Business and Human Rights Part XXVII--On the Limits of 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 XXVII: On the Limits of the State Duty to Protect.

The SRSG has reiterated in his reports the centrality of the state in th construciton of the Protect-Respect-remedy framework. The basis of that centrality is grounded both in the strength of the state system, which is based on the idea that states remain the highest source of governance authority within a specific territory, and that such governance authority is expressed through law.  Law, in turn, is regarded as the supreme form of governance instrument.   Yet even this state supportive position has encountered resistance among states.  The problem is not the acceptance of the principle of the supremacy of states, the authority fo their government and their law systems.  The problem, instead is intimation, again made by the SRSG from the time of his 2007 Report, that the obligation of states ot protect human rights arises not from their own good offices, but from the strictures of the binding command of international law.  While states appear willing to bask in the glow of their own omnipotence to order their internal affairs, they are less eager to extend that omnipotence to inter-governmental governance efforts elaborated among the members of the community of states and expressed as one or another instrument of international governance. 

This was made very clear to the SRSG in a letter received from the UK Foreign and Commonwealth Office, Daniel Bethlehem QC, Legal Advisor, UK Foreign and Commonwealth Office, Letter 9 July 2009.  "The United Kingdom agrees that certain treaty provisions may impose an express or implied duty on States to protect against non-State human rights abuses.  However, it does not consider that there is a general State duty to protect under the core United Nations human rights treaties, nor that such a duty is generally agreed to exist as a matter of customary international law."  Id. But the objection was not merely to the notion that there exists a general obligation under international law .  It extended as well to the specifics of the precise treaty obligations a state was inclined to consider binding internally.  Mr. Bethlehem conceded a state duty to protect against non-State abuses of specific rights, but only to the extent that a particular treaty so provides.  "The scope of those duties will depend primarily on the wording of the treaty provision in question and their proper interpretation."  Id.  An interpretation, of course, that each state reserves to itself, subject to the reservations they have affixed to their ratification of a treaty as well as to the constraints of their constitutional orders.  Mr. Bethlehem appears to blame the Human Rights Council for the SRSG's enthusiasm.  Id.  And, in any case, the United Kingdom has yet to see "sufficient evidence of state practice or opinio juris to indicate that there is a general duty to protect against human rights abuses by non-state actors.  Id.

Mr. Bethlehem has helped highlight the importance of the Second Pillar of the framework.  He reminds us that even the most aggressive acknowledgment of state power will tend to flounder on state ideology with respect to its relationship to the international community.  The United Kingdom, like the United States, tends to view its own domestic power as substantially unlimited by the rules it might freely choose to undertake constructed from outside the national territory or its governance organs.  In that reality, international standards are more likely to be respected by corporations than protected by even the most developed states.  Polycentricity produces a greater coverage in both scope and form of governance.  Irony indeed!