Friday, May 12, 2017

Just Published: "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights"

I am happy to announce the publication of an article, "Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights," that appears in the North Carolina Journal of International Law 42(2): 417-504 (2016).

The introduction follows; comments and engagement always welcome. This is the fourth in a series of recently published work that explores the legal ecology of globalization, the first within the private sector regulatory systems, the second in Marxist Leninist systems, the third within emerging constituting structures of transnational ordering beyond the state, and this fourth considering the approaches to embedding international norm systems within the great legalization projects of international law. 

Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights

Larry Catá Backer
I. Context 1

II. Principles: From Objectives to Ideologies to Objectives in Search of the Perfect Treaty 12

III. From Objectives Based Principles to the Embedding of Principle in the Necessary Provisions of Principles Based Treaty Drafting. 33
A. Substantive Provisions. 34
B. Structural Provisions. 46
C. Process Provisions. 52
IV. The Principles in Pragmatic Elaboration of a Coherent Values Based Treaty 59

IV. Conclusion. 82

I. Context

This Article considers the ramifications of current efforts to internationalize the legal regulation of corporate social, economic and cultural responsibility. The article represents another iteration in a long ideological battle, the contours of which assumed their contemporary substantive forms in the 1970s,[1] but which evidences contemporary battles over the distribution of regulatory power among state and non-state actors in the early 21st century.[2] That battle revolves around two key questions. The first touches on the appropriate level—local, national, international, or transnational—for the legal regulation of corporations. The second touches on the substance and limits of that regulation. On one extreme end stand those who tend to view the issue of enterprise regulation as inexorably tied to the organization of economic power and thus as essentially national and markets based.[3] Moving toward the other extreme stand those who view the issue as inexorably tied to the larger issue of social and political obligation tied to internationalized standards for human rights and remedially based development obligations.[4] Increasingly, the borders between the two are ill defined.[5]

The current round of internationalizing the legal regulation of corporate social, economic and cultural responsibility was initiated in July, 2014, when the UN Human Rights Council established an open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises with respect to human rights, and mandated the 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.[6] This action represented the culmination of growing disaffection with the U.N. Guiding Principles for Business and Human Rights (UNGP),[7] which had been endorsed unanimously by the same Human Rights Council only three years before in June 2008.[8] The move from the operationalization of a soft law framework for coordinating the public law based duty of states to protect human rights with the private law, transnational, and social norm based responsibility of enterprises to respect human rights seemed to some incompatible with a move to consider a comprehensive treaty covering the same ground.[9] The Human Rights Council appeared to signal substantial lack of consensus among its members respecting the focus of their efforts to move forward on developing structures for managing the human rights impacts of economic activities. Ironically, the adoption of the resolution to create the IGWG and start a treaty drafting process while continuing to support the earlier adopted soft law framework under the UNGP might have reduced acrimony even as it contributed to anarchy.[10]

At the time of the adoption of the resolution establishing the IGWG, such a trajectory, from UNGP to IGWG, would have been unexpected. John Ruggie, as the Special Representative of the U.N. Secretary General for Business and Human Rights,[11] had “achieved what seemed unthinkable in 2005 at the beginning of his mandate.”[12] Some influential civil society organs were cautiously optimistic about the framework.[13] Indeed, the establishment of the UNGP represented the culmination of a contentious and often failed process that had started in the 1970s as international organizations sought to figure out a way to create a set of quasi-public responsibilities of corporations engaged in economic activity across borders.[14] Yet the endorsement did not silence criticism[15]—it merely sharpened it.[16] Amnesty International set the tone for the post endorsement critique:

The draft guiding principles enjoy broad support from business, precisely because they require little meaningful action by business. Prof Ruggie has acknowledged that governments often fail to regulate companies effectively, and that companies working in many countries evade accountability and proper sanctions when they commit human rights abuses. The fundamental challenge was how to address these problems. His draft guiding principles fail to meet this challenge. Amnesty International believes they must be strengthened. We have offered constructive advice, based on years of investigative experience, to help the process. We will continue to do so.[17]

