Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State
Larry Catá Backer
Abstract: Two significant changes in the organization of power became visible after the 1950s. On the one hand, states were becoming less solid; the constitution of states, and of state power, formerly quite distinct in their forms and secure within their territories were giving way to a polycentric order in which national territory no longer defined and contained a compulsory and singular legal order sitting atop a hierarchy of governance. On the other hand, individuals were becoming more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics and data. These two trends, the dissolution of states and the constitution of the mass population, have had a noticeable impact on law and governance generally. These impacts are particularly noticeable in the governance of the human rights effects of economic activity. This paper considers how the boundaries of statehood and of the reconstitution of sovereign authority in the masses has transformed both the manifestation of law within states and the constitution of governance at the supra national level. To that end, the paper considers the manifestation of these two macro trends in the context of the governance of business and human rights regulatory regimes. For the first the paper considers the extent to which the laws of multiple domestic legal orders may operate simultaneously within a state. The specific context will be the Republic of South Africa. For the second, the paper considers the rise of non-state organizations where the governance of business is negotiated. The specific context will be the public forums of the U.N. Working Group of Business and Human Rights. In South Africa, multiple regimes of governance rules for the human rights conduct of business operate simultaneously in South Africa, as MNEs and their value chain partners may be subject simultaneously to national law, the laws of the home state of the controlling enterprise (often resident in an OECD state or China), and the special regimes of bilateral and multilateral treaties on investment and taxation. The legal territoriality of South Africa, then, becomes a far more complex terrain, than its geographic borders might suggest. With the Working Group, one sees the establishment of an intangible territory constituted from out of the jurisdictional authority of the members of a sort of global estates general in which, for the individuals that once might have represented themselves or their social class, now large organizations incarnate mass interests, constituted from out of the aggregation of the data that suggest group preference and desire. The boundaries of statehood have indeed been redefined. Where states once existed, territories serve as bowls in which several national legal orders may operate through individuals and entities. Where international organizations once served the community of states, they now serve as vessels that contain mass interests re-incarnated as representative organizations that produce or negotiate formal law and societal norms for self-application. Within this context, simpleminded projects, and in particular the move toward a single comprehensive public law treaty on business and human rights becomes an anachronistic exercise.
GLOBAL HUMAN RIGHTS LAW AND THE BOUNDARIES OF STATEHOOD Colloquium hosted by the Stellenbosch Institute for Advanced Study Conveners: Hans Lindahl & Daniel Augenstein (Tilburg Law School)
I. Scientific Content
One of the virtues of the more recent ‘business and human rights’ debate – most prominently the UN Guiding Principles on Business and Human Rights (UNGPs) endorsed by Human Rights Council in June 2011 – is that it has documented in considerable detail the significant impacts that global business operations have on human rights protection in the international legal order of states. On the one hand, global business operations erode the substance of legal authority that states wield over their territory, thus diminishing their ability to protect human rights within their own borders. On the other hand, they amplify the human rights impacts of states’ business-related domestic laws and policies on individuals in other states, and enhance states’ opportunities to use their ‘corporate nationals’ to pursue foreign policy objectives. From both perspectives, the exposure of the international order of states to the human rights impacts of global business operations appears to undermine the normativity of the state-centred conception of international human rights law. In response, many approaches to ‘global’ human rights protection suggest – whether explicitly or implicitly – a radical departure from human rights law’s state-centred heritage. As human rights impacts escape the state’s public and territorial authority, new private and trans-national human rights regimes emerge that fly under the radar of the state legal order yet contribute to further undermining the hegemony of its (constitutional and international) human rights law. The principal aim of the present colloquium, by contrast, is to inquire how legal human rights responses to violations committed in the course of global business operations transform the boundaries of statehood constitutive of the international order of states. According to the received wisdom of international law, each state is primarily entitled and obliged to respect, protect and fulfil the human rights of individuals located on its own territory in relation to acts of its own public authorities. It is therefore suggested that, as a starting point of inquiry, the boundaries of statehood in relation to international human rights law may be usefully conceptualised on the basis of two sets of distinctions: between the public and the private; and between the territorial and the extraterritorial. Moreover, both sets of distinctions appear intimately connected: the boundaries between the ‘public’ and the ‘private’ are determined in relation to a political collective that is internally bounded by the territorial state legal order and externally re- presented in states’ international relations with each other.