thus they also pose a problem for the classical paradigm of nation-states as complete communities with respect to the common good of their people. I only see two mutually-reinforcing ways out of this dilemma at the moment. On the one hand, states – which inevitably continue to be the primary sources and agents of international law – need to find ways to coordinate increasingly their regulatory actions. There needs, in other words, to be a new international politics – perhaps different from the liberal internationalist structures of the latter 20th century that today no longer seem adequate to the tasks at hand. But what alternatives may emerge is, to me, one of the most difficult puzzles of our era. And at the same time, global businesses themselves need to internalize and institutionalize effective means of self-regulation of their actions to help ensure that they respect basic human rights. The creation of the Facebook Oversight Board is a very interesting development with respect to this second point. It is still very much an uncertain experiment and we will see in time if it succeeds in bringing greater accountability and transparency to Facebook’s operations, but I think we should welcome the effort and should hope very much for it to succeed.
The Facebook Oversight Board recently handed down its decision on the former President concerning the assault on the Capitol. What was surprising to me is the way the Board applied international human rights law. Among the many questions and concerns is that the decision did not take into account the reservations and understandings the U.S. took to the ICCPR and ICERD even though the general rules would have pointed to U.S. jurisdiction. What harmful consequences might this approach have in your view?
Given my responses to your previous question, I should also make clear that I do not see private companies, even powerful ones like Facebook, as being the equivalent of states for purposes of ascertaining their human rights responsibilities. As powerful as they may be, they do not have authority to govern, let alone to govern taking into account all the different aspects of the common good that are necessary to foster the flourishing of the community as a whole. It follows, I believe, that the specific rules applicable to the government of the U.S. (or any other state) may or may not be the ones appropriately applicable to Facebook (or any other similar private-sector actor). U.S. reservations to the ICCPR are a good example of that difference: the constraints on the US government’s power to ban hate speech, for instance, which is imposed by the First Amendment to the U.S. Constitution and which forms the basis for one of the U.S. reservations to the ICCPR, do not necessarily apply to Facebook, which could decide to (and in fact does) have its community standards be somewhat more restrictive with respect to hate speech than would be permissible for the government of the United States.
That question is situated within a much larger challenge. Facebook is a global platform operating across the entire world and its success (and in important ways its potential for positive contributions to social life) is dependent on it being a unified transnational space, not a fragmented collection of different national spaces each subject to separate rules and practices. So I do not see a problem in principle in having a common set of international human rights norms serve as the starting point and guiding principles for the Oversight Board’s judgments. Equally, however, for the same reasons I outlined in more abstract terms earlier,
its decisions must be able to take local context, culture, and meaning seriously into account.
In the Oversight Board’s decisions to date, we can see very clearly the effort – sometimes more successful, sometimes less so – to hold consistent and globally applicable norms together with an awareness and sensitivity to “local knowledge.” This will be an ongoing challenge for the Oversight Board. It will be an even greater challenge for Facebook as a whole (and other global information platforms) to continue to operate on a vast scale and yet still be responsive to the more intimate micro-realities in which people actually experience the exercise and the violation of their human rights.