Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes within and Beyond the State

Abstract

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the constitution of states, and of state power, formerly quite distinct in their forms and secure within their territories, gave way to a polycentric order in which national territory no longer defined and contained a compulsory and singular legal order sitting atop a hierarchy of governance. These two trends have had a noticeable impact, not just on law and governance generally, but more importantly, on the way that representation is understood and practiced. Today, the representation of individuals has become more problematic at the national level as it gives way to other bases of sovereign power derived from international norms. At the international level the individual loses representative capacity. The will of the consensus of states has supplanted that of the citizens of the state in ways that may undermine the legitimacy of governance systems. This paper considers the problem of representation within these intertwined phenomena. To that end, the paper considers the manifestation of these two macrotrends in the context of the governance of global business and human rights regulatory regimes. In the context of the first trend, the problem of who legitimately represents is considered within international organizations producing norms for transposition to the domestic legal orders of states. The specific context will be the public forums of the U.N. Working Group on Business and Human Rights. In the context of the second, the problem of what is the object of representation is considered at the national level, now the site of transposition of international norms. The specific context is the rise of multiple legal regimes each with a fidelity to a distinct representational community. The boundaries of statehood have been redefined and with them the nature and object of representation. Where states once existed, territories serve as “bowls” in which several national legal orders may operate through individuals and entities. Where international organizations once served the community of states, they now serve as vessels that contain mass interests re-incarnated as representative organizations that produce or negotiate formal law and societal norms for self-application. Within this context, simpleminded projects, and in particular the move toward a single comprehensive public law treaty on business and human rights, becomes an anachronistic exercise.