Hughes on George and Wheatley, “Corporate Rights and Responsibilities: Past and Present”

To kick off the Spring 2018 semester of the Mellon Sawyer Seminar Guest Lectures, Natasha Wheatley, Professor of History at Princeton University, and Erika George, Professor at the University of Utah College of Law, presented papers on Friday, February 2nd, 2018.  Both papers discussed the role of non-state entities in international law. George began by presenting what will become a chapter of her upcoming book on the regulation of multinational corporations. This paper focused on the effect of the Ranking Digital Rights Initiative as a method of regulating the human rights behavior of the internet communications technology sector. Wheatley next presented her paper on the historicization of international law in interwar central Europe with an emphasis on the perspective of time and place.

Much of the conversation that followed centered on George’s conception of rankings as a form of regulation and their effect on the behavior of MNCs regarding the protection or abuse of human rights. There was much debate about the efficacy of the rankings, in particular given their emphasis on transparency over substantive respect for human rights. Transparency could be either be a hollow substitute for substantive human rights respect by MNCs, or the rankings may enable judgments on the substance of an MNC’s record by proving more information to the public.

George also grappled with the question of to whom the rankings will matter the most. George believes that the rankings will have the greatest impact on investors who can motivate better MNC behavior in the area of human rights. George posited that social norms against human rights infringement will influence corporate behavior in this area if, through regulation, they are required to disclose their assessment of human rights risks in their operations. While George’s case study of the impact of the case of Chinese journalist Shi Tao on the human rights record of Yahoo may indicate that naming and shaming is capable of changing behavior, this method of regulation may have a lesser impact on a consumer choice. Public attention to the human rights abuses perpetuated by MNCs may be eroded by lack of consumer choice in online social networks and human rights disclosures only reaching a particular audience. Wheatley also posed an interesting question to George’s study of corporate human rights abuses: If the public continually waives their human rights by giving information to social media sites that infringe on their privacy and free expression rights, then on what basis are human rights useful or enforceable?

During the discussion of George’s paper, the idea of the citizenship of internet communication technology sector companies was raised. Particularly relevant to the evolving conception of corporations in international law is whether individuals could one day be considered citizens of the State of Facebook, for example, and whether citizenship can overlap when MNCs do not occupy physical territory. In Wheatley’s paper, Central European minority collectives faced a similar issue of overlapping citizenship as entities within empire and within an international legal order. Further in the conversation, Wheatley also identified the choice that must be made in defining minority identities as a basis for recognition and protection and whether that choice will be fixed forever in law. The recognition of these collectives also requires that there is identification with that collective on the group level and on the individual level.  While Wheatley explores these questions in the backward looking historical context, when in conversation with George, these questions illuminate issues we may face in a future in which online MNCs have power that rivals that of States.