Thursday, January 01, 2015

A Wrinkle on the State Duty to Protect Human Rights, When States are also Religious Bodies: Can Both the State Duty to Protect and the Corporate Responsibility to Respect Human Rights Apply Simultaneously?

(Pix (c) Larry Catá Backer 2015)

I have been considering some of the weaknesses of the state duty to protect human rights in the context of the three pillar Guiding Principles for Business and Human Rights (see, e.g., here, here, here, here, and here). The state duty to protect remain incoherent--even as the content of international norms becomes more comprehensive and coherent in its own right. The move toward extraterritorial application of the law of some (usually home) states to the legal situation of objects of human rights norms within host states presents even graver problems within an international system ostensibly grounded in the notion of equality among states.  And there has been a marked inclination to use the state duty to minimize the effectiveness of the corporate responsibility to respect human rights which itself adds to the negative utility of the state duty. (See, e.g., here).

Beyond the well known problems of the state duty to protect human rights within an international legal order founded on the power of states to determine and control the extent to which they would obligate themselves under international instruments, the consequences of the legal personality of religious bodies presents an interesting wrinkle on the nature and extent of the duty to protect human rights. This is particularly acute with respect to the obligations of the Vatican--both a conventional territorial states (subject to 1st pillar obligations) and an enormous and enormously powerful transnational religious organization (whose obligations are grounded, if at all, only under the 2nd pillar responsibility to respect human rights). 

The possibility of recognizing dual (polycentric, e.g., here) sets of obligations within a single enterprise is not unusual, though it does manifests itself in a unique way with respect to territorial states that are also institutionally self constituted religious enterprises.  The issue has been at the center of the problem of the state owned enterprise existing uncomfortably between the state duty to protect (as an instrumentality of a state) and the corporate responsibility to respect (as a wholly commercial enterprise acting like other commercial enterprises in global markets).  

The usual reaction among dual character enterprises--is to insist on choosing to be covered by one or the other of the substantive pillars of the Guiding Principles.  That has been the position of the Vatican as expressed in the article set out below (Carol Glatz, Vatican Warns Against Misinterpreting International Law, Human Rights, Catholic News Service, Sept. 26, 2014). As a matter of the extent of state obligations under the first pillar, the Vatican position, of course, is perfectly plausible and quite conventional. Yet that narrow view tends to obscure a larger truth inherent in the multi-pillar framework of the Guiding Principles. While the Vatican, as a state, owes no greater duty than that of other states, the Roman Catholic Church, as an enterprise whose operations may produce human rights detrimental effects, ought to have a responsibility to respect human rights no less obliging than those imposed on other enterprises. 

That the Roman Catholic Church is a religious rather than an economic organization ought to make little difference--unless the object of the Guiding Principles were meant to be constrained the formal structures of organization rather than by the functional effects of that organization form.   The issue is important for defining the obligations of institutionally autonomous religious bodies--like the Roman Catholic religion.  But it is perhaps even more important in the context of the obligations of states and their state owned enterprises. But this is an area that remains under explored, and to some extent, may be resisted by entities more content to seek refuge within the more advantageously constructed pillars of the Guiding Principles than to explore the coherence of the multi-pillar structures of the Guiding Principles. At the same time, international organizations do an equal disservice to the Guiding Principles when they insist on conflating the state duty to protect and the corporate responsibility to respect human rights.  The two pillars are not interchangeable--they focus on quite distinct circumstances and regulatory frameworks, To use one to bootstrap another does a terrible disservice to the organization of the Guiding Principles--in that respect at least, Vatican officials are quite correct.  But avoidance of conflation is no excuse for avoiding responsibility, and that is the error of states that seek to insulate their state owned enterprises, or religious organizations that seek to avoid their organizational responsibilities to respect human rights in their operations.  

Vatican warns against misinterpreting international law, human rights
Sept. 26, 2014
By Carol Glatz
Catholic News Service

VATICAN CITY (CNS) -- The Vatican formally criticized a U.N. committee's "grave misunderstanding" of state sovereignty and reiterated its concerns over "controversial new expressions" that threaten the unborn and religious freedom.

By insisting the Holy See should enforce the compliance of Catholics all over the world with international treaties signed by the Vatican, the U.N. Committee on the Rights of the Child "offers a controversial new approach to 'jurisdiction,' which clearly contradicts the general understanding of this concept of international law."

"The Holy See, in accordance with the rules of international law, is aware that attempting to implement the C.R.C. (Convention on the Rights of the Child) in the territory of other states could constitute a violation of the principle of noninterference in the internal affairs of states," the Vatican said in a formal written response to the U.N. committee.

The Vatican published its official response to the U.N.'s committee on children's rights Sept. 26 on its website.

On Feb. 5, the U.N. committee released its "concluding observations" and concerns as part of its ongoing process of monitoring states parties' adherence to the treaty; the Vatican ratified the children's rights treaty in 1990, making it one of the first countries to do so.

The six-page response reiterated the same concerns Vatican representatives expressed during an all-day testimony Jan. 16 before committee members in Geneva and concerns Jesuit Father Federico Lombardi, Vatican spokesman, articulated Feb. 7 after the committee published its observations.

One of the committee's major criticisms was that the Holy See and the pope, as head of the church, can and should order Catholic dioceses and religious orders around the world to implement all the policies of the U.N. Convention of the Rights of the Child, which includes provisions against the sexual abuse of minors.

The Vatican always has insisted that church law requires bishops and religious superiors to obey local laws on reporting suspected crimes.

In its Sept. 26 comments, the Vatican wrote that the obligations stipulated in the U.N. conventions it signs apply only to the 108-acre territory of Vatican City State, Vatican citizens and "where appropriate, the diplomatic personnel of the Holy See or its officials residing outside the territory of Vatican City State."

In fact, the Vatican put a laicized papal ambassador, former Archbishop Jozef Wesolowski, under house arrest Sept. 23 as he awaits a criminal trial for the sexual abuse of minors while serving as nuncio in the Dominican Republic.

In its written comments to the U.N. committee, the Vatican said, "The Holy See does not ratify a treaty on behalf of every Catholic in the world, and therefore, does not have obligations to 'implement' the convention within the territories of other states parties on behalf of Catholics," who are and should be subject to the national laws of the countries they find themselves in.

"Attempting to implement the C.R.C. in the territory of other states could constitute a violation of the principle of noninterference in the internal affairs of states," it said.

The Vatican said all states parties should be concerned with "the grave implications of this erroneous approach" by the committee, which is suggesting parties must be committed to implementing the treaty through all its individuals and institutions living and operating around the world.

Other concerns the Vatican had with the committee's "concluding observations," include "controversial new expressions not contained in the convention and related principles, which contradict the ordinary meaning of the words in the text."

It said it is "completely unacceptable" that the committee advocate for abortion when the convention's original language says children require legal protection "before as well as after birth," have a right to life and should receive "prenatal and postnatal health care."

The Vatican disagreed with the committee's observations that "subjective lifestyle choices and attractions" should be promoted as "a matter of 'rights.'"

By insisting the church change its teachings, reinterpret Scripture and amend canonical laws to reflect current trends, the committee is infringing on "matters protected by the right to freedom of religion," the Vatican said.

Saying the church's position on certain issues justifies discrimination is applying the important principle of nondiscrimination "in an unprincipled way, namely as a sword against religious freedom," it said.



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