Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar and Professor of Law ; Professor of International Affairs, Pennsylvania State University

lcb911@gmail.com

Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks:  The Potential Impact of Privatisation and the Role of Companies in China and India

International Conference on the Realisation of Socio-Economic Rights in Emerging Free Markets: Perspectives from China and India, City University of Hong Kong Scholl of Law, Nov. 29-30, 2012

Issue• Privatization and its effects on the implementation of

regimes of protections of economic and social rights – From the middle of the last century, socio-economic rights have been bound up

within the ideology of the state within national legal orders and through the construction of an important edifice of public international law and institutions.

– Globalization may be changing both the focus and locus of socio-economic rights.– Focus on China and India

Inquiry• FOCUS on the possibility that the development of global

norms touching on economic, social and cultural rights (along with civil and political rights) – might be undertaken not only by states but also by non-state actors

and particularly by large economic enterprises and– This has changed the dynamics of Human Rights theory and

practice:• Questions:

– to what extent can advances in the protection of economic and social rights be understood as driven by the private rather than by the public institutions in China and India?

– what accounts for the differences in the expression and vindication of economic and social rights between China and India?

Roadmap:• Part II sets the context, focusing on the way in

which social and economic rights are understood within India and China.

• Part III is the heart of the chapter, suggesting the role of globalization and privatization of human rights obligations through two case studies, one form India and the other from China.

• Part IV concludes with some general observations about globalization, privatization and the advancement of human rights regimes.

Regimes of Human Rights• Traditionally a state centered enterprise• Assumed current form with the establishment of

the U.N. system• Grounded in language of law and rights

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From One Many• Universal Declaration of Human Rights

– Aspirational; principles

• Fracture– Division of catalogue of rights

• International Covenant on Civil and Political Rights (ICCPR) • International Covenant on Economic, Social and Cultural Rights (ICESCR )

• Consequences– Hierarchy of rights?– Universalism vs. Localism: Not all states embrace either– North – South divide

Asian Values?

• The role of social and economic rights in Asia is marked by – an embrace of the general proposition of international human

rights,– an inclination to carve out an Asian values perspective on these

universal rights, and– a sense that such an Asian values framework is itself contestable

• because of the wide differences in values among Asian states.

• The critical distinction within the Asian values camp is the focus on development versus democracy.

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China and India• Reflect different paths to human rights• China

– framing “human rights” within the concept of socio-economic rights (SER). – Social construction: ensure social harmony and sustainable development – Social construction under the concept of “Scientific Development”

• embodies core idea human rights because it serves to promote citizens’ SER. – Chinese values

• existence of “grey areas” of debate on human rights between the West and China, “including criminal law, family law, social and economic rights, the rights of indigenous people, and the attempt to universalize Western-style democratic practices.

• Soft law is important

• India– Focus on articulation and enforcement through the state apparatus– Public litigation; the role of Supreme Court and constitution– Social and economic rights a joint public law project—national and international

• Civil/political rights the prism through which SER embodied

Enter Globalization• Globalization

– has undermined settled (if contentious) framework of development centered on the state;

– Non-State actors burdened directly by international obligations• Also willing to directly incorporate normative frameworks within their own

operations

– Rise of autonomous regulatory systems that implement human rights• Systems are transnational in character• May not reflect the political choices made by any state in choosing

among civil/political and social/economic rights– Key for implementation is privatization

• non-governmental entities now drive human systems structures – But private actors tend to replicate human rights fracture

Privatization:The Case Studies

India—Vedanta

http://www.guardian.co.uk/business/2009/aug/05/vedantaresources-india

--Niyamgiri Hills--Dongria Kondh; indigenous group--2005 Vedanta bauxite refinery at Lanjigarh--2007 Indian Supreme Court denies permission to mine area without a permit----2008 Sterlite (joint venture subsidiary) applies for license--2009 permission granted, Supreme Court OK

Niyam Dongar hill is the holiest of the holy, It is the seat of their god, Niyam Raja.

“To be a Dongria Kondh is to live in the Niyamgiri Hills in Orissa state, India – they do not live anywhere else.”

Vedanta• Norway Sovereign Wealth Fund:

– The Ethics Council determined, on the basis of its investigation, that “it is highly probable that Vedanta’s mining operations in the states of Chhattisgarh and Orissa have led to the expulsion of local farmers, and, in particular, tribals, from their homes and land. This constitutes a serious violation of fundamental human rights.”

