Tuesday, January 01, 2013

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

(Pix (c) Larry Catá Backer 2012)

My contribution for that conference was entitled Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India.  The Power Point of this presentation has been posted and can be ACCESSED HERE.  

A more elaborate version of the conference paper has just been posted to the Social Science Research Network website and can be accessed here under the title: Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China. 

The post includes the Abstract and the Introduction of the paper, which follow.  

(Pix from Peter Drysdale, China and India as strategic partners, East Asia Forum, July 16, 2012 )

Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China.
Larry Catá Backer ( )[1]

Abstract: 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. The state, and public international organizations have been making room for the multinational corporation and global civil society.  In lieu of a hierarchically arranged global system of public power managing socio-economic rights, governance fracture and polycentricity have complicated the regulatory landscape, making it sometimes harder to see where public law ends and private affairs begin. This study examines the ways in which the development of socio-economic rights has moved beyond the state in two of the most important emerging free market economies—China and India. After an Introduction setting out the current formal division of human rights between political and civil rights (a focus of the Global North discourse) and social and economic rights (a focus of Global South discourse), Part II briefly focuses on the way in which social and economic rights are understood within India and China. Part III then considers two case studies as a means of structuring discussion; the first from India involving two large multinational enterprises and the rights based approach; the second from China involving the development of complex administrative and rules based private CSR codes of conduct.  Part IV concludes with some general observations about globalization, privatization and the advancement of human rights regimes. In China, privatization is grounded in state obligation, administrative approaches and private rule systems.  In India, privatization is grounded in individual rights based and civil and political rights based judicial approaches. Though both incorporate international norms, they achieve this incorporation in substantially different ways. These will serve to suggest the ways in which both privatization and corporate actors now play an increasingly important role in realizing socio-economic rights, and the way approaches to economic and social rights are fracturing at the private as well as the public law level. Indeed, within the forms of privatized frameworks for the development of economic and social rights India and China evidence the ways in which political division has now also been privatized and replicated – providing an additional space within which the tensions already quite evident in the state system’s difficulties with human rights may be replayed.

I. Introduction.

Modern human rights can be understood as emerging in its current form from the settlement among the allies for a new world order in 1945.[2] The core premises of this new world order settlement were simple, and they tended to cement trends that had been long in the process of maturation.[3]  First, authority over people and things was to be centered in states.  Second, states were to be defined in terms of territory and the ability to control specifically demarcated geographic spaces. Third, the legitimacy of states within their territories was to be recognized and protected by the community of states, organized within an institutional structure.  Fourth, all states were to be accorded equal rights within the community of states, but subject to the leadership of the most powerful states organized as a council of security. Fifth, while territory was protected, the governments of states were not; each was subject to increasingly stringent standards meant to determine the legitimacy of government (and thus the obligation of people to respect its power and other states to recognize its authority). Sixth, this community of states was empowered to develop normative standards that would (eventually) serve as the framework of a binding and common culture of conduct that each state would be bound to protect.[4]  This system has neither been completely implemented, nor has it been free of controversy or subject to intense resistance.  Still, the basic ideas—that authority is organized through states that hold political power and that together create globally significant substantive standards, has been a powerfully influential structure that guides much of the discourse of rights.[5]  

Within this construct, human rights as been among the system’s earliest and most important projects.  The initial project was targeted to aspirational goals but set the framework within which most subsequent activity was framed.  The culmination of those efforts resulted in the Universal Declaration of Human Rights (UDHR).[6] Though not autonomously binding as a treaty, it was meant to serve as a basis for interpreting the references to human rights and fundamental freedoms in the United Nations Charter.[7] Some have argued that it was also meant to structure the development of customary international law as well.

