Saturday, November 03, 2018

Ruminations 81: If the Focus of Regulation is on the Victim, are Individuals Made Victims Twice? Rights, Autonomy, and the Emerging Governance Framework for Business and Human Rights

(Pix © Larry Catá Backer 2018)

All of the ages of humanity are interesting in their own way (e.g., here). This current age of the human experience is particularly interesting for the way it has been transforming core structural concepts of social organization, and in the process contributing to a sometimes unconscious transformation of the society itself. There are two trajectories whose arcs appear to be pushing in different directions, both of which appear to be joined in newer approaches to human rights instruments (discussed briefly here in that context). Both also appear to more and more clearly define  the "new era" of human rights in economic activity, especially (and for some only) when undertaken by classical profit making enterprises. The first touches on the legal construction of the status of "victim" bound up in the relation between individual and their attached rights. The second suggests the way that this new legal status appears to strip its bearer of agency--the conferral of the status of victim makes an individual a victim twice over. The first takes place when the individual's (legal, moral, societal, communal or other) rights have been violated; the second occurs when the state confers a status on the rights holder that effectively shifts agency over both rights and vindication from the individual to those who mean to manage both.  

This post very briefly opens a consideration this perversion--in protecting those who bear rights, the normative structure of law commits a potentially greater offense. To some extent, this may strike one as sacrilege. What could be nobler than providing this sort of aid. . . to these sorts of individuals, now marked by and suffering on account of their condition as the bearers of the burdens of rights deprivations? Yet the suffering of victims and the marks of the burdens of rights deprivation are sometimes understood as the badges borne by the perpetrators of the wrongs that transform a person into a victim. Yet these noble sentiments mask corruption, one in which the defender of victims themselves becomes perpetrators of  lies the core of corruption.  The context centers on the  efforts to draft a Comprehensive Treaty for Business and Human Rights.

1. There has been a transformation most notable in the West away from a focus on rights and toward an obsession with the rights holder.  Rights have become something of a gateway; they serve as the rigger to the ordering of relationships that are themselves the product of a complex structuring among people and institutions occupying distinct but relational positions within production.  Production means here not merely economic production, but also social, religious, familial,  and other relational engagements.  Much of this has been easy to see, at least on a superficial level in the rise of a variety of movements that seek to focus law and social norm on victims. At their base appears to be a fundamental assumption of the relationship between rights and those for whose benefit these rights have been ordained. And that fundamental relationship appears to be increasingly ordered on the basis of emerging assumptions about the hierarchies of power--hierarchies that themselves begin to parallel the complex hierarchies of status that once made it possible to order feudal society.  Power relations now appear to determine the target of law/norm/rule/governance, as well to structure its forms.  Power relations are the foundation for determining the forms of relations for which the ordering and adjustments of law/norms/governance etc. is required. The grundnorm of a turn toward the victim might well be understood as centered not on the victim herself but on the management of "abuse of power."  That in turn provides a wide governance space for the manifestation and regulation of "abuse" (its identification, manifestation and consequences) and power That requirement is grounded in associated premises of equal protection, and access to justice. 

2. But that focus has produced a transformation of both rights and rights holder. The refocus on victim must have consequences for regulation, as well as its object.  For rights, the consequences is ironic.  It would appears that a focus on the victim might de-center rights.  What this means is that rights, themselves are no longer the object around which social relations are managed. Instead rights become more the mechanics through which power relations may be arranged.  But contemporary power relations may be arranged, not in the service of rights, but for the protection of the structures and operations of systems wholly dependent on the creation and maintenance of viable and sustainable power relations.  This transformation of rights has even more profound effect on the character of its "holder." Rights holders, in the classic sense, were natural or juridical persons possessed of rights. Rights in this sense might be understood, in some part as a thing that grants its possessor the authority to defend against the assertions or actions of another (including the state), or their failures to act, or to assert in the vindication of claims when damage occurs (as defined by or through the right itself).  Its holder exists beyond the right, and could exercise some discretion respecting its use--indeed, with respect to some, the rights holder had the discretion to invoke rights to further their interests or defend against claimants as they saw fit, or to the extent of their desire or resources. However, as rights become a mechanics for managing power relations, the individual assumes a far more passive role--the rights holder becomes a victim.  That is, the rights holder in a world of power relations is reduced to a status in relation to the effects of the management of those power relations. In other words, in the wake of such a transformation, the rights holder becomes a victim. The individual no longer owns or posses rights; rights operate autonomously of the person and by their working confer a status on the individual touched by the operation of power relations the consequences of which are managed and judged by rights. The autonomous person possessing rights becomes a victim of the abuse of power relations judged through the mediating mechanics of rights.  Rights, in other words, becomes  marker of status, within which the autonomy of the individual disappears.    

