Thursday, September 06, 2012

Sara Seck on the Possibilities and Limits of Extraterritoriality in a Corporate Social Resonsibility and Human Rights Context

Sara Seck is an Assistant Professor at the University of Western Ontario.  She has been wrestling with the issue of extra-territoriality in some interesting and thoughtful new ways.

This post considers the developmet of Professor Seck's thinking about extra territoriality at the intersection of the ideology of the law-state, of the insights of Third World Approaches to International Law (TWAIL) and the markets-based ideology of globalization. 

Professor Seck has embarked on an important project--the interrogation of extraterritoriality in its current form.  What makes this an important exploration is both her recognition that the notion of extraterritoriality has assumed a new character in the wake of globalization and the willingness to examine the concept drawing on the insights of TWAIL--Third World Approaches to International Law.  This project necessarily focuses on the state, the ideological constraints that frame and define the state and the international system derived from it.  By choosing to focus on the state Professor Seck concentrates on the evolution of a legal framework for the development of networks of legal governance structures that might not merely preserve the state, within its current ideological configuration.  A side effect of this project is important as well--it works to reframe the role of the state, now more de-centered within globalization's fractured governance systems, so that the state can continue to resist efforts to make it a less relevant actor, in function if not in form, within globalization. Several recent publications nicely frame the project, all of which are worth careful attention. They form a wonderfully symmetrical and coherent exercise in defense of the state against moves toward polycentric governance systems, in which states increasingly assume a private character and non-state actors assume the characteristics of sovereignty. She starts and ends in Canada and in the context of human rights relating to environmental and indigenous protections 

I start with Professor Seck’s article “Home State Responsibility and Local Communities: The Case of Global Mining.” Professor Seck attempts a sophisticated argument for extraterritoriality. Though I have little sympathy for this task, I found her arguments well crafted and, assuming agreement with the basic premises of her work, convincing. Those premises, of course, are now deeply contested, something that Professor Seck acknowledges, to her great credit. It is grounded on acceptance of certain presumptions that are central to the ideology of the state system: states as the highest form of legitimate political governance, non-state organizations as territorially sorted and subordinate to those states in which they are “naturalized”, the primacy of law as an instrument of state (political) policy, and a strong affinity toward harmonization among the community of states. Within that complex network of presumptions, Professor Seck artfully makes a case for extraterritoriality. The analysis is careful to suggest its limits, but is also quite good at weaving public and international law in ways that suggest the possibilities of extraterritoriality that is sensitive to the foundational premises of state power and the waivers of that premises inherent in the construction of international legal governance networks. Particularly noteworthy was the exportation of the concept of concurrent jurisdiction to the international sphere. It provides a way of avoiding the polycentricity inherent in globalization (a subject that Professor Seck begins to tentatively engage with in her latest work) while remaining true to the organizing premises of the state system. I am not convinced that a presumption of territorially based decision-making is justified. It provides a formal overlay to a functional construct that inevitably stands in tension with the formal legal project that is her principal objective. Yet it serves her purposes well in this article. Professor Seck is at her strongest here in making the case that extraterritoriality is permissible. She is at her weakest, but also at her most creative, in trying to develop the notion that states are obligated to project legislative power abroad. That notion is better developed in later work.

Professor Seck’s article, “Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?”, takes up the challenge left from her earlier work. Here she seeks to explore the theoretical perspectives that support unilateral home state regulation. She does this in a very imaginative way—adopting a bottom up approach and wedding that approach with insights from TWAIL, the Third World Approaches to International Law. The article starts with the good, bad and ugly (the cliché was irresistible) about extraterritoriality. The US Foreign Corrupt Practices Act represents the good. She uses FCPA to demonstrate the way that unilateral action by a very powerful state can act as a catalyst for significant changes in the normative values of the community of states, which in turn, can produce substantial changes in international law. This is the essence of bottom up internationalism that is currently very popular in a variety of forms, blending the instrumentalism of treaty law (the ultimate object) with the recognition of the power of organic development of customary law (the intermediate step from state action to customary international law). The bad is represented by the US Helms-Burton Act that was meant to facilitate regime change in Cuba but which illustrated the way that a powerful state could continue to affect international law even in the face of substantial opposition. In both cases unilateralism is explored as a basis for development of international law that then serves to bind even unilateralist states. But, of course, that reveals the ugly—the reality that when strong states can intervene unilaterally for good or ill, the aroma of imperialism (or at least parochialism, a subject that Professor Seck might have treated in more detail to add nuance to the imperialism analysis). Professor Seck does an excellent job of drawing from the critical sources and then developing those insights to new and useful effect. But Professor Seck remains realistic, noting the difference, for example, between theory (the formal ability of a large group of small states to act in concert unilaterally to affect the development of customary international law) and practice (the small likelihood of this to occur). While it might have been useful, in this regard, to consider an example that might actually have possibilities—the efforts of the ALBA alliance to effectuate small state concerted unilateralism in the service of counter-hegemonic customary international law making, where even the success of that effort remains clouded. On the other hand, the discussion of the connection between development and democracy was exceptional and well integrated into the greater argument. Professor Seck sees what might be the inevitable conclusion of this exercise, “It is difficult to conceptualize how subaltern voices cabin participate in the customary international law process or, . . . in the even more elusive framing of the customary international law process, especially if one accepts that customary international law is a regime designed by and for states.” (p. 601). But rather than following this to the insight that the logic of globalization might be used to cabin and de-center that system for the elaboration of alternative governance structures, Professor Seck continues her project of bending the logic of the state system to permit extraterritoriality, and indeed compel it under certain circumstances, without fatally undermining the logic of the state system itself (at least as elaborated since 1945).

