111 Yale L.J. 443 (2001)

The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its depth has expanded through erosion of much of the notion of the domaine reservé, the area seen as falling exclusively within the domestic jurisdiction of states. Proposing international norms of corporate responsibility for violations of human dignity continues the trajectory that the law has taken, but it also represents new challenges for the enterprise. It challenges the state's exclusive prerogative (what some might call sovereignty) to regulate business enterprises by making them a subject of international scrutiny; it makes them entities that have their own duties to respect human rights.
 
With the theory now justified, elaborated, and applied in at least some preliminary ways, I would anticipate that it has sown the seeds of a number of core objections to the project of enterprise accountability. I thus conclude by treating four objections that demand a considered response. First, it might be argued that even if, as a matter of moral philosophy, human rights give rise to duties by more than just states, the inevitable result of my theory is essentially to make all private wrongs into human rights abuses. The theory effectively merges human rights law with private tort law. As a result, human rights are no longer special, human rights claims are no longer distinctive, and human rights law is inhibited from its primary goal, the protection of individuals against governments. One concrete concern might be that human rights bodies would be overwhelmed with complaints about corporate behavior and diverted from considering complaints against states.
 
Several responses are in order. First, to the extent an individual can point to a specific internationally recognized human right that he or she claims has been violated, that person has made a bona fide human rights claim; it is still special in that sense. The victim of, for instance, privately initiated torture or private discrimination based on religion is not a mere plaintiff in a tort case; that person's human rights--stated in core human rights instruments--were violated. Second, the theory is one based on human rights, not human desires. International human rights law has developed limits as to what certain rights against the state actually mean. For example, the individual right of members of national minorities to have their own schools does not require the state to pay for a religious establishment, nor would it require corporations to do so. Because corporate duties derive from existing rights, not new ones, the danger of outrageous claims is diminished.
 
Third, and most critically, the possibility that relevant international decisionmakers will derive human rights duties for corporations does not mean that those obligations will be coextensive with the obligations on states. The differences between corporations and states regarding both their internal structures and those to whom they owe duties, as well as the need to respect corporate interests and rights, will inevitably limit the list of duties. For example, with respect to the right to privacy, those applying the theory might well find a duty not to invade people's homes, but not a duty to avoid publishing embarrassing information about public figures. The focus by respected NGOs, corporations, and governments on business behavior directly affecting physical integrity suggests a recognition of the need to proceed cautiously in making claims of corporate duties. I suspect that, over time, decisionmakers are likely to find a set of duties on corporations larger than those on individuals under international criminal law but noticeably smaller than those on states under existing human rights law.
 
A second, related, criticism is that this enterprise cannot be logically separated from an attempt to address duties by all other nonstate actors. In other words, if corporations can violate human rights, then why not sports clubs, unions, NGOs, universities, churches, and, ultimately, individuals? Of course, that individuals have some legal duties in the human rights area has been obvious since Nuremberg. The concern must then be that new categories of dutyholders will inevitably arise, or new duties will fall on individuals. Indeed, this criticism suggests that my project inadvertently advances the cause of some world leaders who seek to give the state new powers over individuals through, for instance, the idea of a code of human responsibilities to complement the various codes of human rights.
 
Clearly, the theory does broach the private-public divide in a way that invites the possibility that the law will recognize new dutyholders in the future. But why the concern? If, for example, the Rwandan Catholic Church participated in the 1994 genocide in that country, as has been alleged by respected observers, why not regard it as having violated the human rights of the victims? If other entities have the ability to deprive individuals of recognized human rights, this theory might provide a framework for doing so, or the basis for a broader framework addressing more actors. If, at some point, decisionmakers end up recognizing more duties for the individual than those now encompassed in international criminal law, they need not have brought about an increase in state power relative to the individual. For any duties of individuals derive only from human rights; because the government does not and cannot itself have human rights, the individual has no new duties toward the government. If the concern is that new individual duties would empower the government to limit the human rights of some in order to guarantee the rights of others (and thus fulfill the former's duties to the latter), the prerogative--indeed the responsibility--of the state to protect individuals from each other is well enshrined in human rights law.
 
Other skeptics could make claims not about the danger of the doctrine, but of its futility. First, it could be argued that tort law remains equipped to deal with corporate abuses of rights, and that reformulating corporate duties as human rights duties accomplishes nothing. But such a position assumes too much about tort law and too little about human rights law. While high-profile tort cases in the United States against corporations for human rights and environmental harms may be proceeding, the practice is hardly uniform. Most states provide no realistic possibility of such recovery. Transforming the controversy into a human rights issue is hardly a cure-all, as victims will always face such barriers to recovery as recalcitrant legislatures, inept courts, and powerful economic pressures. But reformulating the problem of business abuses as a human rights matter might well cause governments and the population to view them as a legitimate issue of public concern and not as some sort of private dispute. In addition, using human rights, rather than tort law, as the prism through which to examine certain business abuses offers some possibility of more uniform global treatment of the issue rather than reliance upon the divergences of domestic tort law.
 