Civil society became more vocally critical of the UNGP project after 2012,[18] as did some influential legal academics.[19] Some thought that this criticism would be the basis for efforts to guide the operationalization of the UNGP.[20] Instead, this criticism ultimately became a call for a comprehensive treaty on business and human rights shortly after the UNGP endorsement, one built around the core group of civil society that had been most critical of the UNGP process.[21] These civil society elements framed their efforts around a “Global Movement for a Binding Treaty” whose purpose was to enhance the international legal framework to protect human rights from corporate abuse.[22] The object, quite logically, was to extend what Stephen Hopwood, had critically called the Global Human Rights Regime “where law, courts, money, and access to power in New York and Geneva are more familiar terrain.”[23] The business community, on the other hand, reaffirmed their commitment to a governance framework for business and human rights without a treaty.[24]

Simultaneously, a group of developing states led first by Ecuador and thereafter joined by South Africa[25] began efforts to reconsider the UNGP as the framework around which the U.N.’s business related human rights efforts would be focused. In August 2013, at the Regional Forum on Business and Human Rights for Latin America and the Caribbean, and later at UN Human Rights Council 24th session in September 2013, the representative of Ecuador before the UN made a declaration regarding “Transnational Corporations and Human Rights,”[26] seeking a legally binding international instrument on business and human rights to be concluded within the UN system.[27] This declaration was supported by a number of developing states and “welcomed” by a large number of influential civil society actors.[28]

The action to establish an IGWG with its treaty elaboration mandate itself divided the Human Rights Council, with the developed states and their allies firmly opposed to an action that had been brought by a group of developing and mostly non-Western states.[29] At the same time, the Human Rights Council also indicated its adherence to the principles of the UNGP,[30] and adopted by consensus a resolution put forward by Norway and supported by forty-four co-sponsors that expressed support for further operationalization of the UNGP.[31] The Norway resolution included a request that the UN Working Group[32] prepare a report considering, among other things, the benefits and limitations of legally binding instruments.[33] Many of the states that supported the Norway resolution remain hostile to the treaty project.[34] The U.S. is likely to boycott some or all of the deliberations, and the European Union and Norway have reportedly sought to condition participation on a number of parameters that would substantially reshape the IGWG mandate.[35]

Thus, the Human Rights Council appears to have supported two distinct pathways toward the governance of business and human rights that are centered on the activities of transnational corporations (a term that remains ambiguous).[36] On the one hand, the Human Rights Council continues to support the UNGP project[37], a project that itself broke some new ground with its multiple focuses on private law, public law, and societally sourced governance framed within its three pillar structure: a state duty to respect human rights, a corporate responsibility to respect human rights, and a global obligation to provide remedies for breaches of these duties and responsibilities by states and enterprises.[38]

On the other hand, the Human Rights Council has also opened the possibility of shifting focus from the UNGP project to one more traditionally centered on treaty-making and public law.[39] But how does one go about drafting a treaty—and especially one focused on business and human rights? Treaty drafting is a complex project, not merely for its compositional elements but for its legal effects under international and domestic law. What are the principles that ought to frame the drafting of a treaty? How does one evaluate the effect of provisions against these fundamental principles and objectives? Lastly, how does one develop a framework for pragmatic compromise that preserves the integrity of the treaty draft without compromising its core principles? These are not just theoretical questions. The questions suggest the need to focus analysis on the central task of treaty elaboration that the Human Rights Council has taken upon itself in creating the IGWG and that the international human rights community, in its representative capacity, must have clearly in mind as it engages in that treaty elaboration process.

This article considers how to approach these questions and their consequences that face treaty drafters tasked with the project of creating a comprehensive treaty for business and human rights. Its principal insight follows from its focus: no comprehensive treaty for business and human rights will retain any coherence or fidelity to its core objectives unless the treaty drafters first identify and choose among the plausible ideologically distinct principles and frameworks for going forward and then tie the elaboration of specific provisions to these principles. Sounds simple, doesn’t it? Yet in the case of a comprehensive treaty for business and human rights, these simple considerations raise basic issues of the relationship of law to social norm, of the scope, purpose and function of international and corporate law, of the legitimate mechanics for legalization of macro-economic policies, of the scope and methodologies of regulation, and lastly of the ways in which international organizations function between the public and private spheres.

