Between a Rock and a Hard Place:  UN Legal Obligations and their Operational Inconsistencies, Dr. Robert Zuber

2 Oct

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There are many weeks when global affairs seem to be operating on parallel (and largely un-complementary) tracks.   For instance, the Security Council this week took up the horrific matter of hospital bombings in Syria, Yemen and elsewhere.   Despite the existence of settled “hard” humanitarian law and relevant Security Council resolutions, hospitals continue to be targets of heavy bombing, medical supplies are in ever-shorter supply, and medical staff from Médecins Sans Frontières and other organizations now speak openly of dying at their posts, resigned to the reality that “hard” law in the international arena is insufficient to motivate the “hard” choices that are now needed to stop the bombing and open reliable pathways to healing and relief.

In South Africa this week, states and experts met under the aegis of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).  Endorsed by virtually all UN member states, this meeting of CITES was devoted to discussions on “how best to integrate law enforcement, development, environmental and social approaches to combating illegal wildlife trade,” trafficking that rivals narcotics, weapons and persons as major sources of illicit revenue.  There are aspects of this general pursuit that make us uneasy – specifically the overused notion that we are “saving” species that our lifestyle choices and pervasive economic inequalities have endangered in the first place.  Still, CITES underscoring of the criminal aspects of wildlife trafficking –reinforced by the presence in South Africa of officials from INTERPOL and the UN Office of Drugs and Crime – may lead to some (but perhaps only temporary) relief for highly stressed species teetering on the brink of extinction.

In the climate arena, India has declared its imminent intent to ratify the Paris Climate Agreement, bringing another major carbon producer into the fold, and thereby bringing us that much closer to entry-into-force.  But prior to entry of this “harder” obligation, Costa Rica joined Iceland in demonstrating the technical capability and political will to power their countries with 100% renewable energy.  Small states, yes, and boasting an abundance of geo-thermal and other energy advantages to tap; but states also demonstrating that it is possible to take “softer” obligations and turn them into hopeful options for a planet melting faster than our “hard” agreements have to date contemplated.

But here there are also “parallel track” events that came to our attention this week and that make us wonder if the “memos” on climate that send out from the UN are finding their way to the appropriate state and corporate desks:  including the pursuit of licenses to mine the floors of oceans already shedding biodiversity and harboring vast islands of plastic ; the rapid destruction of habitat and mass poaching of wildlife in African states; mining interests from El Salvador to the Philippines that needlessly threaten precious local water supplies and undermine local economies;  a decision by state ministers to spend vast sums on the UK’s Hinkley Point Nuclear Power plant rather than increase investment in renewable energy options;  the exposing of California’s mass refining of oil purchased from sources in the Amazon.   And these are only a sample of this week’s (for us) “head-scratching” acts of climate defiance.

We wonder:  What are we not seeing?   Is such behavior a deliberate flaunting of existing regulations?  Is it a matter of making all the profit available before more “serious” regulations take effect?   Is it just a matter of economic addictions that lie beyond the reach of governments and their treaties?

Our colleagues at Global Policy Forum (GPF) have recently published a study in which they call for a “hard law” treaty to enforce human rights obligations on transnational corporations.  Such a treaty would replace the voluntary UN Guiding Principles adopted in 2011, principles that have proven a bit too easy to redefine and circumnavigate.  At the same time, and despite the many recognized limitations in our collective application of so-called “hard law” obligations, objections to a ‘treaty process” have been considerable, especially noteworthy from the US and European Union.

The authors of this report appear to have more faith than we do in the innate compliance effectiveness of “hard” treaty law.  Nevertheless, they are right to note that many corporations are now seeking guidance on human rights obligations — and not because they aim to avoid them.  But most want to comply on a level playing field, and “hard law” obligations — especially if that law provides for investigative and oversight mechanisms –are the “levelers” that many corporate entities are thankfully now desiring.

Moreover, a treaty of the sort envisioned by GPF could have benefits to states struggling to reign in the behavior of corporate entities dismissive of “host” domestic law and largely lacking oversight from the countries where they are legally registered.  It is easier to hold entities accountable, or to seek assistance on enforcing compliance, when the obligations in question are both clear and (to the extent possible) uniformly binding.  In a state such as El Salvador, purely “voluntary” obligations are rarely subject to binding international legal review.  Moreover, the state itself might well lack the power or will to enforce domestic laws governing corporate conduct.  Reinforcement in the form of “hard” international law might spell the difference between corporate attentiveness to local rights interests and the total disregard of such interests.

But the success of “hard law” requires more than specified, non-voluntary obligations.  Success requires enforcement and, more than that, the will to enforce.  More often than not, it is “will” that is lacking.   Even in the Security Council, ostensibly the seat of the UN’s most robust binding obligations, enforcement is at a premium.  Indeed many Council meetings are punctuated by states imploring – sometimes bitterly – for the Council to honor its own binding resolutions – “honor” in the sense of ensuring its own internal compliance but also “honor” in the sense of enforcing previously negotiated obligations.

As we have seen in many areas of international law, treaties can have considerable value in affirming core international norms and raising levels of compliance, especially treaties which are accompanied by compliance-enriching mechanisms in the form of treaty bodies.   But in a world characterized by diverse existential threats and numerous instances of willful discounting of such threats, we must be careful not to put all our eggs in the treaty basket.  There is other key work to accomplish– as relevant to “soft” law as “hard” – including continued vigilance regarding the impacts of reckless corporate choices (and government enabling of those choices) on options for rights-based, peaceful, inclusive, sustainable living.

We at the UN rightly talk a lot about the need for more “prevention,” especially in the areas of armed conflict and severe human rights crimes.   But “prevention” related to our diverse international obligations – as in what “prevents” us from achieving full respect for human rights and other life- affirming goals — is prevention that we must do more to counteract.  Given the crises that dominate our media and clog our in-boxes, our collective responsibilities seem clear – more vigilance, more thoughtfulness, more collaborative activity, more active and persuasive engagement with diverse corporate and state authorities. For civil society, these responsibilities persevere regardless of how “hard” or “soft” the regulations might be that we now find at our disposal.

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