Reclaiming Human Rights from Globalisation

Whatever the true historical origins and philosophical foundations of human rights, their protection has taken a distinctive form in the modern state legal order and, by extension, the state-centred conception of international law. From the American and French Declarations of the ‘Rights of Man’ to the Universal Declaration of Human Rights, the main purpose of human rights was to organize and legitimize the social compact between the state and its citizens. At the domestic-constitutional level, human rights law structures the relationship between rulers and ruled (the government and the people) by imposing obligations on the state’s public authorities for the benefit of private individuals located on the state’s territory. This is mirrored at the international level where states legally oblige each other to respect, protect and fulfil the human rights of private individuals located on their own territory in relation to acts of their own public authorities.

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 the Human Rights Council in June 2011 – is that it has documented in considerable detail the significant impacts of global business operations on human rights protection in the international 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 facticity of the human rights impacts of global business operations threatens to undermine the normativity of international human rights law that has traditionally domesticated human rights protection in the public and territorial state.

In response, many ‘global’ approaches to 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 essays collected in this Special Issue, by contrast, is to examine how human rights responses to violations committed in the course of global business operations transform the boundaries of statehood constitutive of the state-centred conception of international law. A guiding concern in examining this transformation is to recover the public and political nature of human rights law under conditions of globalisation.

In this vein, the first three contributions to the Special Issue explore the changing spatial, temporal and subjective boundaries of the state-centred conception of human rights law wrought by the transformation of the time-space of modern social relations commonly associated with (economic) globalisation. What is the role of international law’s past and present colonial pathways in the production of today’s global geographies of injustice and places of human rightlessness? How should we situate human rights in the changing relationship between the temporal authority of the state and the rhythms of global financial capital? Or, what happens to the individual subject of human rights when re-presented in the fractured territories and abstracted terrains of global business and human rights governance?

We encounter a second sense of the transformation of the boundaries of statehood in the changing role of human rights in structuring the relationship between public and private power and authority. The traditional preoccupation of human rights law with protecting a private sphere of individual freedom against undue interference by public authorities is increasingly overshadowed by concerns about the human rights impacts of private power that coalesces around multi-national corporations. At the same time, patterns of privatisation and global economic cooperation and competition have given rise to concerns that international human rights law becomes subjected to the ‘laws’ of the global market. These developments require us, as the following three contributions do, to look beyond the stark contrast between public and private power towards new ways of legitimating power per se, be it located in the state, civil society, or global business entities.

The last four contributions examine the transformation of the boundaries of statehood in the context of two prominent attempts to come to terms with the human rights impacts of economic globalisation: the already-mentioned UN Guiding Principles on Business and Human Rights (UNGPs) and the provision of (human rights as) global public goods. The UNGPs put forward a framework of complementary and interlocking human rights duties and responsibilities of states and corporations structured around three pillars: the state duty to protect human rights; the corporate responsibility to respect human rights; and greater access by victims to effective remedies for corporate-related human rights violations. In one sense, the UNGPs may be seen as part of a broader regulatory agenda to develop a new transnational and multi-channel approach to business and human rights that moves beyond the old state-based dichotomy between territorial human rights government and global human rights governance. Yet in another sense, they also invite critical reflection on the statist premises of legal ordering, including the law/non-law divide, that underpin this very government/governance distinction and that are perpetuated in the UNGPs’ ‘protect, respect, and remedy’ framework.

The final two contributions explore the relationship between human rights and public goods in addressing matters of common global concern. The language of global public goods and universal human rights signals that many challenges bound up with globalisation (be it the mitigation of global climate change or the alleviation of world poverty) exceed the traditional state-based distinctions between domestic and foreign politics, and between constitutional and international law. At the same time, an important challenge faced by attempts to ‘universalise’ human rights and ‘globalise’ public goods is that both notions have traditionally been vested in a political collective individuated in the state legal order. Accordingly, one of the core questions that runs through the essays is whether, and to what extent, the combination of public goods’ focus on collective provision and human rights’ focus on individual well-being can provide the basis for a political conception of global justice beyond the international order of states.

“Global Human Rights Law and the Boundaries of Statehood” is a Special Issue, edited by Daniel Augenstein and Hans Lindahl, which is forthcoming in Indiana Journal of Global Legal Studies 23, no. 1 (2016). The introduction to the Special Issue is already available on SSRN.

Written by

Daniel Augenstein is Associate Professor in the Department of European and International Public Law at Tilburg University (The Netherlands) and Senior Research Fellow of the Humboldt Foundation. He is a Guest Researcher at the WZB Center for Global Constitutionalism in 2015.
Website at Tilburg University

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