Daniel Augenstein on "Free Trade, Football and Beer: What’s in for Human Rights?"

My friend and colleague Daniel Augenstein is Associate Professor in the Department of European and International Public Law at Tilburg University. He presently works as a Senior Humboldt Research Fellow at the Wissenschaftszentrum Berlin on a monograph on business and human rights. Contact: D.H.Augenstein@uvt.nl.

Professor Augenstein has been at the forefront of intellectual movements in law and society for a number of years. His research focuses on human rights in their national-constitutional, trans-national and international contexts. It inquires the potential and limitations of effective human rights protection in a globalised world where different domestic, European and international human rights regimes become increasingly interconnected. His writings are always worth reading carefully.

He has recently produced a fascinating essay for Law at the End of the Day: "Free Trade, Football and Beer: What’s in for Human Rights?" It appears below.

Free Trade, Football and Beer: What’s in for Human Rights?
Daniel Augenstein

The modern human rights tradition as it evolved in the West after the 18th century revolutions in France and the United States has tied their legal protection to the democratic constitutional state. From the American and French Declarations of the ‘Rights of Man’ to the Universal Declaration of Human Rights (UDHR), human rights have been treated as an integral part of the ‘social contract’ between the state and its citizens. At the domestic-constitutional level, human rights law structures the relationship between rulers and ruled (the government and the people) by imposing obligations on the state’s public authorities for the benefit of private individuals located on the state’s territory. This is mirrored at the international level where states legally oblige each other to respect, protect and fulfill the human rights of private individuals located on their own territory in relation to acts of their own public authorities. However, the normativity of human rights is not exhausted by their institutionalization in the state legal order but at the same time subjects this order to conditions of moral and political legitimacy. In this vein, the Preamble of the UDHR makes the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’ the ‘foundation of freedom, justice and peace in the world’. Moreover, human rights not only avouch ‘liberal’ rights of defense against the state but also ‘republican’ rights to political participation in the definition of the public good. This explains, from a political perspective, the modern enclosure of universal human rights in the institutional form of the democratic constitutional state.

(French Declaration public domain)

 The challenges to international human rights protection that arise from the tension between a state-centered approach to law and politics and patterns of global economic cooperation and competition are by now well-known and documented. These challenges manifest themselves in the significant (negative as well as positive) human rights impacts of private actors – most prominently so-called ‘multi-national’ or ‘trans-national’ corporations – that are traditionally not directly bound by states’ constitutional and public international law. Moreover, economic globalization entails that the causes of human rights violations are increasingly found in the ‘trans-national’ realm, that is, beyond the territorial sovereignty of any particular state. It may thus appear that the legal confinement of human rights to the public and territorial state is less and less capable of effectively responding to global problems (such as the closely related issues of climate change, poverty alleviation, and migration). At the same time, there is the sometimes diffuse but not unjustified impression that decisions which affect fundamental interests of the citizen are increasingly taken outside the democratic fore of the constitutional state – be it in the headquarters of ‘multi-national’ corporations or the committees of international governmental and non-governmental organizations. Two examples:

(1) In many Member States of the European Union, citizens currently demonstrate against the Free Trade Agreements (FTAs) TTIP (EU-US) and CETA (EU-Canada), among others because they are concerned that the subjection of investment disputes to international arbitration may undermine the state-based protection of human rights. International arbitration enables private investors to sue states directly for alleged violations of the FTA’s investment guarantees. Such investment guarantees can curtail the state’s political room for maneuver, including for the protection of human rights and the environment (an issue that the TTIP negotiators intend to address in a separate sustainability chapter). Moreover, the purpose and organization of the arbitration tribunals may well raise concerns that they will primarily serve the economic interests of private foreign investors on both sides of the Atlantic. Nevertheless, the suddenness of the political protest is somewhat surprising, given that Europe looks back on a long tradition of using FTAs to protect the interests of its own corporations, particularly in relation to ‘developing’ countries. Equally surprising is the reaction of the Commissioner of the European Union responsible for the trade negotiations, who publicly denounced any direct political accountability to Europe’s electorates: ‘I do not take my mandate from the European people’. From both perspectives one may wonder whether it is still plausible or justified to put the democratic constitutional state center-stage in the international protection of human rights.

Meanwhile, angry consumers in the Western world force ‘multi-national’ corporations into a legally binding agreement with trade unions concerning the protection of human and labor rights in Bangladesh, which also includes a provision for international arbitration. The history of the ‘Rana Plaza’ Accord on Fire and Building Safety in Bangladesh tells a different story of the tension between economic globalization and the state-centered protection of human rights. Still in March 2010, the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) – one of the largest employers’ organizations in the local textile industry – had warned international buyers that their attempt to ‘privately’ introduce a subsistence wage was not only imprudent and undesirable but also in violation of domestic law. Part of the problem is the global competition for cheap clothing (a number of international corporations already buy their garments in lower-wage low-wage countries) and a corresponding intermeshing of the economic interests of local producers and public authorities, sometimes in personal union. It took the collapse of an eight-storyed factory hall and the death of more than 1000 workers near the capital Dhaka in April 2013 for the inhuman working conditions in Bangladesh’s garment industry to come under the scrutiny of international public opinion. After years of failure on the part of the People’s Republic of Bangladesh and the international state community to ensure the protection of human and labor rights, a solution that secures these rights through a ‘private’ legal agreement between global corporations and trade unions may yet prove a more promising approach.