But the development of a normative structure for human rights in the form of the UDHR and its attempted articulation as international law (binding on states alone) produced fracture. The UDHR’s catalogue of rights was divided.  On the one side were grouped what became civil and political rights.  These were eventually memorialized in the International Covenant on Civil and Political Rights (ICCPR).[8]  On the other were economic, social and cultural rights, eventually memorialized in the International Covenant on Economic, Social and Cultural Rights (ICESCR).[9]  While most every state eventually subscribed in one form or another to the UDHR, the same cannot be said for either convention.[10]   More importantly, the division of the intertwined rights structure of the UDHR into two distinct treaty regimes suggested a hierarchy to human rights,[11] one which states were more free to accept or reject as law in accordance with their national policy.[12]  However, non-binding international consensus has striven to join together what the two covenants managed to separate,[13] but not entirely successfully. “Some scholars assert that even if considered indivisible, human rights have a basic hierarchy of first-generation rights (civil and political, such as the right to life and participation politically), second-generation rights (economic, social, and cultural, such as a right to subsistence), and third-generation rights (“solidarity rights” or “collective rights,” rather than individual rights).[14] Others suggested that social and economic rights might impair the development of civil and political rights.[15]

Most discussion of human rights has taken place within this context, for example the debate about human rights and universal values.[16] This is a context centered on the state as the principal actor with obligations toward individuals and others. And it is a field that is essentially bounded by the quasi-legislative and normative field-defining products of those institutions that represent the community of states—a development of regimes of hortatory, customary and conventional international law on human rights in general, and those imposing obligations on states relating to the social, economic and cultural rights of individuals in particular.  That discursive approach marks even the way in which arguments are constructed justifying the avoidance by certain states, notably the United States, to embrace international standards of economic, social and cultural rights.[17]

Moreover, the division of human rights into an ICCPR and an ICESCR reflects more than convenience.  To some extent it reflects increasingly widening divisions between developing states and developed states (the Global North-South divide[18]) and between states that have incorporated into their constitutional orders an explicit or implicit hierarchy of rights in which either civil and political or economic and social are accorded pride of place. Those tensions might also describe the foundation of differences in the approach to human rights in China and India. India sits somewhat uncomfortably but deeply in the “North” camp—one in which civil and political rights have been accorded a greater significance than economic and social rights, at least to some extent. China, on the other hand, is better placed in the “South” camp, one in which civil and political rights are accorded a less prominent place than economic and social rights.[19]  Or perhaps better put: in India social and economic rights are developed within a framework of political and civil rights centered on the individual as the bearer of rights;[20] in China social and economic rights provide a framework within which political and civil rights are organized centered on the state as the bearer of obligations to its citizens the fulfillment of which is central to the legitimacy of the government.[21] However understood, the consequence is quite significant—there has emerged a fragmentation in versions of the composition and order of importance of fundamental human rights.

The fragmentation inherent in divisions within public law has only been increased by globalization.[22] More importantly, globalization has begun to undermine the post-1945 human rights framework within which human rights are treated as the sole preserve of states and the state system.[23]  Even within the state system itself, there has been a movement to begin to treat non-state actors as burdened directly by international human rights obligations, and to carve out a space within which corporations, for example, have human rights obligations autonomous of those borne by states.[24] As a consequence, the project of embedding social and economic rights within polities has become an object of privatization, yet also one that has extended public law norms (and the different approaches of public law) to private actors.[25] Globalization thus has made it possible to consider what would have been impossible even before the last decade of the 20th century—the possibility that the development of global norms touching on the economic, social and cultural rights (along with civil and political rights) of individuals might be undertaken not only by states but also by non-state actors and particularly by large economic enterprises.[26] This development suggests that the tensions inherent in incorporating robust programs of social and economic rights in India and China by non-state actors may reflect the same tensions and approaches that mark the responses of each state to these issues.  At the same time, globalization, and its shift of focus from state to private action, may suggest the ways in which these national approaches may still find distinct application when undertaken through markets rather than through the political apparatus of these states. 

Privatization and its effects on the implementation of regimes of protections of economic and social rights, then, serves as the focus of this article. This focus can be usefully divided into two essentially inter-related questions.  The first is institutional in nature—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.  The second touches on process and substance—what accounts for the differences in the expression and vindication of economic and social rights between China and India?  Part II sets the context, focusing on the way in which social and economic rights are understood within India and China. It suggests the ways in which the structural relationships between civil, political, economic and social rights affect the form and character of implementation.  Part III is the heart of the article, suggesting the role of globalization and privatization of human rights obligations through two case studies, one from India and the other from China.  These also evidence the way in which the tensions between North and South, between prioritization of political and civil or economic and social rights, play out quite differently in within private sector incorporation of these norms in China and India. 

