欧美人权尽责立法的反身法规制理念及进路——基于“当地居民”的视角

Refining Human Rights Due Diligence Legislation through the Reflexive Law Approach:From the Perspective of Local People

工商业中的人权保护是全球化时代中跨国企业规制的新议题,欧美国家在这一背景下相继出台了人权尽责立法。然而,欧美人权尽责立法并未实质性地将当地居民纳入考虑范围:当地居民无法有效参与尽责计划的制定,也无法有效监督尽责义务的履行以及获得赔偿。从系统理论看,其根本原因在于当地居民所处的全球社会系统与欧美国内法律系统之间存在难以逾越的独立性。具体来说,欧美国内法律系统难以突破与全球社会系统的沟通阻滞性,也难以干预全球社会系统的运作自主性。人权尽责立法遭遇了前所未有的规制困境。对此,托依布纳提出的反身法理论对解决该困境有所裨益。反身法理论强调法律的作用在于通过对社会子系统自我调整机制的定位、矫正和重释,促进社会子系统的自我学习和分散整合。人权尽责立法在反身法统摄下应当立足于参与型国家,维持后国家型构,恪守温和教育者角色。在实践层面,反身法理论结合其组织、程序、沟通和权限理性,为欧美人权尽责立法的当地居民视角调整提供了有益的发展进路支持。

The protection of human rights in business is a new issue in the regulation of multinational enterprises in the era of globalization,and Western countries have introduced human rights due diligence(HRDD)legislation one after another in this context.However,while almost all existing human rights due diligence legislation provides for stakeholder engagement,in practice it limits stakeholders to"groups or individuals that influence the realization of organizational goals",ignoring the local residents affected by those organizational goals.Local people find it difficult to participate in the formulation of the company’s due diligence plan,nor can they effectively supervise the performance of the company’s due diligence obligations,let alone claim compensation.The main reasons for this predicament lie in the following two aspects:first,it is difficult for the domestic legal system to break through the communication barriers with the global social system.As for human rights violations in the business industry,the conflict between the universal social structure and geographically restricted legal structure has brought obstacles to both intersystem information communication process(social communication)and intra-system information communication process(legal communication).These obstacles expose the domestic legal system to what Habermas calls"the crisis of rationality"-the inability of legal and hierarchical structures to assimilate models of global social reality,and thus leading to the difficulty of expressing negative external feedback on human rights violations in supply chains or business relationships.Second,it is difficult for the domestic legal system to interfere with the operational autonomy of the global social system.In particular,multinational enterprises in the global social system are able to circumvent the direct regulation of the domestic legal system in various ways so as to maximize their individual interests and system interests.In this regard,the reflexive law theory is helpful in resolving these problems.The theory of reflexive law emphasizes that the role of law is to locate,correct and reinterpret the self-adjustment mechanisms of social subsystems in order to promote self-learning and decentralized integration of the social subsystems.The analysis based on this theory perceptively points out that HRDD legislation should lay emphasis on three aspects:1)establishing the status of a participatory state,that is,seeking to evolve from a role of legislative intervention featuring"command-and-regulate"to that of personal involvement in the operation of the global legal system for the joint governance of multinational enterprises;2)maintaining a post-state structure,that is,providing decentralized integration methods;and 3)adhering to the role of a gentle educator,that is,actively mobilizing self-reflection and self-learning abilities within the enterprise.Therefore,the theory of reflexive law,in combination with its organizational,procedural,communicative and competence rationality,provides useful support for the development of HRDD legislation.Specifically,from the perspective of local people,HRDD legislation should:1)incorporate stakeholder governance at the level of organizational goals,and require enterprises to establish stakeholder participation bodies that allow for the effective participation of local people in the formulation and implementation of HRDD programs at the level of governance structure;2)define stakeholders as"any group or individual that can influence or be influenced by the realization of the organizational goals",and in terms of promoting dialogue among organizational stakeholders at the operational level,require enterprises to establish reporting procedures to collect the views of local people in a timely manner;3)require the administrative authorities to meticulously control the entire disclosure process and to establish extrajudicial appeal or dispute resolution mechanisms to deal with complaints from local people;4)establish third-party audit or certification bodies independent of administrative authorities to achieve sufficient external supervision.