(Collapse of the Rana Plaza Factory (Reuters))

-->(2) For a long time, the Fédération Internationale de Football Association (FIFA) was mainly known for its organization of World Football Championships and their commercialization, among others in the form of a computer game by the same name. From a legal perspective, not much distinguishes FIFA – a private charity organization with seat in Zurich – from the football club next door. Were it not for the (given its non-profit nature) astonishing club funds of estimated 1.2 billion Euro and the fact that the choice of incorporation in Switzerland has (pardon!) preciously little to do with quality of the local football. And of course the circumstance that the FBI and US law enforcement agencies have taken an interest in the financial dealings of some of the board members, which revealed one of the larger global corruption scandals in recent years. Yet FIFA has also been associated with human rights violations in the host countries of the World Cups. It was on insistence of the Swiss private charity that South Africa established so-called ‘FIFA World Cup Courts’ that dealt with ‘crimes’ committed during the championship in accelerated proceedings that restricted constitutional rights. Some of the cases heart by these courts, such as the one of two Dutch women accused of ambush marketing for a brewery under the Fifa World Cup Special Measures Act because they had entered the stadium in orange clothing, may strike one simply as a waste of scarce judicial resources. More serious is the case of two Zimbabwean citizens who, only 48 hours after allegedly having robbed a group of foreign journalists, could embark on their fifteen years prison sentence.

(Dutch Football Fans in South Africa (Guardian / Andrew Boyers, Action Images))

During the preparations for the World Football Championship in Brazil, a Special Rapporteur of the UN Human Rights Council admonished the human rights impacts of forced evictions and the resettlement of the local population without adequate consultation and compensation in the course of major infrastructure projects realized under the aegis of FIFA. Also in Brazil ‘beer’ was in the spotlight, this time because the Swiss charity that advertises against drugs in sport successfully defended the interests of its sponsors by setting aside the Brazilian prohibition on sales of alcoholic beverages in football stadiums. Around the stadiums, public order concerns were used to justify the establishment of exclusion zones for local businessmen, patrolled by FIFA-supervised private security providers. Retrospectively, there are good reasons to doubt that the World Cup has truly ‘enriched’ the majority of Brazilians or benefited the country’s general welfare. Apart from corruption scandals and concerns about (literally) overheated football players, the anticipation of the 2020 tournament is overshadowed by debates about the exploitation and inhuman working conditions of Qatar’s ‘World Cup slaves’. The country and its national football association have long disputed allegations of human rights violations, and European corporations that participate in the investment project Qatar (among them the French Bouygues and Vinci, and the German Deutsche Bahn, Hochtief, Siemens and ThyssenKrupp) maintain a low profile. FIFA, by contrast, is increasingly put under political pressure by human rights NGOs such as Human Rights Watch and Amnesty International and international organizations including the International Labor Organization (ILO) and the Organization for Economic Cooperation and Development (OECD). In October 2015, the Swiss National Contact Point established under the OECD Guidelines for Multinational Enterprises held FIFA responsible for the upholding of human and labor rights of workers employed in Qatar on World Cup related projects. Indeed, it would appear that the Swiss private organization that has now entered into negotiations with Qatar to improve the conditions of migrant workers is about to overcome its traditional political apathy (football is not about politics).

 (Safety personnel at a Qatar World Cup construction site (libcom.org))

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Additionally, FIFA’s executive committee has decided to incorporate the UN Guiding Principles on Business and Human Rights (UNGPs) into its bidding regulations for future World Cups, and to make their provisions compulsory for its contractual partners and corporations in the supply chain. The ‘corporate responsibility to respect human rights’ laid down in the second pillar of the UNGPs – which as so-called international ‘soft-law’ lacks direct legal effect – thus becomes legally binding via a private contract between the parties involved. This means that FIFA and their contractors will have to respect all human rights recognized in public international law, and to address adverse human rights impacts by taking adequate measures for their prevention, mitigation and remediation. The corporate responsibility for human rights exists independently of states’ ability and/or willingness to fulfill their own human rights obligations. Moreover, it entails that FIFA will in future have to abstain from pursuing its economic interests at the cost of undermining states’ policy space for protecting human rights, including through actions that weaken the integrity of the judicial process.

This leads us back to the more principled question of the future of international human rights protection under conditions of economic globalization. The increasing relevance of business activities to human rights and the global intermeshing of geopolitical with economic interests do not mean that the normative premises of the democratic constitutional state that circumscribes human rights both functionally (the distinction between public and private law) and territorially were outdated. However, the discussed examples may be indicative of a process of transformation in which the boundaries between public and private, between local (territorial) and global, and last but not least between law, politics, and economics, are once again up for grabs. What, for instance, are the systemic reasons for the failure of the international state community to protect human and labor rights in Bangladesh? Or, why do lawyers (in the United States) treat the FIFA scandal primarily as a white-collar crime, with at best a cursory nod to international human rights law? From a theoretical perspective, these questions touch among others on the challenge of recovering a critical political public for human rights beyond the legal confines of the democratic constitutional state. In the area of ‘public’ law, this quest finds an expression in the traditions of global administrative and global constitutional law. In ‘private’ law, we discuss the constitutionalization of transnational private regulation and uncover the political origins of international economic law. From the perspective of legal practice, the transformation of the global legal landscape entails that lawyers and law students will increasingly have to ponder questions such as how human rights may be meaningfully integrated into corporate practice, or how law can still do justice to victims of human rights violations in the proverbial ‘global village’.