Business and Human Rights Part XXII--The State Duty to Protect

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 

For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation  framework. 

Part XXII: Human Rights Due Diligence--The State Duty to Protect.

While the Second Pillar Corporate responsibility to Respect human rights is the most innovative and potentially more transformative of the three pillar framework, the First Pillar State duty to protect human rights provides the foundational legal basis within the domestic legal orders of states for the vindication of international human rights norms. I have briefly suggested the relationship between pillars.  Larry Catá Backer,  Business and Human Rights Part II--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 2, 2010.  In discussion of the First Pillar obligations of states, the SRSG has focused on the legal obligations of states derived from international law.  See Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights:  Toward Operationalizing the "Protect, Respect, Remedy" Framework, Summary, U.N. Doc. A/HRC/11/13 (April 12, 2009).  The duty to protect is grounded in international human rights law (id., at par. 13).  It does not derive directly from national law, including the constitutional traditions of the state, except to the extent that such national constitutional traditions are compatible with international norms.  Taken together these provisions of applicable international law "suggests that the State duty to protect applies to all recognized rights that private parties are capable of impairing, and to all types of business enterprises."  (Id.). See, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises - Addendum - Summary of five multi-stakeholder consultations, A/HRC/8/5/Add.1 (April 23, 2008) for a listing of applicable law and commentaries thereof.   International law, in turn, includes two sets of obligations through treaty: (1) to refrain from violating a set of enumerated rights of persons within the national territory, and (2) to ensure the enjoyment of such rights by rights holders.  Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights:  Toward Operationalizing the "Protect, Respect, Remedy" Framework, Summary, U.N. Doc. A/HRC/11/13 (April 12, 2009), at para. 13. 

These duties have a vertical and horizontal dimension.  They apply vertically to govern the relations between states and others within the national territory.  And  they apply horizontally to apply to manage the relations among non-.state actors within the territory of the state.   (Id.).  While the vertical dimensions are well understood in international law--the horizontal dimension represents something that is newer.  Even within the bounds of European law, for example, in the construciton of the jurisprudence of "direct effects" of EU directives, the European Court of Justice had resisted for a long time the extension of the vertical effects of the doctrine to include horizontal relations between non-state actors.  See, Takis Tridimas, "Black, White and Shades of Grey:  Horizontality of Directives Revisited," in Harmonizing Law in an Era of Globalization 99-128 (Larry Catá Backer, ed., Durham, North Carolina:  Carolina Academic Press, 2007).

This analogy is important  within the conceptual framework of the duty to protect.  The SRSG emphasizes the vertical elements of  the transposition of international obligations to regulate the conduct of enterprises.  "That is, States are not held responsible for corporate related human rights abuses per se, but may be considered in breach of their obligations where they fail to take appropriate steps to prevent it and to investigate, punish, and redress it when it occurs." Id., para. 14.  Thus understood, international law, to the extent it speaks to rules covering the behavior of corporate conduct, might appear to serve the same purpose as directives within the European Union governance system.  "Within these parameters, States have discretion as to how to fulfill their duty."  Id.

And indeed, the drawing of a parallel to the governance framework of the European Union suggests a possible and interesting conceptual tension inherent in the First Pillar duty to Protect.  Simply stated, that tension pits  the assumption of the supremacy of international law (and the resulting legal obligations derived therefrom) against traditional notions of the supremacy of constitution and constitutional traditions of a State within which international law obligations must be naturalized.  This tension is better understood in two parts.  First, the tension can be understood as one touching on the supremacy of international law over incompatible domestic legal measures.  The second, and more difficult tension, can be understood as touching on the supremacy of international law (and its human rights obligations) over incompatible provisions of domestic constitutional law.

These issues have been most extensively developed within the jurisprudence of the European Union system.   The issue of the supremacy of Community Law over incompatible domestic law has over a long period of time tended to be accepted as a basic feature of membership within the E.U.  See, e .g.,  Costa v. Ente Nazionale per L'Energia Elettrica (ENEL),  Case 6/64, [1964] ECR 585. In many Member States, the principle of the supremacy of Community law is accepted as a matter of domestic constitutional law as well--at least with respect to incompatible national legislation.  See, e.g., SA Rothmans International France and SA Philip Morris France, Rec. Leb. 1992.81 [1993] 1 CMLR 253, 255 (C.E. Feb. 28, 1992); Orfinger v. Belgium, Belgian Conseil d'Etat, Caseno. 62.9222, A.61.059VI-12.193, 200 Comm. Mkt. L. Rep. 612 (2000) (Nov. 5, 1996) (Supremacy of Treaty Law within Belgian constitutional order  until Belgium renounces membership in the EU or renegotiates terms of membership).  In some cases, the Member States have re-constructed their constitutional orders to explicitly accommodate Community Law Supremacy.  See for example, German Basic Law Art. 23; Constitution of the French Republic 88-1. 