The UN Human Rights Council decided that the first two sessions of the working group should be devoted to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument.”[40] At its first session, civil society refined their expectations for the scope and coverage of a treaty instrument under the mandate.[41] The working group organized its consideration for the scope of a treaty around a number of broad concepts: (1) renewed commitment by states;[42] (2) principles;[43] (3) concepts and legal nature of transnational corporations; [44] (4) extent of human rights to be covered; [45] (5) state obligations to guarantee respect for human rights by entities; [46] (6) enhanced responsibilities for entities; [47] (7) legal liability of entities; [48] and (8) international remediation mechanisms. [49] There was little consensus except at a very general level.[50] Also there may be some fundamental disagreement between the position of the states supporting the treaty project and their civil society allies.[51] At its Second Session,[52] a set of six panels continued the discussion along the same lines, considering in now well understood ways, the social, economic and environmental impacts of TNCs, the utility of extraterritoriality to the project of managing the conduct of TNCs, the societal obligations of TNCs to respect human rights, and the hard issue of remedies in the context of the jurisdictional niceties of the state system.[53]

The work to date, then, suggests two principal challenges for the treaty making project; the first is consensus on underlying principles and objectives; the second is the extent to which the provisions of a treaty must conform strictly to principle, that is to the principles within which pragmatic decisions may be taken that do not imperil the logic of the regulatory project itself. Both touch on issues of coherence and vision. Yet because neither is undertaken in a vacuum, both also suggest the need for pragmatism and a set of principles for pragmatic choices to move from conceptualization to draft treaty in ways that advance the objectives of its champions or preserves the interests of its opponents. Yet the notion of pragmatism—and especially the principled pragmatism[54] that John Ruggie advanced as the basis for the elaboration of the UNGP[55]—has been criticized by those now driving the treaty movement itself.[56] Indeed, as David Kennedy noted almost two decades ago, “it is often tempting (for those within and without the movement) to set pragmatic considerations aside, to treat human rights as an object of devotion rather thancalculaiton.”[57]

The parallels between the elaboration of the UNGP and that of the work of the IGWG, and its associated movement toward the elaboration of an international business and human rights treaty in some form, cannot be ignored. Both present their proponents with the same sort of problem—the problem of pragmatism in the construction of a treaty—from the embrace of a coherent set of animating principles to the objectives in drafting specific provisions that remain true to these principles. Notions of principle and pragmatism, of objective and compromise, will play a role in two critical aspects of treaty making. First it will be fundamentally related objectives that the treaty elaboration project relates with respect to the project of human rights in business activities; second it serves as an essential element in determining the scope and form of the treaty itself.[58] It is to the fundamental issues of framing principle and treaty scope, of the pragmatic choices that will shape its structures, and of the comprises in the service of attainment of the ultimate objectives underlying the push for a comprehensive treaty for business and human rights that this article is directed.

After this short introduction, Section II considers the normative principles that might frame a principles-based treaty-making project to further the ends of its champions. To that end it considers both the charge to the IGWG and the objectives statements of an influential group of NGOs that have been important in driving the process. These suggest the range of plausible ideological choices that may serve as a starting point for treaty drafting that is principled. For that purpose, evolutive and transformative objectives are distinguished and considered in the context of framework, institutional and systemic objectives. Section III then considers how these principles would find expression in a treaty. Negotiation will tend to focus on three classes of technical provisions, all of which look ideologically adrift, but each of which is embedded with principle and the choices of ideology moving the elaboration project forward: structural provisions, substantive provisions, and process provisions. That consideration then raises the critical contradiction of the treaty-shaping process: each of the fundamental principles that ought to drive treaty drafting themselves challenge the normative order and contemporary principles for the organization of state, enterprise and international law. That leads to a necessary consideration of the likelihood that the application of principle to treaty writing may produce a challenge to conventional norms and the ideologies of domestic and international law systems that may require pragmatic compromise in treaty drafting. That challenge is taken up Section IV, which considers the ways that principled pragmatism may be useful in helping construct a framework for determining an approach to treaty making in the shadow of the UN Guiding Principles themselves. It ends with a brief consideration of the effects of the 2016 United States Presidential elections and the potential impacts of the foreign and trade policies of President Trump on the pragmatic choices for a treaty going forward.

This article then examines the operational heart of the treaty process itself where the best intentions and deepest substantive principles of its proponents are confronted with both implementation choices (pragmatism of principles) and compromises of those animating principles themselves (principled pragmatism). It thus considers the pragmatic approach to pragmatism itself. Here, actors are not confronted with the issue of operational choices within a set of principles consistent with an underlying ideology. Rather, actors are confronted with the willingness to move away from one or more of the cluster of principles animating any original approach to attain objectives in the face of principled opposition from actors essential to the successful attainment of regulatory goals. The principles of pragmatism may permit the dilution of principle to attain the core objectives to which those principles are directed.

