The Theory and Practice of International Law: from WWI to Facebook’s Empire

In the most recent installment of the Sawyer Seminar on Corporations and International Law, Erica George of the University of Utah College of Law, and Natasha Wheatly of The Princeton History Department presented their recent work. Professor George’s paper, “Protecting Human Rights Through Rankings and Reporting,” examined the potential for ranking mechanisms to set more stringent corporate norms for human rights. Professor Wheatley’s paper, “Collective Rights in and Against International Law” examined, among other issues, the collective legal personality created by the interwar minorities treaties in Central Europe as a lens for a historical reevaluation of international law. George’s discussion was grounded in the regulatory frameworks of corporate human rights obligations, while Wheatley’s discussion was centered in a more theoretical look at the temporal and spatial dimensions of international law and collective legal personality.

 

Avenues for Improving Human Rights Norms 

Much of the discussion surrounding Professor George’s piece concerned the practical regulatory obstacles to corporate recognition and protection of human rights. George’s optimism surrounding the potential for ranking mechanisms to provide a check on corporate practices was met with some opposition from seminar participants.

One Duke Law faculty was concerned whether ranking mechanisms would support better corporate practices, or if they would simply encourage corporations to be transparent about their corruption in order to achieve a higher place in rankings. Other faculty provided the example of the World Bank releasing standards on countries with poor business practices and the adoption of new laws by Ghana (but with the same practical delays in incorporation) which led to the country moving up on the rankings even though the reality for businesses remained constant. Overall, George argued that even if rankings demonstrate limited efficacy in the short term, they are beneficial for putting human rights on corporate agendas, in many cases, for the first time.

Professor George also fielded questions regarding the most likely avenue for the creation of a regulatory businesses and human rights framework. George explained that a framework is unlikely to come as a result of international treaty. In the 1970s a treaty was proposed but never saw universal ratification due to a lack of support from the United States. Today, a similar treaty has been introduced by Ecuador and South Africa and will likely face a similar outcome given current opposition from the United States and European Union. Another seminar participant did point out the potential for these rankings to encourage companies to develop strong CSR reputations to help recruit top talent, especially in Silicon Valley.

 

Through What Lens Do We Evaluate International Law?

Professor Wheatley explained that she perceives international law on the dual axis of place and time. A subset of the place axis is what she calls the “History of Knowledge Perspective” or how the interpretation of international law is shaped by the histories and existing legal frameworks of the regions in which it is being applied. As an example, she discussed the interpretation of the interwar treaties in Central Europe and the role prior Hapsburg constitutional law played in interpreting the treaties. There were established conceptions in Central Europe of what the interwar treaties should be, and it was thorough these normative perceptions that the treaties themselves were interpreted. On the time axis, Wheatley is interested in how legal personalities allow law to transcend time without being bound to the lifespan of any particular individual.

Wheatley received questions regarding the applicability of the minorities treaties to other instances throughout time and legal regimes. One question paralleled the minorities treaties with the rights of indigenous groups around the world; this participant also asked whether group rights remain an adequate lens to evaluate modern individual rights based practices. Wheatley expanded on this example and described the legal state of affairs in the Australian Outback where the rights of groups (which are tied to ancestral lands) are mixed with the rights of environmental features which are mixed with the rights of extractive industries. The rights of these three groups are tied to varying degrees of public and private legal claims, blurring any lines of delineation and overlapping legal entitlements.