Tuesday, September 29, 2020

COVID, Control, and Complicity in Rwanda: A Brief Reflection on Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes


"Rwanda’s police force says the technology deployed in the fight against coronavirus will boost its ability to maintain order and security beyond the pandemic. 'Policing is more efficient with technology,' said police spokesman John Bosco Kabera . 'We are in a much better control of the situation than before.'”

“'Rwanda has set the standard, said Dr. Diafuka Saila-Ngita , a professor of infectious diseases at Tufts University in Massachusetts. 'It’s a model of what other low-income nations should do to respond better to health emergencies.”'(Rwanda’s Aggressive Approach to Covid Wins Plaudits—and Warnings)
How does one engage in human rights due diligence on a razor's edge?  How does one balance values based objectives that become irreconcilable? How does one choose the values that must be balanced?  To what extent are any such 'balancings'--the application of vaunted and much beloved principles of proportionality--merely serve as the polite means of veiling two quite distinct objectives: (1) human rights prioritization under (2) regimes of absolute liability for human rights harms. These are the questions that ought to haunt those might seek to rationalize not the normative value of human rights in economic activity, but the nesting of authority to make political decisions among human rights consequences of the consequences of business decisions.  It is particularly relevant to the gathering global consensus to make Europe the center of global authority for the (legal) disciplining of enterprise human rights activity through mandatory human rights due diligence statutes (e.g., Recommendations For New EU Legislation on Mandatory Human Rights and Environmental Due Diligence). 


A Rwandan police drone fitted with a megaphone flying in a Kigali neighborhood to enforce a coronavirus lockdown in April. Photo: Jean Bizimana/Reuters,

Rwanda's response to the COVID-19 serves as a great illustration of the problem that is the subject of these reflections.  It highlights  the way that the duty of states to protect human rights in pandemic may not merely fail to align with the corporate responsibility to respect human rights, but may create substantial human rights gaps--those spaces where the state duty to protect does not extend (by operation of the constraints of international law applied domestically to an unwilling state)  as far as the corporate responsibility to respect (grounded in the International Bill of Human Rights but covering all international human rights ). In that context, the risk falls not on the state, but rather on companies which provide goods and services to the state in ways that while alleviating one human rights risk (pandemic) may contribute to another (the deprivation of civil and political rights). The prevention, mitigation, and remedy principle then is converted into a delegation of global authority onto enterprises to serve as the risk bearers for the bad behavior of states.  Where enterprises face a situation that produces human rights harms whatever they do, then the perverseness of the result becomes acute.  That, of course, is precisely the case in the context of pandemic.
Th human rights fugue state is particularly important in the context of complicity (e.g., Human Rights Without Chinese Characteristics and Global Production Chains Within China: Xinjiang and Badger Sportswear as a Harbinger of Dissonance in Human Rights Risk Management; Disney criticised for filming Mulan in China's Xinjiang province (Hong Kong pro-democracy activist Joshua Wong has also condemned Disney, tweeting that viewers watching Mulan are "potentially complicit in the mass incarceration of Muslim Uighurs")).
Questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties. Complicity has both non-legal and legal meanings. As a non-legal matter, business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party. As a legal matter, most national jurisdictions prohibit complicity in the commission of a crime, and a number allow for criminal liability of business enterprises in such case. . . Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse. However, business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses. (UN Guiding Principles for Business and Human Rights ¶ 17 (Commentary)).

Principle 24 drives home the point:  "While business enterprises should address all their adverse human rights impacts, it may not always be possible to address them simultaneously. In the absence of specific legal guidance, if prioritization is necessary business enterprises should begin with those human rights impacts that would be most severe, recognizing that a delayed response may affect remediability."(UN Guiding Principles for Business and Human Rights ¶ 24 (Commentary)).

Increasingly, business activity is understood to carry with it the responsibility for making political determinations of future global consensus about the human rights consequences of governmental activities related--directly or indirectly--to their economic activities within that state.  Those determinations are to be made with much more sensitivity to international rather than national norms (laws, treaties, declarations and the like whether or not they have been incorporated into the domestic legal order of the offending state) and to the domestic application of those norms (as law and policy) of ether business home states or states that serve as key (economic or regulatory) markets (Xinjiang in the Crosshairs of the West: H&M and the Norwegian Pension Fund Global Add to the Pressure on Chinese Officials to Meet the Allegations of Human Rights Abuses).