• Investor Community and Amnesty– Divestment and reports– protests

• OECD UK NCP complaint– Survival International (standing issues overcome)– Violations; failures to consult

• Vedanta failed to respond (on basis that these proceedings had no legal effect)

• Investor Divestment• Political Repercussions

– Anger; sovereignty; support– Project pulled Indian Ministry of Environment and Forests; refinery operations

modified

China—Foxconn/Apple

• incorporation of social and economic rights within global supply chains generally subsumed within the corporate social responsibility aspects of corporate governance

• Actors– Foxconn (Han Hai Precision Industry Company, Ltd )– Apple– Fair Labor Association

Foxconn/Apple• Factories/Operations• Systems

• While states memorialize their norms through law, contract serves a similar purpose for regulating the behavior among non-state parties

– Foxconn: Supply Chain Management System– Apple: Code of Conduct

• Stressing the Systems: Suicides• Aftermath– Enter FLA

Privatization and SER Systems

• Two case studies suggest similarities and divergences being taken by China and India with respect to the implementation of social and economic rights in their respective states. – Those similarities and differences mark the parallel development,

within both public and private spheres, of distinct approaches to human rights.

• Carry over the bifurcation of human rights discourse between civil-political rights on the one hand and social and economic rights on the other. – That bifurcation, when operationalized by private actors, as in the

case studies, produces substantially different approaches to the way in which social and economic rights are understood and implemented.

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A Winding Path

India• In India, social and economic rights are constructed within a law-based

discourse. Privatization focuses on the interaction of systems of governance operating simultaneously at the national, local and international levels. It involves the management of the extent to which private actors must conform to the obligations of law generated at the local, international and national levels. – Those obligations are vindicated through judicial or quasi-judicial processes

connected to each level of law or governance system. – Self-constituted organs—indigenous groups, provincial and national legislatures,

international organizations and enterprises—generate rules. – Ultimately, the extent of private rights and obligations remain connected to a rights

discourse that is tied to political action by the state, a state that responds to its obligations as a stakeholder in supra-national and private global governance systems.

• In India, the state Supreme Court, its government and parliament, played an important role in interaction with sovereign organization with a private or transactional character. – Privatization within networks of public governance

China• Rights privatization in China, on the other hand, is in the “South” camp.

Privatization focuses on the interaction of systems of governance operating at the local and international levels. – But unlike in India, those systems are autonomous and private;– grounded in the control and accountability mechanics of the market, not of the

state. Within this system, the state retains an important but background space.

• In China the government apparatus remained very much in the background as large multinational enterprises and supra national monitoring systems engaged in the formulation and remediation of adverse human rights consequences of social and economic rights developed and adopted through these private systems.

• Private entities remain accountable to the state for violations of law,– but principally accountable to each other and their transnational stakeholders for

the violation of rights developed and adopted through private systems existing as a supplement to those rights accorded to individuals by the state.

General Observations• Interesting Aspects

– Foxconn case study: the willingness of all actors to hold corporations to their governance obligations.

– Vedanta case study: SER more closely tied to civil and political rights; the powerful effect of soft law quasi judicial proceedings on the political responses of the Indian state.

The Big Picture• Looking at Vedanta and Foxconn/Apple together, it is apparent that the

development of systems of social and economic rights based governance systems within the private sphere can follow substantially different routes.

• Within China, the development is bounded up in the development of multinational systems of norms that can be used by groups of multinational corporations. The focus is on economic conditions and rule systems. Language is social and markets based.– The Chinese state and private spheres look to the ICESCR as a framework within which national

notions of social harmony within institutional and governance parameters may be operationalized. Custom and culture rather than rights and remedies, appear privileged.

• Within India, the development of social and economic based rights regimes are grounded in a sometimes contentious three way relationship between international organizations creating normative frameworks, the apparatus of the domestic legal order and international civil society. The language is rights based NOT markets based. – Indian state and private spheres still speak the language of law and rights—founded on the

privileging of the premises of the ICCPR.

The two approaches are becoming institutionalized

• Vedanta model:– Similar complaints have just been filed by a coalition of

Indian, South Korean, Dutch and Norwegian civil society organisations with the South Korean, Dutch and Norwegian NCPs concerning the Korean multinational POSCO .

• Foxconn– FLA-enterprise partnerships extending beyond Apple– Supply chain governance assuming more character of law system

through contract

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Thank You!!!