GEG WP 2016/118 The Risk of Regulatory Ritualism: Proposals for a Treaty on Business and Human Rights

Abstract

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.