3. It has also transformed the rights violator into perpetrators, that is into those who abuse their status/power. These transformations--of rights, and rights holders--predictably has a collateral effect on perpetrators.  They now shift form and focus from rights violators to abusers of power or power relations.  It is in this context that one no longer speaks to rights holders and violators, that is it is no longer possible to speak in ways in which the right  itself (or the law or norm, or rule) is the object around which social relations are managed. Instead one now speaks of victims and perpetrators, that is one speaks to stratus categories based on power relations, the relations of which are themselves managed through rights discourse. Sometimes, both status categories converge, for example where an individual occupies the status of perpetrator against another person over which there is a superior power relation, and at the same time a victim  of whose within whom the individual occupies a subordinate status position. That is particularly the case in the context of violence involving government and religious extremists.
In all the regions studied, the experience (perceived or actual) of abuse and maltreatment by different government institutions, including the political authorities, public services, the justice system and, above all, the DSF, appears to be the most influential factor in relation to vulnerability to violent extremism among young Fulanis. . . .A second key finding about the factors influencing vulnerability to violent extremism among young Fulanisin the central Sahel is how large-scale economic deprivation, of which the villages of Tillabéri region provide pertinent examples, inevitably involves a certain degree of vulnerability to violent extremism (If Victims Become Perpetrators 2018).
Perpetrators no longer have an obligation with respect to rights--they have obligations with respect to those with designated status as victim (of rights abuse). It is status that determine the relational consequences of activity among individuals, the articulation of which uses the language of rights as the mechanics for managing those relations among status infused individuals.  

4. Most important might be the consequential transformation of the relationship between rights, rights holder and the state. Where rights becomes a mechanics of management of relations, and rights holders become holders of contingent status (that of victim), the relationship of both to governance organs might also change.  First, displacing law/rights in favor of people/victims might also displace the autonomy of the individual for the guidance of the rights producing institution.  At its limit, a focus on the victim strips the individual of autonomy--rights are no longer embedded in the individual, but rather the means of determining the effect of activity on the determination of the status of that individual as victim.  There is no agency in these status producing calculations. If that is the case, then to where has agency migrated, that is to whom has the autonomy of the rights holder (with respect to those rights that were by them possessed)? The most direct answer appears to be that agency and autonomy passes from the individual rights holder to the status conferring state or other governance institution whose norms determine status.  One can glimpse shadows of this trajectory, for example, in the status based focus of the application of human rights norms to economic activity.  The recent work on the so-called Zero Draft points to this effect more directly (briefly here in that context). It transfers the locus of active control of the individual in the shadow of law from the individual to those who manage their behaviors.  I have been critical of this movement to strip individual rights holders of their autonomy, and of their own sense of the scope and form of the protection of their rights in some contexts in this area (see, e.g. here, here, and here).  This is not to be confused with the altogether critical role of law/governance in the protection of individuals who seek to vindicate their rights (e.g., General Assembly Resolution A/RES/53/144 adopting the Declaration on human rights defenders). But the transformation of rights holders to victims also suggests that it is for others to determine what and how the condition of the victim is to be alleviated; that authority to decide passes from the victim to the governance institution.

5. Those transformations have potentially profound effects on the construction of governance systems related to the economic activities of states, and other actors. It goes a long way to shifting the authority over the  vindication of rights from the rights holders to those who would act for them.  Victims might be reduced to the capacity of infants in a world in which those well meaning organization (and businesses and states) that seek to represent their interests substitute their volition, and their power to make decisions in the best interests of the victims, for that of the individual rights holder. It is in this sense that one can begin to understand the notion that transforming the rights holder to victim makes the individual a victim twice--the first time with respect to the violation of rights, the second with respect to the stripping of agency and the power to decide how individual primary rights might be vindicated. Rights, then, become the means through which the state (or other governance or representational organ) can mediate the relations among institutions respecting the forms and manner of the protection of those whose inferior status requires protection (on their behalf) by those with superior status (anything above that of the status of victim). For this, surely, a victim is required, but one stripped of agency.  Rights are detached form the individual, and devolve to the state or other mediating authority, which now is understood as undertaking a responsibility to vindicate rights or ensure their protection, against other institutions. In this manner, the 2nd Pillar of the United Nations Guiding Principles for Business and Human Rights, for example, is stripped of its direct connection to rights holders, and becomes instead, a vehicle for the mediation of responsibility among rights responsible entities for the benefit of and in the interests of those who hold (or might be reduced to the status of) victim. The now ritualized performances of "listening" to victims in the context of determining how best to do right by or for them provides the best example of this transformation, and with it the quite dramatic shift in power relations in the wake of the move from rights holding to victim status based governance (e.g., here, here, here, and here).

