Telo on George and Wheatley “From Habsburg to the Internet: the Fluidity of International Law across Time and Place”

The Sawyer Seminar on Corporations and International Law held its first spring talk last Friday on February 2, 2018. University of Utah’s Professor Erika George and Princeton University’s Professor Natasha Wheatley kicked off the spring visiting scholar series by discussing how international law has, and continues to, adapt to emerging participants in the international sphere.

Professor George introduced her article “Protecting Human Rights Through Rankings and Reporting: Corporate Social Responsibility and Social Media Corporations” as a case study that traces efforts to regulate business behaviors in the internet industry sector and how effective these regulations actually are in policing transnational actors.

Specifically, she focused on social media companies and how they’re confronting international human rights challenges. Professor George highlighted the case of Shi Tao; after a foreign subsidiary of Yahoo!, Yahoo Holdings Ltd., assisted the Chinese government in tracing messages he relayed to the Asia Democracy Foundation, he was imprisoned. These messages—perhaps ironically—addressed China’s free speech restrictions. Professor George noted that Shi Tao’s case was a catalyst for the creation of the Global Network Initiative project and the Ranking Digital Rights Initiative—both of which hope to promote more responsible business practices among internet-based transnational corporations (TNCs).

Professor George believes that these projects are ultimately a move in the right direction for international human rights, at least on the rhetorical level, but there are still some issues—namely how to encourage TNCs’ voluntary reporting of rankings. Investors, Professor George commented, would be most effective in promoting TNC’s responsibility to protect human rights as TNCs are most likely to embrace policy changes that impact their market share and value.

While Professor George gave the seminar a glimpse into how international law and international human rights may evolve into the future, Professor Wheatley examined how malleable both areas has been in the past. In her article “Collective Rights In and Against International Law: Central Europe as an (Inter)National Legal Laboratory,” Professor Wheatley highlighted minority rights as a case study for how international law can produce regions of particular forms of qualified sovereignty.

She stressed the importance of historicizing international law and how the relationship between regional orders and international law may be applied in different regional experiences—or even become universal ones. Professor Wheatley specified that thinking about international law “historically” requires thinking about international law in time and in place: what did minority rights mean on the ground in which they were applied, and how did people on the ground in these minority states understand them?

Professor Wheatley described the Habsburg Austrian empire as a vital force in shaping how we currently think about international law as well as shaping the mechanisms that allow law to transcend time in ways that aren’t tied to biological time.

Ultimately, the minority rights of pre-WWII eastern and central Europe highlight how people came to have more fluid understandings of international law. Though this minority-focused human rights approach was replaced by the current model of individual universal human rights, Professor George doesn’t conceive this transformation as a story of the failure of minority rights, but as a story of the history of the fluidity of international law.

Just as international law adapted to the needs of the ethnic minorities of Europe, it will need to adapt to the needs of new actors on the international stage in the future. Professor Wheatley pointed out a key trend in Professor George’s discussion of human rights and internet-based TNCs: it is no longer the state’s responsibility to protect the individual’s rights online, but rather it is the individual’s responsibility. Current discussions on internet security focus on how “you”—the individual—should protect yourself online, not how a company or a state is compelled to protect you online.

Indeed, our idea of a modern nation with a specific jurisdiction may be a little blimp in the history of international law’s varying forms of jurisdiction and belonging. Perhaps we need another conceptual vocabulary to analyze what’s really going on in the everchanging spheres of international law and human rights.