Monday, March 14, 2016

Just Published: "Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State"

 (Pix (c) Larry Catá Backer 2015)

Representation as the foundation of governance legitimacy is in crisis. The issue of representation hangs like a sword of the heads of those institutions and mechanisms that increasingly seek to assert governance power over and for individuals.  Governance organizations--states, international organizations and non-state actors--all seek to act as representatives of individuals.  Yet increasingly the connection between the individuals represented and the apparatus of state, institution or enterprise is increasingly tenuous.  

In states legislators and their parliaments increasingly serve  and represent outside powers.  That has been made quite clear in the context of the Greek bailouts and the Bangladesh responses to the Rana Plaza factory building collapse.

In international organizations, the representation of individuals through states has become clouded through the rise of managerial classes and the distortions of unequal state power.  The individual becomes an object with no direct voice in those activities undertaken for their benefit.

In non-state actors, the individual is fully abstracted and commodified. There, even the fig leaf of indirect consent to presentation disappears in the face of enterprises and non-governmental organization who on their own declare their authority to represent the interests of individuals to states and international organizations.    

In "Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State", just published in the Indiana Journal of Global Legal Studies 23(1):61-94 (2016) I explore these issues and the consequences for national and transnational governance. The article appears as a contribution to an excellent symposium edited by Daniel Augenstein and Hans Lindahl--Global Law and the Boundaries of Statehood (more about which in a later post).

The abstract and introduction follow. The pre-publication draft may be accessed here.

Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State (Pre-Publication Draft here)

Larry Catá Backer«

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became 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. On the other 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, gave 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. These two trends have had a noticeable impact, not just on law and governance generally, but more importantly, on the way that representation is understood and practiced. Today, the representation of individuals has become more problematic at the national level as it gives way to other bases of sovereign power derived from international norms. At the international level the individual loses representative capacity. The will of the consensus of states has supplanted that of the citizens of the state in ways that may undermine the legitimacy of governance systems. This paper considers the problem of representation within these intertwined phenomena. To that end, the paper considers the manifestation of these two macrotrends in the context of the governance of global business and human rights regulatory regimes. In the context of the first trend, the problem of who legitimately represents is considered within international organizations producing norms for transposition to the domestic legal orders of states. The specific context will be the public forums of the U.N. Working Group on Business and Human Rights. In the context of the second, the problem of what is the object of representation is considered at the national level, now the site of transposition of international norms. The specific context is the rise of multiple legal regimes each with a fidelity to a distinct representational community. The boundaries of statehood have been redefined and with them the nature and object of representation. 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.

Tyrant, avoid my sight,
Monster compact of spite,
Who rules by fear and force!
None can deserve a throne
Who worships hate alone,
Whose heart knows no remorse.

In Handel’s opera Giulio Cesare in Egitto, these words are uttered by a disgusted Caesar, Rome’s leader, to the representatives of Ptolemy, mere king of Egypt, who, to court favor, presented Caesar with the severed head of Pompey Magnus, who had sought sanctuary in Egypt, oblivious to the fact that the Roman leaders, Caesar and Pompey, had reconciled. The decapitation of a Roman by an Egyptian on Egyptian soil sets in motion a course of events that eventually results in the representative of Rome deposing the king and incarnation of Egypt,[2] installing another more to his liking. The aria, and the underlying story, brings vividly to life the traditional and customary understanding, the power and complexity, of representation and legitimacy within governments, themselves arranged within hierarchies of power. Legitimacy fuels the outrage of Caesar. Tyranny, monstrosity, fear, force, etc., are all markers of illegitimate governance, the practice of which strips Ptolemy of authority[3]—for authority is lacking in those who do not legitimately represent.[4] Together, these normative constraints, complicated by their operation within multilevel authority structures, present a great challenge to the organization and implementation of power in contemporary emerging global orders.

This challenge is the central element of this essay: the problem of representation and legitimacy, of who serves which volonté générale.[5] This problem now haunts national, and increasingly international, public and private institutions that seek to wrap their actions in the legitimacy of “representation” to assert authority on behalf of an aggregation of represented “others.” This essay considers how the boundaries of statehood and of the reconstitution of sovereign authority in the mass state have transformed representation, both as to the representative herself (who is legitimately representative?) and as to the persons and things being represented. This essay approaches this inquiry by considering legitimacy and representation within a grid bounded by the changing nature of the individual represented and by the changing environment of the national representative, both of which affect the capacity of particular persons or institutions to represent, and the scope and character of what is to be represented.

Part I briefly sets out a context within which to consider the problem of representation in the construction of global business and human rights norms. That context identifies two of the normative and structural trends within which representation is understood and the markers of legitimacy are attested. The first is the changed character of the individual, who is being transformed from person to data and from autonomous individual to part of an aggregated mass. The second is the changed character of the representation, from a focus on the popular will, however defined and identified, to an obligation of fidelity to an international normative will developed through public and private functionally differentiated organizations.