W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs, Pennsylvania State University; Executive Director Coalition for Peace & Ethics. My thanks to Angelo Mancini (Penn State Law J.D. expected 2017) for his usual excellent research assistance. These materials were first presented as “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.” Roundtable on the Proposed Comprehensive Treaty on Business and Human Rights, International Commission of Jurists, Geneva, Switzerland, November 19, 2015. A revised version was presented as “Drafting a Treaty on Business and Human Rights” for the Business and Human Rights Roundtable on International Human Rights and Business: Evaluating the Impact of the UNGP’s, organized by the Human Rights Interest Group, American Society of International Law and held at the George Washington University Law School on March 29, 2016. My thanks to the organizers of both and to the participants for their valuable comments. The article builds on insights of a short essay, Larry Catá Backer, "Pragmatism without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, and the Dangers of the Pragmatic Turn in Treaty Crafting," in Building a Treaty on Business and Human Rights (Surya Deva and David Bilchitz, ed., Cambridge U. Press, forthcoming 2017).

[1] See Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 Colum. Hum. Rts. L. Rev. 287, 308–327 (2006).

[2] See generally Radu Mares, A Rejoinder to G. Skinner’s Rethinking Limited Liability of Parent Corporations for Foreign Subsidiaries’ Violations of International Human Rights Law, 73 Wash. & Lee L. Rev. Online 117 (2016), (describing three baselines of legalizations that shape contemporary thinking).

[3] See e.g., Kent Greenfield, There’s a Forest in Those Trees: Teaching About the Role of Corporations in Society, 34 Ga. L. Rev. 1011 (2000); see also Mark J. Roe, Can Culture Constrain the Economic Model of Corporate Law?, U. Chi. L. Rev. 1251 (2002).

[4] See Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business 200–231 (Routledge 2012).

[5] See e.g., Penelope Simons and Audrey Macklin, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage 79–177 (Routledge 2014); Daniel Augenstein and David Kinley, When Human Rights ‘Responsibilities’ Become ‘Duties:’ The Extraterritorial Obligations of States that Bind Corporations, in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? 271–294 (2013).

[6] Human Rights Council Res. 26/9, U.N. Doc. A/HRC/26/L.22/Rev. 1, para. 1 (June 26, 2014).

[7] U.N. Human Rights Office of the High Comm’r, Guiding Principles On Business And Human Rights: Implementing The United Nations “Protect, Respect And Remedy” Framework (2011), [] [hereinafter UNGP].

[8] See John Ruggie (Special Representative of the Security General), Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, para. 5, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).

[9] See generally Larry Catá Backer, From Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25 Pac. McGeorge Global Bus. & Dev. L.J. 69 (2012) (discussing the move from soft law to a principles-based approach.).

[10] See Shane Darcy, Guest Post: Josh Curtis Reflects On the United Nations Business And Human Rights Forum 2014, Bus. & Hum. Rts. In Ir. para. 2 (Dec. 17, 2014), [] (“To the relief of many, the second aspect was a distinct turn towards a constructive rapport in the relationship between the more established process of implementing the UNGPs and the new initiative on a binding treaty. As Amol Mehra, the Director of the International Corporate Accountability Roundtable puts it, ‘treaty’ is no longer a bad word.”).

[11] Ruggie, supra note 8.

[12] Faris Natour, The UN Guiding Principles: What’s Next for Business and Human Rights, Bus. For Soc. Resp. (June 21, 2011), [].

[13] See Rachel Wilshaw et al., Oxfam Int’l, Business And Human Rights: An Oxfam Perspective on the UN Guiding Principles (2013), [] (“The UNGPs have set the stage for meaningful development in business and human rights policies by clearly defining, for the first time, the roles and responsibilities of the state and businesses, and means of redress open to people who are victims of human rights violations. In doing so, they have placed rights firmly back onto the corporate social responsibility (CSR) agenda.”).

[14] See Karl P. Sauvant, Looking Back, Looking Ahead: What Lessons Should We Learn From Past UN Efforts to Adopt a Code of Conduct for Business?, Inst. for Hum. Rts. & Bus. paras. 2, 3 (Apr. 16, 2015), [].

