John H. Knox responds to Jacob Katz Cogan

[John H. Knox, Professor of Law, Wake Forest University, responds to Jacob Katz Cogan, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

In The Regulatory Turn in International Law, Jacob Katz Cogan takes on a big topic:  the increasing regulation of non-state actors by international law.  Because this development is occurring in so many areas of international law, its full extent can be difficult to grasp.  As the article explains, it is not simply an aggregation of many changes in different fields, but a sea-change in the orientation of the entire international legal system.

Even an article that merely identified this “regulatory turn” would be of great importance.  But this article does much more than that.  It provides a historical narrative, it pulls together examples from many different regimes and explains how they constitute common types of regulation, and it analyzes the effects of this development on the international system as a whole.  The result is a seminal work that will influence later scholarship for years to come.

One of the article’s many strengths is that it points out how the regulatory turn may be dangerous as well as beneficial.  In this response, I focus on how proposals for private duties in human rights law may pose dangers to human rights.  To be clear, I am not suggesting that all such proposals pose such dangers.  The challenge, which human rights advocates have faced for some time, is to distinguish between duties that undermine human rights and duties that support them.

Although the article describes how the regulatory turn is occurring throughout international law, it emphasizes that the change is driven in large part by human rights law, so much so that “the regulatory turn, to a significant extent, represents a second human rights turn.”  In the 1940s and 1950s, the article states, human rights advocates were primarily concerned with state abuses of human rights and therefore did not make much of an effort – and, in fact, generally opposed — placing duties on non-state actors.  In the 1980s and 1990s, a number of factors both “defanged in important ways the post-War conceptualization of governmental evil” and caused various non-state entities – terrorists, corporations, organized crime – to rise up “in the public’s mind as threats to liberty, order, and rights.”  As a result, human rights activists joined states (which had for somewhat different reasons also changed their positions) in seeking to use international law to set out private duties.

I agree that human rights law plays a central role in the specification of private duties under international law.  I disagree slightly, however, with the description of this role as a new development of the last two decades.  I see it more as an intensification of a long-standing characteristic.  Human rights law has always been concerned about threats to human rights from non-state actors.

It is true that despite proposals that the Universal Declaration of Human Rights include human duties as well as human rights (as had the American Declaration of the Rights and Duties of Man, adopted just half a year earlier), the drafters of the Universal Declaration and the Covenants did not include explicit private duties.  But before, during, and after the negotiation of the International Bill of Rights, human rights advocates supported international instruments regulating private conduct.  Many important examples predate the 1980s, including treaties requiring states to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination.

Over time, human rights law has certainly addressed private duties with much greater specificity, but the dividing line between opposition to and support of such duties is not temporal but substantive:  human rights advocates have supported some duties on non-state actors and opposed others not because their world-view changed in the closing years of the twentieth century, but rather because they have consistently tried to distinguish between duties that further human rights and duties that undermine them.

The duties listed in the American Declaration, which the drafters of the Universal Declaration decided not to incorporate, are essentially duties to the state.  They include duties for each person “to obey the law and other legitimate commands of the authorities of his country,” for example, and “to render whatever civil and military service his country may require for its defense and preservation.”  The infant human rights movement was trying to establish that states owed certain duties to human beings just because they are human beings.  It was easy to see how this fragile undertaking could be destroyed if the same instruments that set out the duties states owed to humans also listed converse duties that humans owed to their states.

But duties imposed on private actors to prevent them from abusing particular human rights are far less likely to undermine rights in this way.  Even though such duties are almost always imposed indirectly, through specification of states’ duties to protect human rights by regulating private conduct, these duties remain essentially correlative and horizontal – they correspond to particular human rights, and they seek to protect those rights from interference by other non-state actors.  Human rights advocates and democratic governments have long supported such duties in particular contexts, at the same time that they have opposed endorsing general duties to the state such as duties to obey its commands and render it service.

I witnessed this dynamic first-hand as an attorney-adviser for the State Department in the early 1990s.  For a time I participated in the negotiation of two human rights declarations, both of which involved proposals for private duties.  In one, the proposal was that a declaration on the rights of human rights defenders should also set out their duties to society.  In the other, the proposal was for a declaration on violence against women to set out the duties of states to address such violence, including violence by private as well as governmental actors.  In other words, the first involved setting out duties owed by human rights activists to the state, while the second sought to impose correlative, horizontal duties on private actors to respect human rights.  Unsurprisingly, human rights advocates opposed the first and supported the second.

I do not want to overstate my difference with the article’s history of the regulatory turn in human rights law.  I completely agree with its broader thesis that international law in general, and human rights law in particular, are strongly trending toward greater regulation of private conduct.  My point is merely that the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.

As proposals for private duties proliferate, however, that challenge is raised more often and in new ways.  It may seem relatively easy to distinguish general duties to the state from duties to respect particular human rights.  (Still, proposals for such general duties persist, often attracting support from those who do not understand their dangers.)  But as indirect duties become more widely accepted, an increasingly common question is whether international law should impose more direct duties on private actors.  For example, one of the issues running throughout recent efforts to devise and strengthen duties of corporations under human rights law has been whether international law should continue to impose such duties indirectly, through duties on states, or should place duties directly upon the corporations themselves.

My own view has been that, with a few exceptions for particularly heinous violations of human rights, it is practically and politically impossible for international law to impose human rights duties directly on corporations, and that the effort to do so may undermine more realistic goals.  Many human rights advocates, however, have strongly supported the imposition of direct duties, as expressed in the Draft Norms prepared by the UN Sub-Commission on the Promotion and Protection of Human Rights in 2003.

Last month, the Human Rights Council adopted Guiding Principles on Business and Human Rights that build on the more traditional position by elaborating on the state duty to protect, but also provide something for proponents of direct duties by defining a new corporate “responsibility to respect” human rights.  While this responsibility to respect is not imposed by international law, it may well become a new standard for corporate behavior.  Whether that defuses, or strengthens, demands for more direct duties remains to be seen.

Issues like this will arise more often as international regulation of private conduct increases.  Jacob Katz Cogan’s article provides a strong scholarly basis for future debates over how best to manage the regulatory turn.