activities that adversely impact human rights within their host States. Although the Morocco-Nigeria BIT remains exceptional within the investment treaty framework, it reflects an initiative to ensure that the next generation of BITs encourages greater corporate accountability for their human rights violations.

The Morocco-Nigeria BIT: An Important Contribution to Ensuring the Accountability of TNCs for their Human Rights Violations?

Corporate accountability for human rights violations has been at the forefront of the business and human rights debate. This debate has focused on the establishment of binding human rights obligations on corporate entities, particularly following the Human rights Council’s initiative to establish a treaty on business and human rights– a mandate given to the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. Joining this debate, this paper briefly comments on relevant provisions of the 2016 Morocco-Nigeria Bilateral Investment Treaty (BIT) which appears to contain innovative provisions that seek to ensure that investors (who are often corporate entities) are held accountable for their investment activities that adversely impact human rights within their host States. Although the Morocco-Nigeria BIT remains exceptional within the investment treaty framework, it reflects an initiative to ensure that the next generation of BITs encourages greater corporate accountability for their human rights violations.

Towards Treaty on Business and Human Rights: Key Areas of Agreement

Current legal framework does not properly address the impact that transnational corporations have on human rights. In response to that in 2014 the UN Human Rights Council established an open-ended intergovernmental working group with a mandate to elaborate an international legally binding instrument to regulate activities of transnational corporations and other business enterprises. Although this decision was strongly contested and initially there was very little consensus on what such a treaty should entail, much effort has been invested to improve the content of the proposed treaty and gather the necessary support for its adoption. The aim of this article is to analyse the progress made in negotiating the treaty and to find any essential areas of agreement between different stakeholders. To achieve that aim, historical and analytical research methods have been primarily used. The study finds that two crucial areas of agreement exist – on the regulatory targets and regulatory model – that allows for real negotiations to begin. Keywords: consensus, human rights, transnational corporations, treaty on business and human rights

A Neatly Engineered Stalemate: A Review of the Sixth Session of Negotiations on a Treaty on Business and Human Rights

The sixth session of the United Nations (UN) open-ended intergovernmental working group (IGWG) tasked with ‘elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’1 (BHR Treaty) took place virtually during 26–30 October 2020.2

INTERNATIONAL UNIVERSAL INSTITUTIONAL MECHANISM FOR HUMAN RIGHTS PROTECTION IN BUSINESS SPHERE

The article focuses on the functioning of the international universal institutional mechanism for the protection of human rights in business sphere. The importance of the statutory bodies of the United Nations, the officials who are empowered to make decisions on many issues related to a wide range of subjects of international legal relations, including the protection of human rights in business sphere, is emphasized, in particular: the General Assembly, the Economic and Social Council, the Security Council, the Secretary-General. The role of the Human Rights Council as a body of the United Nations, which is responsible for promoting the universal respect for human rights and fundamental freedoms, in the creation of specialized, narrow-profile human rights protection structures in business sphere has been defined. The powers of the Special Representative of the Secretary-General on Human Rights and transnational corporations and other business enterprises have been described, with an emphasis on the significance of “Protect, respect and remedy” framework proposed by him. The attention is paid to the Working Group on the issue of human rights and transnational corporations and other business enterprises. The importance of the UN Forum on Business and Human Rights as a dialogue center for the cooperation on business and human rights issues is highlighted. The emphasis is placed on the mandate of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, which provides the development of a legally binding instrument for regulating the activities of transnational corporations and other business enterprises in international human rights law. It is emphasized on the tasks performed by the Office of the United Nations High Commissioner for Human Rights in business and human rights issues, and its cooperation with specialized bodies in this area; its role in the promotion and implementation of the Guiding Principles on Business and Human Rights is highlighted.

Towards a normative framework: The UN Treaty on transnational corporations, other businesses and human1 rights

While transnational corporations and other business enterprises have the capacity to foster economic well-being, development, technological improvement and wealth, trade and investment agreements often lead to policies and governmental measures with a negative impact on the full enjoyment of human rights. In 2014, the United Nations Human Rights Council decided to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate is to elaborate a binding instrument of international law. The paper offers a discussion of the progress achieved on the topic so far by focusing on the key challenges: the added value of a specific treaty, personal scope, material scope, the State duty to protect human rights, the corporate responsibility to respect human rights, the need for greater access to remedy for victims of business-related abuses, etc.