Pix: Jan Vermeer (1656), The Procuress (Dresden)

The difficulties become more acute in the shadow of pandemic.  These have their origins in the tensions between the need to protect populations from a highly contagious pandemic the characteristics of which remain elusive against the need to preserve the (especially) civil and political rights of persons in states confronting pandemic. The problem in the first instance is that of states, who bear the public duty to protect their populations from the ravages of disease while ensuring that society continues to function in ways that does not otherwise threaten the economic, social and cultural rights of persons. . . and as well their political and civil rights. But states do not operate by means of magic--and even the use of the police power requires the instruments necessary to manifest power on its intended objects (mostly though not entirely individuals and group on the problematic nature of the later in the United States consider the New York City Mayors increasingly human  rights tainted interactions with the local Jewish community (here)). Economic enterprises remain crucial links between the desire of states to implement policy and their ability to do so.  Business sell medicines, professional services, technology, expertise, and other goods and services necessary for states to act.  It is in this secondary role--business as the "procurers" of the state--that their human rights responsibilities become acute, and especially in the context of complicity.

Rwanda serves as a case in point (Nicholas Bariyo, for the Wall Street Journal: "Rwanda’s Aggressive Approach to Covid Wins Plaudits—and Warnings: African country deployed drones and random testing to combat the pandemic, but some say the government is endangering civil liberties"). As Nicholas Bariyo notes, Rwanda has earned praise for its effective response to the challenges of pandemic in a developing state ("International health agencies and public-health experts have held up Rwanda—the most densely populated nation on the African mainland, where 13 million people live in an area roughly the size of Maryland—as a poster child for how to tackle the coronavirus on the continent.").

But that response, to be effective, has also required a certain level of ruthless focus on prevention, mitigation, and remediation. I use those terms at the heart of the normative framework of business and human rights for all of its irony n this context. Indeed, it is precisely because of a single minded effort to prevent, mitigate and remedy--the COVID virus--that the state, it has been alleged, now has failed to prevent, mitigate or remedy another set of human rights wrongs: "its strategy, built on a tightly enforced lockdown and other restrictions that have led to the arrests of more than 70,000 people for coronavirus-related infractions, has alarmed human-rights advocates, who say some of the measures are overly aggressive and have led to abuse and violence of those detained." ("Rwanda’s Aggressive Approach to Covid"). 

That problem--of Rwanda's duty to engage in some fort of human rights due diligence in furtherance of its comprehensive duty to protect (all) human rights--is one that tends to be left to the tender mercies of the politics of international relations.  And in any case, Rwanda is free to take the position that it is complying fully with all of those human rights duties it has undertaken either through those (limited) treaties to which it has acceded and whose obligations it has transposed into its domestic legal order--but only to the extent consistent with its constitutional traditions.  And there is nothing that anyone can faut Rwanda for that--except to suggest a misreading or to urge Rwanda to change either the basket of international obligation or the tenets of its constitutional order. That, indeed, is the essence of the First Pillar of the UN Guiding Principles for Business and Human Rights whose general principles make this clear: "Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights."

But enterprises are not states--and their responsibility to respect human rights is not limited to those recognized by the states with which they transact business, nor by the formal legal status of the norms they are expected to respect. t in in that human rights "dead space" between the human rights that enterprises are expected to respect and those that states have a duty to protect, where complicity can metastasize in ways that produce liability to enterprises--though not necessarily for the state. That space is populated by innocent enough transactions the products of which might be used to further what--after the fact--are concluded to constitute uses that harm the human rights of a population. There are any number of enterprises that might now have to exercise greater care in that respect: Bariyo reports, for example,

The government is using technology to minimize contact between patients and health workers. In several public hospitals, human-size robots, made by Belgium’s ZoraBots, relay messages about patients’ conditions to doctors, taking their temperature, delivering messages and detecting if patients aren’t wearing masks. They can also deliver medicine and food. The government has hired 60 drones owned by San Francisco-based Zipline Inc. to transport protective gear and Covid-19 test samples, as well as to ferry intravenous fluids to and from hospitals. ("Rwanda’s Aggressive Approach to Covid"). 

For such enterprises, the failure to engage in appropriate human rights due diligence may not shield them either from accusation (and markets based consequences) but also to legal liability. And that human rights due diligence appears to require constant monitoring of the use to which enterprise services or goods are put. Thus, an enterprise may be satisfied that  its transactions is human rights "clean" on sale but after determine that its product has been used to enable human rights harms. That might be the case in Rwanda--assuming, of course, that human rights harms have occurred--a determination that is not conclusive at the stage where accusations are made.