[15] See Hugh Williamson, Rights Groups Slam UN Plan For Multinationals’ Fin. Times para. 5 (Jan. 17, 2011), [] (showing “controversial new standards governing the operation of multiational companies in developing countries and conflict zones could undermine rather than reinforce efforts to protect human rights”).

[16] See generally Joint Civil Society Statement on the Draft Guiding Principles on Business and Human Rights, Worldwide Movement for Hum. Rts. (Jan. 2011) [hereinafter Joint Civil Society Statement], [] (discussing criticisms of the Guiding Principles).

[17] See Widney Brown, Stronger UN Draft On Human Rights Abuses Needed, Fin. Times (Jan. 19, 2011), [].

[18] See Chris Albin-Lackey, Without Rules: A Failed Approach to Corporate Accountability, Hum. Rts. Watch 2–4, [].

[19] See Robert C. Blitt, Beyond Ruggie’s Guiding Principles on Business and Human Rights: Charting an Embracive Approach to Corporate Human Rights Compliance, 48 Tex. Int’l L. J. 33, 52–56 (2012); David Bilchitz & Surya Deva, A Chasm Between “is” and “ought”? A Critique of the normative foundations of the SRSG’s Framework and the Guiding Principles, Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? 107–37 (2013).

[20] See Natour, supra note 12, para. 5 (“Granted, some advocacy groups, including Human Rights Watch and Amnesty International, have voiced important criticism, suggesting that the principles’ standards for government and business are too low. But even these organizations likely will invoke the Guiding Principles in their efforts with business, while advocating at the UN level for more stringent standards.”).

[21] See generally Global Movement for a Binding Treaty, available at (“An alliance of committed networks and campaign groups around the world are joining to collectively help organi[z]e advocacy activities in support of developing a binding international instrument to address human rights abuses committed by transnational corporations and other business enterprises.”). Id.

[22] See Enhance the International Legal Framework to Protect Human Rights from Corporate Abuse, Treaty All. para. 1, [].

[23] Stephen Hopwood, The Endtimes of Human Rights, in Debating The Endtimes of Human Rights: Activism and Institutions in a Neo-Westphalian World 11, 13 (Doutje Lettinga & Lars van Troost, eds. Amnesty International Netherlands, 2014). See generally Stephen Hopwood, The Endtimes of Human Rights (New York: Cornell University Press, 2013) (critique of the international human rights movement and organizations, but also of the International Criminal Court and the Responsibility to Protect).

[24] See Employers Reaffirm Commitment to UN Principles on Business and Human Rights, U.S. Council For Int’l Bus. para. 5 (June 30, 2014), [].

[25] UN Human Rights Council Sessions, Bus. & Hum. Rts. Res. Centre para. 3, [] [hereinafter UN Human Rights Council sessions].

[26] See Statement on behalf of a Group of Countries at the 24rd Session of the Human Rights Council, Bus. & Hum. Rts. Res. Centre para. 3 (Sept. 2013), [].

[27] UN Human Rights Council sessions, supra note 24, para.1.

[28] Press Release, Dismantle Corporate Power, Statement to the Human Rights Council in Support of the Initiative of a Group of States for a Legally Binding Instrument on Transnational Corporations (Sept. 13, 2013), [].

[29] UN Human Rights Council Sessions, supra note 24, para. 4 (“The votes were: 20 in favo[]r (Algeria, Benin, Burkina Faso, China, Congo, Côte d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russia, South Africa, Venezuela, Vietnam), 14 against (Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, UK, USA) and 13 abstentions (Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, UAE). On 27 June, the Council adopted by consensus Norway’s resolution.”) (emphasis added).

[30] See UN Human Rights Council sessions, supra note 24, para. 4.

[31] Human Rights Council Res. 26/22, U.N. Doc. A/HRC/26/L.1 (June 23, 2014).

[32] Human Rights Council Res. 17/4, U.N. Doc. A/HRC/RES/17/4, paras. 14(a)–(j) (July 6, 2011) (containing the goals of the UN Working Group).

[33] Human Rights Council Res. 26/22, supra note 30, para. 23.

[34] See John G. Ruggie, The Past as Prologue?: A Moment of Truth for UN Business and Human Rights Treaty, Harv. John F. Kennedy Sch. Gov’t para. 5 (June 2014), [].

[35] Chip Pitts, “Ready, Steady, Debate!”: Treaty Talks Begin at U.N., Bus. & Hum. Rts. Res. Centre para. 14, [] (“(i) a third-party chair to facilitate the process, (ii) broadening the focus beyond transnationals, (iii) commitment by all to continued implementation of the GPs, and (iv) consultation with relevant experts, civil society, and business.”).