For that purpose, Professor Seck’s melds her approach to international public law and human rights with the the fruits and insights gleaned from her work with SRSG Ruggie’s Protect, Respect and Remedy Framework, and its move forward to the creation of a set of Guiding Principles for Business and Human Rights, for which the Protect, Respect and Remedy framework was critical. The book chapter, “Conceptualizing the Home State Duty to Protect Human Rights” is a marvelous example. Much of the value of this work is in its addition of a layer of sophistication to the analysis of extraterritoriality from prior work. That would be sufficient. But the heart of the work is bent to the task of naturalizing a relatively intact notion of the state system within the larger framework of a common law of state behavior that now serves not merely as guide but as the framework within which state conduct legitimacy can be grounded. Specifically, Professor Seck constructs an excellent case for the transformation of extraterritoriality from a vehicle for state unilateralism to a mechanics for the domestication of international law. One gets around the problem of extraterritoriality by limiting its use to the enforcement of international law. Though Professor Seck may be overconfident in the ability of the community of states to develop a common interpretative framework even for the enforcement of international law domestically (consider in this respect the interpretation of gender rights in Bahrain and Canada), she does provide a basis for assertions of state power that also limit the parochialism inherent in that activity. That exercise is buttressed by an insightful deployment of the traditional levers of international law in new ways. Particularly interesting was the stretching of the delict doctrine, blended with complicity notions to push the envelope. For all that, of course, there is only so much that an artful deployment of emerging jurisprudence can take one within the parameters of a state ideology protective of its own normative logic. But her commitment to that system, and its modification to suit current realities remains undiminished. There is though, at least a peak at the other world—one that acknowledges a regulatory basis beyond the formal a construct of state and international public systems that are necessarily grounded in law (conventionally and narrowly understood). The corporate responsibility to respect human rights can stand on its own, but Professor Seck, would prefer the governance gap filled by public rather than private governance. An exploration of the consequences, though is an avenue that Professor Seck will pursue only in the last of her articles submitted for consideration, and even then, only tentatively.

(Pix (c) Larry Catá Backer 2012))

Stakeholders become more centered in this analysis in “Collective Responsibility and Transnational Corporate Conduct”. This is a particularly impressive work for its willingness to consider the simultaneous character of aggregations, like states and corporations, as both singularities and as collectives. That dual character adds complexity both to rules imposing obligation, and those imposing punishment for wrongdoing. But, of course, this analysis requires a fidelity to a premise that may be subject to interrogation—the idea that politics can be criminalized—or better put, that political acts can be managed through the criminalization of politics—including the politics of economic decision-making. That, more interesting discussion will wait for another day. There is sufficient complexity even within the premise that does not question the broadening of criminal law to all behavior. But it is the effort to use corporate culture as a basis for finding fault, conventionally understood, that is remarkable. As interesting is Professor Seck’s discussion of the contribution of the “Protect, Respect and Remedy” framework to the issue of the collective responsibility of states. These lead Professor Seck to a more robust argument for the imposition of collective responsibility of states to prevent wrongful conduct of those entities to which international law might assign it responsibility. Of course, that also deepens Professor Seck’s fidelity to the premises of a state system that necessarily assigns wrongdoing corporations to a “responsible state,” something that I have found unconvincing.