Part IV concludes with some general observations about globalization, privatization and the advancement of human rights regimes. In China, social and economic rights are understood as obligations and burdens on the state that it owes to the people; in India, these rights are understood as inherent in the individual and individual dignity, which may be asserted through the courts, but not national courts, rather international dispute resolution tribunals applying supra national norms. These patterns are replicated as social and economic rights are privatized in each state. These lessons are essential for understanding the way in which social and economic rights can be naturalized and implemented in states.[27] 

[1] W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs 2012-13 Chair University Faculty Senate, Pennsylvania State University.  This paper was first presented at the 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.  My thanks to Surya Deva of the City University of Hong Kong for organizing an excellent conference. Special thanks to my research assistant Keren Wang (Penn State MIA expected 2013) for his usual excellent work on this chapter.
[2] “The idea of individual human rights, particularly as an outgrowth of the human rights violations that savaged the world during World War II, has become an anchor of the international legal system. [FN187] As a field, international human rights law is centered on asserting the rights of all mankind and, subsequently, on ensuring that states guarantee and respect these rights.” Alexandra R. Harrington,  Don’t Mind the Gap: The Ride of Individual Complaint Mechanisms Within International Human Rights Treaties, 22 Duke J. Comp. & Int'l L. 153, 177 (2012).  
[3] Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 27 Mississippi College Law Review 11 (2008)
[4] See, Dan Moore, Reconciling Normative Dissonance in Canada and New Zealand:  Comparing Juridical and Political Paths to Children’s Rights Implementation, 68 University of Toronto Faculty Law Review 33, 36 (2010). Human rights conventions are the product of political contestation and consensus-building within a distinct transnational community of diplomats, lawyers, and activists.
[5] See, e.g., Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 37 (University of Chicago: Chicago, 2005).
[6] Universal Declaration of Human Rights, adopted 10 December 1948, Paris, France. G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948)
[7] To that end, it might be understood, strictly, as a constitutive document fo the United Nations, though one whose application is not necessarily entirely binding.  See, e.g.,
[8] International Covenant on Civil and Political Rights, Dec.16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, 6 I.L.M. 368 (1967)
[9] International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), (Dec. 16, 1966), available at http:// www2.ohchr.org/english/law/pdf/cescr.pdf.  
[10] See, e.g.,  Alexandra R. Harrington,  Don’t Mind the Gap: The Ride of Individual Complaint Mechanisms Within International Human Rights Treaties, 22 Duke J. Comp. & Int'l L. 153, 159-166 (2012).   Most states have acceded to the ICCPR, not all.  China has signed but not ratified, along with Comoros, Cuba, Nauru, Palau, Sao Tomé and Principe and Saint Lucia. A number of states have neither signed nor ratified the ICCPR including Malaysia, Saudi Arabia, Singapore and a number of Gulf and Caribbean states.  Fewer states have acceded to the ICESCR.  Among the most important states that have failed to ratify include the United States, Cuba and South Africa.  States that have neither signed nor ratified include Malaysia, Saudi Arabia, Mozambique, Singapore, and a number of Gulf and Caribbean states.  More importantly, a number of states have included substantial reservations to their accession.  China restricts labor rights in a manner consistent with domestic law. India limits the right to self-determination, and subordinates the right to equal opportunity to domestic law.
[11] On the concept of hierarchy in human rights, see generally, Theodore Meron, On a Hierarchy of International Human Rights, 80(1) American Journal of International Law 1 (1986).
[12] For an interesting analysis in the context of Caribbean states, see, Laurence R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002).
[13]All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” Vienna Declaration and Programme of Action, World Conference on Human Rights, U.N. Doc. A/CONF. 57/123, 12 July 1993.