Second, skeptics might well seize on the cautious tone of Part VI and ask why, assuming that governments are unable or unwilling to regulate business activity now, the proposed scheme will somehow improve matters. In the end, does not resistance by the state doom the prospects for enterprise accountability? What possible incentives could states have to get such a process started? Will not corporations simply move to states that refuse to impose new obligations on them? It is, of course, unexceptionable that if states are so uninterested in regulating the activities of corporate actors, they will neither create domestic regimes nor cooperate to prescribe more hard or soft international law. The corporation can no more easily replace the government as having the first duty to protect human rights than can an international organization.
 
But even if states remain reluctant for the short term to prescribe new domestic or international norms on this issue, the derivation of enterprise duties still serves a critical function, insofar as it sets standards for businesses that can be monitored by nongovernmental organizations, international organizations, or the corporations themselves. The changing of expectations regarding appropriate behavior by transnational actors must often begin with civil society before governments can be expected to respond. Recognizing duties on enterprises, rather than merely on governments, also has the advantage of putting pressures directly on them not to seek refuge in some state that may be lax about enforcement. Thus even if the host states do not enforce the new duties, the outside scrutiny will elicit compliance. Moreover, it is possible that courts, domestic and international, that remain somewhat insulated from such economic pressures could jump-start this process through the sorts of rulings the European Court of Justice has issued regarding nondiscrimination in the private sector.
 
Indeed, the same broad claim about government reluctance could be (and has been) leveled at the entire enterprise of human rights law, which is premised on the notion that domestic law may not offer sufficient protections for human dignity. And yet states have still come together over the last fifty years to draft an impressive corpus of human rights instruments and empower various institutions to monitor compliance and even adjudicate violations. This revolution has clearly affected the way that governments act toward their citizens and even promoted wide-scale changes in governmental structures to promote democracy. As for the obvious reluctance of many governments to curb their abuses in practice even as they promulgate and promise to adhere to human rights norms, this cognitive dissonance represents one of the ways in which international law and institutions can improve state and nonstate behavior over time, as targets of norms find it increasingly difficult to walk away from their professed commitments.
 
In the end, this exercise's strongest defense is its possibility of providing a framework and rationality to the dialogue of the deaf that seems to be transpiring among businesses, those affected by their operations, governments, and NGOs. One of law's great purposes is to provide a set of bookends that exclude certain claims by various sides from the table and thereby narrow the range of differences. If these four participants in the accountability dynamic can focus their debate on what are truly human rights violations, the possibilities for constructive solutions loom larger. As the South African Truth and Reconciliation Commission said when it rejected both the view that all apartheid-era businesses should be condemned and that they were blameless, the duties of corporations turn on "[i]ssues of realistic choice, differential power and responsibility."
 
This is not to suggest that the law is the end of the story: Political and economic interests will surely drive the various actors as they make their claims and work to accommodate them, just as they do in other areas where international law is relevant. And both corporations and NGOs will have reasons for discussing enterprise activities that do not breach legal standards. Nonetheless, the law can, as it does in countless other areas of international affairs, offer a common language in this debate, as well as a set of standards that can be enforced. The duties resulting when these actors work through the above theory will clearly satisfy no group fully. But if prescribed and applied by legitimate and effective institutions, or enforced through corporate self-regulation, these norms represent the beginning of a more global and coherent response to new challenges to human dignity.

111 Yale L.J. 619 (2001)

An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created.
 
How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other, the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations. Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations.
 
Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years.
 
Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners, and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems. A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women.
 
In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation.
 
Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, but the methodology--examine statutes, apply facts, presume concurrency--cabins the reach of even the adventuresome.
 
Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption. While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority? In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be.
 
Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction. But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century--at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality.
 
To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations--focused on forced labor, land mines, apartheid, and women's rights--cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment. The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow.
 
In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs. I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization--under current market and political conditions--has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment.
 
That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit. The category "women"--like the others discussed herein--is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary.
 
Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men. For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them.
 
Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms.
 
Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices? Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes?
 
These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders. While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain.
 
The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live.
 
One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.

111 Yale L.J. 761 (2001)