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

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.

Towards a New Treaty on Business and Human Rights

AbstractThis article examines the legal as well as political feasibility of four potential options for a legally-binding international instrument in the area of business and human rights. The four options that the open-ended intergovernmental working group may wish to consider while negotiating an instrument are: (i) to clarify and strengthen the states’ duty to protect human rights, including extraterritorially; (ii) to oblige states, through a framework convention, to report on the adoption and implementation of national action plans on business and human rights; (iii) to impose direct human rights obligations on corporations and establish a new mechanism to monitor compliance with such obligations; and (iv) to impose duties of mutual legal assistance on states to ensure access to effective remedies for victims harmed by transnational operations of corporations. As these options are not mutually exclusive, the author argues that a hybrid instrument building on elements of the first and the fourth option may be the best way forward both in terms of political feasibility and improving access to effective remedies for victims.

Towards a Business and Human Rights Treaty

A new wave of international discussion on an international binding instrument on business and human rights was triggered by the proposal for a business and human rights treaty by some states, originally represented by Ecuador and South Africa. Through its resolution A/HRC/RES/26/9 in June 2014, the Human Rights Council decided to establish “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”. Despite the Council mandate, the debate on a binding approach still continues and the necessity of a business human rights treaty remains controversial. This thesis addresses a three-fold research question on the proposal of a business and human rights treaty: 1) What is the state of play in the ongoing debate of a binding proposal? 2) Is it necessary to elaborate a business and human rights treaty? 3) If one is deemed necessary, how should a business and human rights treaty be formulated? The research question is answered by a combination of methods; including empirical research, literature review and legal analysis. The approach of this thesis is both empirical and legal.In Chapter Two, this thesis takes a close observation of the ongoing debate on the proposal of a binding instrument on business and human rights. In Chapter Three, this thesis conducts a comprehensive examination on the necessity of a business and human rights treaty. It evaluates the necessity of a treaty from four significant issues of international legalization in the field of business and human rights. These issues are: the legal need of a business and human rights treaty in international legal framework, the political as well as legal achievability of a treaty on business and human rights, and the potential implications of elaborating a treaty on business and human rights. In Chapter Four, this thesis provides a constructive proposal on the specific legal formulation of a business and human rights treaty. The proposal discusses four general issues including: the duty-bearers, scope, extraterritoriality and function of a business and human rights treaty. The proposal suggests seven of the core provisions of a business and human rights treaty and provides commentaries for each provision.Firstly, it is shown that while the necessity of a business and human rights treaty is still a core concern in the ongoing debate, potential issues have emerged. Further, it is deemed that it is necessary to elaborate a business and human rights treaty. Finally, it is suggested that a binding instrument on business and human rights should be a framework convention on strengthening the state obligation to protect human rights against abuses by businesses.

Essay: Considering a Treaty on Corporations and Human Rights: Mostly Failures But with a Glimmer of Success

In June 2014, three years after it endorsed the U. N. Guiding Principles on Business and Human Rights, the UN Human Rights Council moved to establish 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. These actions brought into the open long festering tensions among stakeholders involved in developing governance frameworks to manage the human rights behaviors of enterprises. The substantive positions of most stakeholders are now quite clear. They appear perhaps irreconcilable. This chapter will consider what the process of negotiating the contemplated treaty may reveal about the state of structuring governance frameworks for business and human rights either within the anticipated treaty framework or under the UNGPs. What analysis may reveal is that while the move toward the negotiation of a treaty may reveal substantial normative and conceptual failures, it also suggests some not inconsiderable successes. After setting the context of the current debate, Part II considers the normative and structural difficulties of the move toward a comprehensive business and human rights treaty. Part III then considers its benefits, both for the process of developing structures of governance for business and human rights, and its substance. Taken together what may become clear is that even were the move toward a treaty to end in failure, the movement toward more robust governance of the human rights effects of economic activity will emerge stronger.