Thursday, 28 April 2016

The Governance Gap: a treaty on business and human rights?

One can be interested in promoting human rights in practice, yet question in principle the idea of a treaty process in this field.
Would the negotiation of some kind of binding international instrument on the human rights responsibilities of business (mainly, on the duties of states relating to these issues) really address the 'governance gap' in protection, promotion and remedy for human rights in this field?

This blog and perhaps its author are undergoing transformation -- hence the paucity of posts in 2016!

Meantime, however, here is a link to a paper published this week in which I question in various ways the enthusiasm of some academics, activists and diplomats for a single comprehensive treaty in this field... with a few caveats about the possible utility of a negotiating process.

The paper's abstract is below:

This working paper is the first to analyse whether insights into problems of ‘regulatory ritualism’ might inform contemporary debate on the merits and content of any new treaty based mechanism on the human rights responsibilities of business and financial actors. In 2015 a controversial inter-governmental working group held its first meeting towards  negotiating a future treaty. However, treaty proponents have not tied their arguments to any theory of regulatory effectiveness, nor addressed empirical arguments questioning the effectiveness of human rights treaties. This is problematic since some treaty proposals raise the spectre of state ‘compliance’ patterns marked by formalistic, empty rituals of verification. 

In setting up that possibility, the paper explores the status of debate on the merits or viability of a ‘treaty path’, canvassing the range of treaty options being proposed. Treaty opponents may over-state aspects of their case, such as the opportunity costs of drawn-out negotiations. Yet even assuming consensus is possible, treaty proponents have not shown how state acceptance of binding treaty obligations would necessarily address the ‘governance gap’ here. Proponents may confuse regulatory aims with the means for achieving these, placing undue faith in the preventative and remedial potential of binding international legal instruments.

Here are some links to previous posts on this topic: here.


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