But, the issue of the nature and extent of the primacy of Community law within the European Union, especially where such primacy may contravene basic principles of the constitutional order of a Member State has proven a difficult one in theory. Member States appear to reserve to themselves an authority to judge the extent of that authority, especially where it might affect the fundamental sovereign character of the state, or the baisc human rights and organizational provisions of its constitutional order.   See, e.g., Bruner v. European Union Treaty, (The Maastricht Judgment) German Constitutional Court, second senate Case 2 BvR 2134/92 & 2159/92 1 CMLR 57, 1993 WL 965303 Oct. 12, 1993; In re Applicxation of Wunsche Handelsgesellschaft (Solange II), 2 BvR 197/83, 73 BVerfGE 339, [1987] 3 CMLR 225 (Fed. Constitutional Court, second senate, Oct. 22, 1986).  Most famously, perhaps, the Irish Supreme Court noted, "With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right, the only matter which could be properly capable of being weighed in a balance against the granting of such protection would be another competing constitutional right."  Society for the  Protection of Unborn Children (Ireland) Ltd. v. Grogan, Irish Supreme Court, [1989] IR 753, [1990] 1 CMLR 689 Dec. 19, 1989 (per Finlay, C.J.). On the other hand it has proven to be possible to sidestep these conceptual questions through the adoption of a functional approach to the issue--combined with just in time amendments to Member State constitutions or Treaty accommodation the constitutional sensibilities of Member States. 

But it is not clear that beyond the European Union and its deep system of collaborative internationalism, states will be willing to read the State duty to protect as importing an obligation to (at least in good faith) accept the supremacy of international law generally, or more specifically against  an incompatible provision of international law.  Less likely is a willingness, as a matter of constitutional policy, for states to commit to a policy of collaborative constitutionalism requiring attempts a constitutional revision or interpretation to ensure conformity with applicable international standards.   An exception, though a telling one is South Africa.  The South African Constitution famously requires its courts to consider international law in the interpretation of its own human rights provisions.  South African Constitution, art. 39.  That approach, however,  certainly would be rejected out of hand in at least two  powerfully influential states--the United States on the basis of its current interpretation of its constitutional order (e.g., Medellín v. Texas, 552 U.S. 491 (2008) and the People's Republic of China on sovereignty grounds. Premier Wen: China's climate action not subject to international monitoring, China View, Dec. 18, 2009. For a more cynical view, see, Mark Lynas, How do I know China wrecked the Copenhagen deal? I was in the room, The Guardian UK, Dec. 22, 2009.  On the other hand, most states accept the proposition that international law, however transposed into the domestic legal order, are (or ought to be) binding as a matter of domestic law.   In some, but not all constitutional order, international law, transposed by operation of law or action by an appropriate organ of state is deemed superior to domestic legislation.   See, e.g., Constitution of the French Republic, Art. 55 ("Duly ratified or approved treaties or agreements shall, upon their publication, override laws, subject, for each agreement or treaty, to its application by the other party."); German Basic Law, art. 25 (primacy of international law). 

Where does that leave the First Pillar duty to protect human rights?  At a minimum, it might suggest that the duty is limited in the first instance, in some states, by the overriding duty of state organs to give effect to the provisions of their constitution and to vindicate constitutional rights and duties thereunder in accordance with the interpretive traditions of that constitutional order.  That may sometimes create incompatibilities with international law obligations.  It also suggests that those incompatibilities grow within constitutional orders that have rejected one or more instruments of international law or obligation central to the global human rights project.  The United States, for example, has declined to ratify the International Covenant for Economic, Social,  and Cultural Rights.  Several ratifying states have attached sometimes significant reserves on the internal application of the Covenant., grounded in the application of the superior provisions of domestic constitutional law  See, e.g., Chinese reservation ("The application of Article 8.1 (a) of the Covenant to the People's Republic of China shall be consistent with the relevant provisions of the  Constitution of the People's Republic of China, Trade Union Law of the People's Republic of China and  Labor Law of the People's Republic of China ").  This will pull strongly against a strong harmonization of international  human rights law harmonization. Yet it also suggests that international norms will have some impact on the conduct of states.  It also suggests the importance of the constitution and elaboration of a coherent body of international human rights law as a foundation for the elaboration of customary international law that is critical to the Second Pillar responsibility of corporations to respect human rights beyond the more technical and constrained state duty to protect as enforced, in potentially varying ways, within the territorial borders of states.