[36] See generally John Ruggie, Just Business: Multinational Corporations and Human Rights (2013) (discussing the relationship between business and human rights).

[37] Id. at 3.

[38] Id. at 4.

[39] See id. at 3–5.

[40] Human Rights Council, Rep. on the First Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, with the Mandate of Elaborating an International Legally Binding Instrument, U.N. Doc. A/HRC/31/50, at para. 1 (Feb. 5, 2016) (The quotation is found on page two, paragraph 1, in the introduction.) [hereinafter Rep. On The First Session].

[41] See id. paras. 21–105.

[42] Id. paras. 37–39.

[43] Id. paras. 40–54.

[44] Id. paras. 55–61.

[45] Id. paras. 62–66.

[46] Rep. On The First Session, supra note 39, at paras. 67–77.

[47] Id. paras. 78–87.

[48] Id. paras. 88–97.

[49] Id. paras. 98–105.

[50] See generally Intergovernmental Working Group Sessions, Bus. & Hum. Rts. Res. Centre, [] (providing the various statements proffered to the working group by civil society organization around its first session).

[51] See Int’l Network for Econ., Soc. & Cultural Rights (ESCR-Net) Corp. Accountability Grp., Statement of the ESCR-Net Corporate Accountability Working Group (CAWG), Bus. & Hum. Rts. Res. Centre, [] (“[S]ome States involved in the negotiation are attempting to qualify this text with the following definition: ‘Other business enterprises’ denotes all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law. The inclusion of this restrictive definition in the resolution text is a damaging development, which would result in a missed opportunity to ensure a level playing field for all corporations worldwide, while also ensuring that all corporate human rights violations are addressed by future international normative developments.”).

[52] Human Rights Council, Rep. on the Second Session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, with the Mandate of Elaborating an International Legally Binding Instrument, U.N. Doc. A/HRC/34/47, at para. 1 (4 Jan. 2017) [hereinafter Rep. On The Second Session].

[53] Id., 6-22.

[54] Principled pragmatism in the context of the developing a framework for the governance of the relationship between business conduct and emerging global human rights norms was defined as “an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most—in the daily lives of people.” John G. Ruggie, Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Human Rights Council A/HRC/14/27, para. 4. (Apr. 9, 2010),

[55] See Principled Pragmatism – The Way Forward for Business and Human Rights, U.N. Hum Rts. Off. High Comm’r para. 8 (June 7, 2010), [] [hereinafter Principled Pragmatism] (“Operating from a position of ‘principled pragmatism,’ Ruggie said he had set out to close the governance gaps which ‘provide the permissive environment for wrongful acts by companies of all kinds without adequate sanction or reparation.’ In this latest phase of his work, he has combined research, consultations and practical experimentation to give practical effect to the ‘protect, respect, remedy’ framework.”).

[56] For example, EarthRights International faulted the UNGPs failure to confront the fundamental question of the direct obligation of enterprises under public international law because of Mr. Ruggie’s embrace of principled pragmatism as the framework through which the UNGP’s were elaborated. See Jonathan Kaufman, Ruggie’s Guiding Principles Fail to Address Major Questions of Obligations and Accountability, EarthRights Int’l (Apr. 5, 2011), [] (“[T]he ‘pragmatic approach’ counsels against tackling such issues – why chase after ephemeral and controversial points of international law when there are concrete gains to be made now through win-win, collaborative efforts?”).

[57] David W. Kennedy, The International Human Rights Regime: Still Part of the Problem?, 14 Harv. Hum. Rts. J. 101, 102 (2002).

[58] This later point was recognized by at least on the participants in the 2nd Session of the IGWG who
focused on the potential form of the treaty, suggesting several possibilities: a detailed treaty setting out substantive and procedural matters, similar to the Rome Statute; a framework treaty setting out key principles and approaches, such as the United Nations Framework Convention on Climate Change; a core treaty ith a series of annexes to deal with supervisory mechanisms and developments, such as the Vienna Convention for the Protection of the Ozone Layer; or an optional Protocol to existing human rights treaties. The treaty should expressly cover enterprises owned or controlled by the State; it should also define the responsibilities of international organizations.
Rep. On The Second Session,supra, ¶ 98, 17.

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