Human-rights groups say the government has stretched the boundaries of the law in arresting 70,000 people for coronavirus-related infractions such as violating night curfews, failing to wear masks or breaching social-distancing rules. Failure to wear a mask normally carries a $26 fine on the first offense, but those violating the guidelines more than twice can be jailed for up to one year. Many of those arrested have been detained in sports stadiums, where they have spent nights listening to public-health messages over loudspeakers and under the watch of armed guards, activists say. Some have reported being beaten or raped while detained, according to Human Rights Watch. Authorities provide little or no legal justification for the arrests and release most people after a few days, say human-rights groups. Journalists and opposition activists have been detained for attempting to chronicle alleged police beatings, according to Human Rights Watch. ("Rwanda’s Aggressive Approach to Covid").

Depending on the way that Rwandan authorities operate their COVID-19 interdiction program it is likely that not just providers of goods and services  for any aspect of that initiative will be swept into the issue of human rights violations, but also collateral providers.  Chief among them might be  internet platforms through which the policies are implemented (for example by the posting of pictures and the like; see, e.g.,  Karin Buhmann & Roxana Olivera (2020) 'Human rights and social media platforms: the corporate responsibility to respect human rights in regard to privacy infringements involving photo posting,' Australian Journal of Human Rights, 26:1, 124-141.

In such a context, the possibility of complicity is real, and the case for complicity grows with the production of evidence that the enterprise knew or should have known (through a reasonable human rights due diligence) of the possibility of the use of its products or services to cause human rights harms. At that stage the question centers on whether the product or service ought to be offered.  But the answer is not simple--the company, by withholding product or services , might itself directly cause human rights harms by impeding Rwanda's ability to meet the challenge of COVID. The company may add conditions to the transaction, but in many cases that is unrealistic.  It is here that UNGP Principle 22 comes into play.  The company would have to engage in a severity analysis--which action (engage in the transaction or not) causes the most severe and most likely irremediable harm.  On that basis it may act.  But in so acting it remains liable either directly or as a complicit party, for the human rights harms caused by preventing a different set of human rights harms. 

The same applies to decisions to cease providing services or products--especially in the context of pandemic--when a company becomes aware of its potential exposure as an enabler of human rights harms.  And the harm trigger is measured against the corporate responsibility to respect rather than the state duty to protect human rights.  The enterprise, in this cases, becomes the global ensurer of human rights compliance--and the surety for the state.  In effect, where human rights harms cannot be avoided it is the enterprise that bears the responsibility both to act to further one set of human rights and to remedy the resulting human rights harms thereby caused. The resulting business risk becomes legal risk when the severity of the consequences becomes great enough; and it will certainly become legal risk under mandatory human rights due diligence regimes whose reach will be projected from one sovereign entity (e.g. the EU) to another (e.g. Rwanda). 

This then exposes a certain perverse effect of the UNGPs and a much larger issue where the societal risk of noncompliance under the UNGP is transformed into legal risk under mandatory human rights due diligence statutes.  It seems somewhat perverse that states (and in this case clusters of the richest states on earth) would produce a piece of legislation (for all the right reasons of course) that effectively shifts the costs of sovereign responsibility from the sovereign to the enterprises with which it deals. Yet that is effectively what regimes of complicity manage to accomplish (again for all the right reasons from a human rights perspective). 

Even in states without mandatory due diligence provisions, informal and 'soft' policy may push enterprises into 'hardening' regimes of human rights due diligence.  For example, in September 2020 the United States Department of State, distributed its Guidance on Implementing the UN Guiding Principles for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities.  The resulting fugue state is remarkable: almost simultaneously the United States declines to embed the broad range of human rights under its UNGP First Pillar duty to protect human rights (as is its right and duty in fidelity to its own constitutional traditions) while encouraging the economic instrumentalists it creates or controls  to apply those very human rights standards abroad in their economic activities under the UNGP Second Pillar. The resulting gap  is consciously produced. 

This guidance is not intended to, nor should it be interpreted as, imposing requirements under U.S. law or regulations. The language contained in this document should not be conflated with the regulatory requirements for exporters under the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), or any other U.S. government export control regime. . . This guidance will be particularly helpful for U.S. businesses that want to undertake a human rights review where the U.S. government does not require an authorization for export.(Ibid., p.1)

 These are no accidental results.  A system that shifts risks to the larger enterprises on earth creates incentives for them to pressure (especially poor, developing) states or states that lack capacity, to comply with international standards satisfactory to developed states and to the non-governmental organizations based there.  The universalization of a common position on human rights, then, would be effectuated not through multilateral consensus among states in international organizations, but through the disciplinary power of the market driven by private actors onto which the burdens of responsibility have been delegated.

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