These tensions suggest repercussions at the state level.  The SRSG has noted two important repercussion issues relating to the State duty to protect.  The first touches on the obligation of state sot project their laws outside their territories and onto the effects of home state entities in host states. (Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights:  Toward Operationalizing the "Protect, Respect, Remedy" Framework, Summary, U.N. Doc. A/HRC/11/13 (April 12, 2009), at para.  15-16) The second looks to the nature of the internal transposition of international obligations--understood in terms of vertical and horizontal incoherence.   (Id., para. 17-19).  The SRSG suggests that the problems of extraterritoriality and legal incoherence has been ameliorated by the internationalization of law--effectively harmonizing legal obligations and thus reducing the effect of projections of national power abroad (since all law id effectively similar in effect) (Id., para. 20), andthrough the harmonizing effects of soft law regimes (Id., at 21). 

Extraterritorial application is a reasonable response of high human rights value states to deficiencies in the incorporation of the obligations of First Pillar duties in other states.  And it may be reasonably grounded on an extension of legal duties of the conduct of national corporate citizens when they travel and engage in activities abroad.  The obligation is not for the benefit of the host state, but rather is deemed to be essential to the internal ordering of the state and the management of the conduct of its citizens.  Yet to some extent, extraterritoriality of this sort also smacks of "status" legislation that has tended to be disfavored in the modern era within constitutional systems like that of the United States.  The SRSG suggests that extraterritorial projects of human rights duties "can provide much-needed support to host States that lack the capacity to implement fully an effective regulatory environment on their own."  Id., para. 16. However, extraterritorial application of home state law can easily be (mis?)characterized as indirect projections of state power abroad.  When such projections are directed at states with a history of colonial rule, sensitivities may make such projections not merely unpopular but unlawful within the territory of the host state.   Yet the neo colonialist argument has been used selectively.  It is easily applied to former colonial powers asserting extraterritorial powers, but tends to be overlooked when the projecting power is  a state that can style itself as still "developing."The SRSG has noted that the issue of the lawfulness of extraterritorial legislation remains unsettled as a matter of international law.  Id., at para. 15.  Where the State itself is engaged in business abroad, the SRSG suggests that there are "strong policy reasons for home States to encourage their companies to respect rights abroad,.  Id. at para. 16.  And indeed one might suggest that in those cases the State duty to protect necessarily embraces all state activities domestically and elsewhere and in whatever form conducted. 

Legal incoherence remains a significant impediment to the realization of a State's First Pillar duty to protect huamn rights.  "There is 'vertical' incoherence where Governments sign on to human rights obligations but then fail to adopt policies, laws, and processes to implement the,."  Id., at para. 18.  But there is also vertical incoherence where states decline to sign up to important instruments of international human rights, or sign onto them with strong reservations.   Vertical incoherence is tied significantly to the legal framework within which international norms can be internalized within a domestic legal order, a subject discussed above.   "Even more widespread is 'horizontal' incoherence, where economic or business focused departments and agencies that directly shape business practices . . .conduct their work in isolation from and largely uninformed by their Government's human rights agencies and obligations."  Id., para. 18.  Horizontal incoherence is especially troublesome with respect to the regulation of corporations within domestic legal orders.  See, e.g., Larry Catá Backer, Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights Under the UN SRSG Mandate, Law at the End of the Day, Jan. 4, 2010.

The SRSG's approach to mitigating this problem is both subtle and indirect.  He suggests programs of legal and policy harmonization at the supra national level with "trickle down effects." harmonization, from public transnational bodies producing increasingly influential soft law systems.  These included harmonization of an international farmework for corporate criminal activity, standardization of norms for judging corporate complicity in the human rights violations of others, the importance of corporate culture in the context of civil and criminal prosecutions and its legal effects, and the willingness of states to permit individuals to seek private remedies against corporations through re-interpreted provisions of state law. Id. at 20.  The SRSG also noted the rising importance of soft law efforts of entities like the OECD in the construciton of policy approaches to legal harmonization.  Benchmarking organizations and standards, and the official assistance in that context, are said to encourage the adoption of corporate social responsibility policies that might produce legal effects cognizable within the First Pillar.  Id., para. 21.  These approaches may provide a normative foundation for state action.  More likely, they may serve as bridges between the First Pillar duties of states and the Second Pillar responsibilities of corporations.  To that extent, the bridge building of such efforts might go more successfully toward reducing regulatory incoherence between the First and Second Pillar than between or within states' legal systems.