[14] Yaser Khalaileh, A Right To A Clean Environment In The Middle East: Opportunities To Embrace Or Reject, 42 Envtl. L. Rep. News & Analysis 10280, 10287 (2012). See generally, Kristin N. Wuerffel, Discrimination Among Rights? A Nation's Legislating a Hierarchy of Human Rights in the Context of International Human Rights Customary Law, 33 Val. U. L. Rev. 369, 396-402 (1998).
[15] Albie Sachs, A Bill of Rights for South Africa: Areas of Agreement and Disagreement, 21 Colum.Hum.Rts.L.Rev. 13, 23-24 (1989).
[16] See, e.g., Michael Freeman, Human Rights and Real Cultures: Towards a Dialogue on ‘Asian Values', 16 Netherlands Hum. Rts Q., 25 (1998); Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, 8 Int’l J.L. Pol’y & Fam. 1 (1994); Michael J. Perry, Are Human Rights Universal? The Relativist Challenge and Related Matters, 19 Hum. Rts. Q. 461 (1997).
[17] See, e.g., Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, 56 Syracuse L. Rev. 1 (2005-06).
[18] See, e.g., Reuven S. Avi-Yonah, Bridging the North/South Divide: International Redistribution and Tax Competition, 26 Mich. J. Int'l L. 371, 371 (2004).
[19] For example:
A recent statement by the Premier of China, Jiang Zemin, serves as an excellent example of the subjectivity involved in choosing fundamental rights. When asked about the many civil and political rights refused to his country's citizens as well as the many political prisoners within China, Premier Zemin responded by stating, “I believe the most important, the most fundamental human right is how to ensure that the 1.2 billion Chinese people have adequate food and clothing.”
Kristin N. Wuerffel, Discrimination Among Rights? A Nation's Legislating a Hierarchy of Human Rights in the Context of International Human Rights Customary Law, 33 Val. U. L. Rev. 369, 399-400 (1998).
[20] See, e.g., Navish Jheelan, The Enforceability of Socio-Economic Rights, 12 Eur. Hum. Rts. L. Rev. 146 (2007); Jayna Kothari, Social Rights Litigation in India: Developments of the Last Decade, in Exploring Social Rights 171 (Daphne Barak-Erez & Aeyal Gross eds., 2007). 
[21] See, e.g., Larry Catá Backer, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30(1) Boston University International Law Journal 331-408 (2012).
[22] “It is a well-known paradox of globalization that while it has led to increasing uniformization of social life around the world, it has also led to its increasing fragmentation--that is, to the emergence of specialized and relatively autonomous spheres of social action and structure.” Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Rep. of the Study Grp. of the Int'l Law Comm'n., 58th sess, May 1-June 9, July 3-Aug. 11, 2006, P 7, U.N. Doc. A/CN.4/L.682.  See generally, Larry Catá Backer,  The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17(2) Tilburg Law Review 177 (2012).
[23] See, e.g., Larry Catá Backer, Governance Without Government:  An Overview, in Beyond Territoriality:  Transnational Legal Authority In An Age Of Globalization 87-123 (Günther Handl, Joachim Zekoll, Peer Zumbansen, editors, Leiden, Netherlands & Boston, MA: Martinus Nijhoff, 2012).
[24] See, e.g., Larry Catá Backer, From Institutional Misalignments to Socially Sustainable Governance:  The Guiding Principles for the Implementation of the United Nation’s “Protect, Respect and Remedy” and the Construction of Inter-Systemic Global Governance, 25(1) Pacific McGeorge Global Business & Development Law Journal 69-171 (2012); Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 Columbia Human Rights Law Review 287 (2006).
[25] Jody Freeman, Extending Public Accountability Through Privatization: From Public Law to Publicization, in Public Accountability: Designs, Dilemmas and Experiences 83, 104-109 (Michael W. Dowdle, ed., Cambridge: Cambridge University Press, 2006).
[26] John G. Ruggie, Taking Embedded Liberalism Global: The Corporate Connection in Taming Globalization: Frontiers of Governance 93, 104 (David Held & Mathias Koenig-Archibugi, eds., Cambridge: Polity Press, 2003).
[27] Michael Dowdle’s constitutional insight is equally applicable here: “Traditional Anglo-American analyses of constitutional development focus overwhelmingly—some suggest obsessively—on courts.  But, as many have noted, courts may actually ne ill-suited institutionally for propagating social norms.” Michael W. Dowdle, Public Accountability in Alien Terrain:  Exploring for Constitutional Accountability in the People’s Republic of China, in Public Accountability: Designs, Dilemmas and Experiences 329, 357 (Michael W. Dowdle, ed., Cambridge: Cambridge University Press, 2006).

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