Professor Seck returns to TWAIL and the construction of a robust law of home state obligations to project national power abroad in “Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations." Professor Seck does an excellent job of field mapping, exposing the construction of governance gaps by a process of building definitional walls between international environmental law and the transnational effects of intra-territorial environmental actions. Professor Seck here explores an often-ignored area—how the integration inherent globalization makes even the most intensely domestic action potentially part of a global chain of activity. There was a bit of discussion around this point during the rounds of consultations leading up to the endorsement of the Guiding Principles, with a focus of bringing private project finance actors within its scope. Because of the single-minded focus of environmental law on harms, rather than on the actors that may have been involved in the facilitation of that harm, the international connection of what appears to be intra-territorial harms is overlooked. Here, of course, Professor Seck is hoisted on the petard of the state system to which she remains loyal. Territory here is the key to the analytical failure. But abandonment of the territorial principle is off the table—instead, Professor Seck must work around this ideological barrier for which she finds some of the insights of TWAIL useful. But this presents another problem that may require resolution later—the requirement that home states not merely project their regulatory power outward, but that they also project their policy internally. The issue, of course, is usually raised in the context of the drug trade—the United States may seek to intervene in Mexico but Mexico suggests that intervention assumes an imperialist character in the absence of US efforts to tackle the issue of demand within its territory. For Professor Seck, that balance of outward-inward is hinged on the control of cultures of consumption within home states.

The last article I consider, “Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights,” we are brought back to the issue of extraterritoriality, but now  grown more complex in the wake of the Guiding Principles, and the interventions of corporate stakeholders and the corporate bar.  The object is pragmatic as well. Having advocated as a matter of law fore the move toward acceptance of an obligation by home states to project power outward to enforce international norms against Canadian companies (at least), Professor Seck is confronted by the realities of an international normative framework reluctant to recognize the existence of home state obligations under international law. More interesting still is the well nuanced examination of the contradiction of engagement, one that requires full stakeholder participation for legitimacy but which, by that very participation almost ensures that movement toward progressive results will be blunted. The context in which this powerful analysis is based focuses on the Canadian experience from the SCFAIT Report to the Advisory Group Report of 2008, and its consequences in the failure of Bill C-300 in favor of the CSR Counselor. But what Professor Seck may see as failure, others might see as further evidence of a strengthening private sector governance field, one in which international standards may be interposed on companies, willing or not, by their dependence on consumer and investor markets. The analysis of the role of business and corporate counsel is particularly welcome and particularly well executed. Here we see an analysis more mature and nuanced, and more powerful as a result. It engages the difficulties of engagement within the practical realms of politics. I will be looking forward to an article in which these tensions are examined more closely under TWAIL. In concluding that the search for legislated remedy or internationally binding rules may be unattainable, Professor Seck has opened herself up for an exploration of the possibility that the solution lies in the Second pillar (corporate responsibility) rather than in the first (state duty). I eagerly await her future work in that area.

(Pix (c) Larry Catá Backer 2012)

In the end, Professor Seck has developed a strong argument for extraterritoriality, but ironically, one that draws its greatest strengths from its utility in promoting a harmonizing internationalism rather than from arguments that would seek to excuse the assertion by states of a power to project the idiosyncrasies of their domestic legal orders onto or within other states. But, greater irony still, by recasting extraterritoriality as itself legitimate only as an instrument of internationalism, it effectively contributes to the reduction of the authority of states beyond the confines of their own territory for any action other than those that might further international law and the norms of the emerging international order.  Within that construct, the Guiding Principles begin to play a more decisive role.  Though formally only soft law, and merely endorsed by an organ of the United Nations, it reflects an international consensus that might begin to play a greater role in the development of substantive norms that states may find themselves obligated to enforce beyond their borders. But even project faces challenges--the principal one among which may be the difficulty of harmonizing interpretations and application of international law int he absence of a remedial structure capable of harmonizing interpretation across states.  The Guiding Principles provide both a recognition and a small attempt at conceptualizing a structure for this harmonization project.  But there remains a long way to go. My sense is that what Professor Seck has amply demonstrated is not merely the power of concepts like extraterritoriality to be used effectively to broaden and solidify international law within the domestic legal order of states, but also to demonstrate the limits of those efforts within a world marked by the rise of non-state governance authority that reduce the centrality of the authority of the state.  It is the corporate responsibility to respect human rights, as much as to the state duty to protect human rights, that will have to be confronted on its own terms if the project of global construction of relatively well harmonized human rights standards for economic activity are to be realized.

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