Looking Forward and Back: Two Approaches to Solving State-Centrism

On Friday, February 2, 2018, the Duke University Sawyer Seminar on Corporations and International Law welcomed two scholars, Erika George, Professor of Law and Co-Director Center for Global Justice at the University of Utah, and Natasha Wheatley, Assistant Professor in Modem European History at Princeton University, to present their papers at an interdisciplinary academic workshop, “Corporate Rights and Responsibilities, Past and Present.” Approximately forty people, including Duke professors, Ph.D. students, and law school students, attended the event.

The workshop began with introductory remarks by Philip Stern, one of the co-organizers of the Sawyer Seminar. Professors Wheatley and George then introduced their respective papers, identifying the major challenges they were trying to address.

George’s article, a chapter to a larger book tentatively titled Incorporating Rights, tackled a very contemporary problem: How can the human rights community ensure that corporations respect international human rights norms, given that a multilateral treaty, creating internationally binding law, is unlikely? To provide focus to her arguments, George used the internet sector as a case study. Her paper examined the various ways that human rights organizations are pushing internet and telecommunications firms to respond to human rights concerns, particularly internet companies’ practice of acceding to states’ information requests about the firms’ users, when those states then use that information to violate the users’ human rights. As George explained, internet companies are a particularly interesting case study because their services provide means for effecting fundamental human rights—namely, freedom of speech. Convincing internet firms to protect those rights is thus both urgent and instructive. Ultimately, she identified disclosure as a notably powerful way to influence investors, who she believes can best affect company behavior.

Wheatley’s work, in contrast, is retrospective: Rather than explicitly attempting to adjust international law’s current, state-centric iteration, she analyzes the interwar period to identify alternative theoretical approaches to international law that have since been abandoned. At the workshop, she explained that studying the theories left behind, particularly those that emerged from the fertile landscape of the former Hapsburgian empire, allows scholars to better understand—and reimagine—the regime now in place.

As Wheatley explained, there are two “axes” through which one can consider history: time and place. In this field, Wheatley argued, place has been under-considered. She explained that modern international law, with its roots in Western Europe, is held captive by the nation-state paradigm that made sense to scholars from England and France—but not to scholars from Central Europe. Because Central Europe, through the Austro-Hungarian empire, was structured quite differently than the West, scholars from that region developed alternative ways of thinking about sovereignty and statehood—and in particular, the role of transnational ethnic identity. Studying those ideas now, especially in reference to landed indigenous groups and multi-national corporations, allows scholars to retool our current system to address international and transnational polities that exist above and apart from the state.

Ultimately, both Wheatley and George struggled with the same, fundamental question: How can modern international law to respond to and accommodate non-state entities? The audience was eager to participate in the conversation. Questions focused on how both scholars might improve their research methodologies: George, by looking at empirical research and thinking about more “legal” ways to affect behavior, such as by imposing municipal corporate liability, and Wheatley, by “historicizing more”—that is, by thinking more broadly about the role of the empire in pre-modern Europe. Both scholars thanked the participants for their insights.