The first binding treaty on business and human rights: a deconstruction of the EU’s negotiating experience along the lines of institutional incoherence and legal theories

When the UN Human Rights Council initiated negotiations towards the first international legally binding instrument for the accountability of transnational business activities, EU Member States opposed it, and EU institutions themselves endeavoured to obstruct it by making it conditional upon the widening of its scope, as to cover all domestic companies, too. This move, phrased in human-rights terms, might rather account for the EU's reluctance to have its subsidiaries in developing countries compete with domestic businesses subject to less rigorous due-diligence standards (and thus, lower labour costs). Developing countries replicated that human dignity resides in countries not being imposed harmful developmental trajectories for market-competition purposes, and in indigent workers not being prevented from seeking survival means in domestic employment. Mentioned stalemate exposed frictions between different EU institutions, and evoked issues of both EU law and public international law, including: competence demarcation between Brussels and Member States; 'extraterritoriality' of EU obligations in (negotiating) foreign policy; responsibility of non-state actors. Furthermore, these negotiations unearthed the problematic 'identity' of human-rights policymaking, in its intersection with the concrete needs of its addressees. The EU has risked to either disrupt the initiative, or lose sight of the stances of this project's actual stakeholders: the poorer.