The essay considers the effect of fracture and reconstitution on representation in the context of the governance of business and human rights regulatory regimes,[6] and principally the framework developed through the United Nations (U.N.) Guiding Principles for Business and Human Rights (UNGP).[7] It examines recent efforts toward extending and harmonizing global regimes of business and human rights governance as they manifest within emerging governance orders inside and beyond the state. Part II looks to the representation of individuals and communities within international public and private governance orders, which have effects within the domestic orders of states but also constitute nonterritorial governance communities beyond the state. Its focus is the legitimacy-challenging issue of representation within these fractured territories of nonstate governance orders whose borders are neither fixed nor physical. To that end, the paper considers the rise of nonstate organizations where the governance of business is negotiated. The specific context will be the public forums of the U.N. Working Group on Business and Human Rights.[8]

Part III examines the challenge of representation as the crucial destabilizing force for representational legitimacy in its second aspect—the representation of law within states whose engagement with law is now complicated by the logic of the emerging global system of public and private governance.[9] Its focus is the legitimacy-challenging issue of representation in these abstracted terrains of the contemporary state, which receive, as an abstracted general will of the international community, the norms of nonstate governance orders in which the individual is only abstractly represented. In this context, 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 Bangladesh and the regimes of domestic and international governance for business and human rights to which it is subject. In Bangladesh, multiple regimes of governance rules for the human rights conduct of business operate simultaneously, as multinational enterprises (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 China or in a member-state of the Organisation for Economic Co-operation and Development (OECD)), and the special regimes of bilateral and multilateral treaties on investment and taxation. The Bangladeshi citizen is faced with multiple representations, all of which assert authority over her life, and few of which represent her. Each, though, might claim to act for her or on her behalf. The European Union, representing its Member States and their citizens, may exercise authority over enterprises operating in Bangladesh, including regulation of the relationship between these entities and those residents in Bangladesh. The enterprises themselves, representing their shareholders and customers, may assert authority over the Bangladeshi’s employer and determine the quality of the conditions in which she works and lives. Groups of enterprises representing industry may assert authority to determine standards (for example, for building inspection of factories) that are true to international standards and are imposed on Bangladesh. Accords reached with the United States and the European Union, each representing their respective populations, may compel Bangladesh to reform its labor laws to conform to standards deemed legitimate without a corresponding consensus among the Bangladeshi population. The legal territoriality of Bangladesh, then, becomes a far more complex terrain than its geographic borders might suggest. One sees clearly here the consequences of the operation of global markets on the organization, identity, and authority of general will, complicating representation in the face of distinct communities asserting authority and effectively inverting the issue of representation and legitimacy. The consequences for the legitimacy of law are profound. Law is domestically legitimate only to the extent that it embodies a variable set of the general will of communities beyond the state but acting within it. Mass democracy is legitimate only in conformity to this higher popular will.

« Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University. First presented at the Global Human Rights Law and the Boundaries of Statehood Colloquium hosted by the Stellenbosch Institute for Advanced Study, Stellenbosch, South Africa; conveners Hans Lindahl and Daniel Augenstein, March 21, 2015. My thanks to Professors Lindahl and Augenstein and the colloquium participants for both lively discussion and excellent comments.

[1] George Frideric Handel, Julius Caesar in Egypt, act 1, sc. 1 (Feb. 1724) (original translation: “Empio, dirò, tu sei, togliti a gli occhi miei, sei tutto crudeltà. Non è da re quel cuor, che donasi al rigor, che in seno non ha pietà.”) (quoted in Janet Baker, ‘Tyrant, Avoid My Sight’, Janet Baker Sings from Julius Caesar (Brian Trowell, trans., Chandos Record 2002)).

[2] Cf. Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (1957) (discussing the medieval political idea of the king’s dual existence in both a physical realm and a spiritual realm—whereby the king’s spiritual “body” would continue to represent his right to rule beyond his departure from the physical realm).

[3] The U.S. Declaration of Independence provides a legal-political application of the sentiments compressed within the aria. See The Declaration of Independence (U.S. 1776).

[4] See, e.g., Declaration of Human and Civic Rights of 26 August 1789, art. 6 (1789) (Fr.), available at
mm/anglais/cst2.pdf (“The Law is the expression of the general will. All citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes.”).

[5] The general will is understood both in its continental sense, consolidated, though by no means limited, to the conception articulated by Rousseau, see, e.g., Jean-Jacques Rousseau, Discourse on Political Economy, in On the Social Contract: Discourse on the Origin of Inequality, Discourse on Political Economy 163, 163–190 (Donald A. Cress ed. and trans., Hackett Publishing 1983) (arguing that the political state is conflicted in its service to the general will of the people by its duty to maintain its own well-being), as well as in the Anglo-American sense of consenting to devolve power to a government in which that power is fractured, see, e.g., Robert A. Dahl, A Preface to Democratic Theory (1956).

[6] See generally Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business 152–200 (2012) (discussing the human rights standards that multinational corporations should apply in their operation and also the manner in which companies can be made accountable for violations).

[7] See Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. HR/PUB/11/04 (2011) [hereinafter Guiding Principles on Business].

[8] See infra Part III.

[9] Cf. Daniel Augenstein & David Kinley, When Human Rights ‘Responsibilities’ Become ‘Duties’: The Extra-territorial Obligations of States that Bind Corporations, in Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? 271 (Surya Deva & David Bilchitz, eds., 2013) (discussing the distinction between “direct extra-territorial jurisdiction” and “domestic measures with extra-territorial implications”).

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