6.  This is by no means an indictment of the good intentions of those whose decades of work have moved the project of human rights embedded governance into the sphere of economic activity, however undertaken.  It is rather a caution.  That caution suggests that some time ought to be devoted not merely to doing what appears to be, in the eyes of high status organs, in the best interests of victims.  Rights holders affected by violations--especially where they might be systematic, or where there might be systemic incentives built in to the structures that are meant to serve those vested with rights in their defense, are worth careful consideration. There is much to learn from rights holders--especially where they do not operate on a level terrain against those who might threaten their rights--and more importantly make it effectively impossible to fairly vindicate rights once violated.  But victims do not possess rights. Victims only possess the expectation that someone else who act on their behalf, and will secure for them what these representatives believe to be adequate protections of their rights. That is the sort of dependency that the law has little business sin embedding in the structures of its operation. The development of the framework for business and human rights ought not to be built on the cultivation of expectation from a dependent population--it might serve human rights, and the fundamental right to individual dignity, better were it to be built on the robust protection of effective power to vindicate rights among those who posses them. But even this becomes complicated in the context of national political traditions, a subject that will be taken up in later posts.

7.  What does this mean for the project of regulation, generally, and more specifically, for the development of regulatory frameworks for the economic activities of all actors?  In the West it serves as a caution.  The caution appears in the form of a paradox at the heart of the post Enlightenment project of organizing society through its politics, economics, culture, ethics, and religion: that is the paradox inherent in what the religious call "free will" and what has come to be known as human dignity and autonomy.  Western society believes deeply in the concept of human dignity and autonomy, but at times finds it difficult to permit the individual to choose and to live with the consequences of individual choice.  To embed rights in an individual and to give that person authority over its vindication in a  manner suitable to the individual can sometimes run counter to the scientific enterprise of the state and society in which the "good", "right" or optimum" action, result or choice has been determined outside of the choice of the individual.  Crafting a regulatory system grounded in the status of "victim" permits those how create and manage rights to also manage choices.  In all of that the individual becomes or a passive object of the operation of a system, than of an autonomous actor within it.    Yet the very project of shifting agency over rights protection from the individual (and her potentially disastrous decisions) to the state or other regulator or representative, also effectively betrays the fundamental Western notion of human rights--that of the dignity and autonomy of the individual and their relations to the rights each possesses in themselves. Clearly, a balancing will always be necessary, but sensitivity to the underlying contradiction may better guide choices made for and on behalf of rights holders, now reconstituted as "victims."

8.  Marxist Leninist systems, on the other hand, do not suffer this contradiction.  In those systems, one starts from the principle that rights are embedded in the community.  They are the obligations of the collective rather than a possession of the individual. Individuals do not possess rights except collectively.  Those rights are then expressed as the obligation of the state and its political leadership to ensure that individuals are ensured of the protection of those rights against each other, and against other actors.  The authority inherent in those rights shifts from the individual, who are their objects, to the state and its political leadership, which are its agents (discussed, e.g., here in the economic and social rights context). In these systems, the principal object is the protection of the collective, and its conception of rights.  The state or other regulators mediate among actors in the assertion and in the protection of rights.  And it is to the regulator that one looks both to the determination of when vindication is required, and in what form. There is a comprehensive construction of balance and sustainability in such a system, but that requires a quite distinct, and for the West problematic, preconception of the individual and their relation to rights. Yet in light of the movement of human rights regulatory principles, that problematique may exist now only in theory. 

9.  And thus to the problematique posed by the arc of movement of human rights regulatory efforts--the double arcof seeking regulatory measures to construct rights for individuals, and then the arc that strips them of the right to autonomy vindicate those rights, will haunt the human rights and economic activity enterprise for some time to come.  Moving toward a "victim-centered" focus represents not merely a propaganda campaign to garner support, but also a fundamental choice of governance principle at the very core of the human rights enterprise that emerged after 1947. All of these revolve around the even more fundamental question--what does it mean to embed human rights in the individual? Are rights embedded but not entirely the authority to vindicate them? This conundrum will haunt the enterprise for some time to come. And in that spirit I leave you with Muse's 2007 Map of the Problematique that obliquely speaks to the interior landscape of this exterior problem. 

Click to listen

Lyrics:Fear, and panic in the air; I want to be free; From desolation and despair; And I feel like everything I saw; Is being swept away; When I refuse to let you go;I can't get it right; Get it right;Since I met you; Loneliness be over; When will this loneliness be over; Life will flash before my eyes; So scattered almost; I want to touch the other side; And no one thinks they are to blame; Why can't we see; That when we bleed we bleed the same; I can't get it right; Get it right; Since I met you; Loneliness be over;When will this loneliness be over; Loneliness be over; When will this loneliness be over. Songwriters: Matt Bellamy; Map of the Problematique lyrics © Warner/Chappell Music, Inc

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