The field of power of transnational law and the new democratic deficit

Abstract

ABSTRACTIn the last 30 years, human rights advocates have brought suits for violations of human and environmental rights throughout the world, and against non-state actors under Alien Torts Statute, a piece of US legislation interpreted as providing jurisdiction over such cases. Finding themselves defending against suits before this statute, multinational corporations have increasingly sought a narrowing of its jurisdiction, culminating in this question's coming before the US Supreme Court in 2012. This paper interrogates how three states, Australia, the United Kingdom, and Germany, positioned themselves in this dispute, thereby examining the complex field of legitimacy and power involved in the development of the field of international human rights. In determining their position, states afforded multinational corporations privileged influence, while accountability to civil society groups was absent. The case illustrates the paradoxical situation where the paired discourses of transnational law and democratic legitimacy persist in authorising states as uniquely legitimate actors in the transnational human rights arena, obscuring the actual field of power. Multinational corporations borrow states’ authority to shape human rights laws, even as they deploy the same fiction to avoid being directly subject to their normative regulation.