Tuesday, October 20, 2020

Human Rights Society at Penn State Law & SIA: Roundtable Discussion on "COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes"



I was delighted to accept an invitation from the our students in the Human Rights Society at Penn State Law & SIA to participate in a round table discussion of the issues raised in in a discussion draft recently completed: "COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes." The Round Table will take place (virtually) Wednesday 21 October 2020 at 5 pm (1700) US East Coast Time.

The discussion will be structured around a quite straightforward problem which is set out below along with the Zoom connection information Discussion will focus on its real life analogue, the case of Rwanda where the issue of complicity and the use of enterprises to change state behavior, is much in evidence. 

The problem is meant to highlight emerging issues where the human rights responsibilities of enterprises and the state duty to protect human rights may not align.  It also focuses on the consequences of the generation long project of delegating private regulatory authority to transnational actors through programs of compliance and reporting. The resulting shift in regulatory authority moves the center of human rights regulation from the public law of states and international actors to the private law of private actors managing transnational production chains.  Lastly, it considers the consequences for human rights of the slow but steady move to a tort-compliance foundation for managing conduct in this field. That it, it examines the institutional behavior incentives when the state takes human rights risks but the enterprises bear the obligation to remedy resulting harms from that risk taking. This responsibility shifting at the heart of current approaches to the regulation of the human rights consequences of enterprise behaviors (even in the context of their relations with states) create an important conceptual dead space between the compliance based administrative regulatory model of public law and the markets driven tort  model of private law. 

The discussion draft may be accessed here: Larry Catá Backer, COVID, Control, and Complicity in Rwanda: Human Rights Intersectionality in the Dead Spaces between Legal and Markets Regimes, CPE Working Paper 10/1 (October 20, 2020). Available < https://www.thecpe.org/wp-content/uploads/2020/10/Backer_COVID_Complicity_Rwanda_CPEWP10-1.pdf> .

PowerPoint may be accessed HERE.



Enterprise X produces Product Y with substantial surveillance capabilities.  Usually these products are used by other enterprises to control theft and to ensure worker safety in plants.  But recently state and municipal governments have been purchasing Product Y to implement policies of public safety, and more recently, of monitoring the behavior of local law enforcement personnel. Recently, and in response to the COVID pandemic, both private enterprises and governments have begun to use Product Y to implement mandatory policies for meeting the challenges of the pandemic.  Product Y has proven quite useful in identifying potentially sick people, but even more effective in policing mandatory rules for social distancing, gathering sizes, and mask wearing.  Enterprise X has made a lot of money through its rental and purchase programs of Product Y.  More recently Enterprise X has also offered monitoring services as well as analytics capabilities along with rental or purchase of Product Y, all for additional fees. 

The Republic of Z has recently contacted Enterprise X for the purpose of renting Product Y. The Republic of Z is a small developing state in Africa that has a long history of both democratic government, and of ethnic strife and political instability that has resulted in many deaths. The current government has been democratically elected but there have been complaints by some political actors of efforts by the government to intimidate or suppress their oppositional activities.  

The Republic of Z, however, was also the first state in the region to meet the challenge of COVID, and to do so successfully.  To that end it adopted measures for contact tracing and imposed a set of mandatory rules including social distancing rules, rules limiting in person meetings and prohibiting rallies of any sort, and mandatory mask wearing rules.  In addition, the Republic of Z has mandated that all people within its territory register (as part of a contact tracing program), and download an app to their mobile devices that permits the Department of Health to track them at all times.  People have complained that the Ministry of State Security has also been granted access to that database but only upon application for a writ to a court. Violation of the rules can result in civil and criminal penalties depending on the severity of the offense, as defined by law. 

As a result of these measures the Republic of Z has developed what the World Health Organization has labelled a "gold star" response to COVID. Infection and hospitalization rates are the lowest in Africa, and the strain on medical facilities has been minimal. But it has also meant that the Republic of Z has closed its borders to all actors, and even representatives of foreign, international organization and civil society actors with programs in the Republic have had difficulty entering the country--and all are subject both to surveillance and a mandatory quarantine (at their expense) for 14 days. Recently reports have emerged that people have complained that the government has targeted its political enemies for especially harsh treatment using the anti-COVID provisions. If true, these measures and actions would constitute a clear breach of the civil and political rights of those individuals.  Opposition figures also complain about the suppression of rallies and other meeting.  But they have not been targeted and they have not been impeded in their use of all virtual means to continue their work. However, recent reports suggest that the police have looked the other way when the government hosted large gatherings and rallies.

The rental or sale of Product Y to the Republic of Z will clearly contribute significantly to the health of its residents.  At the same time, the potential for abuse remains undiminished.   Enterprise X believes that it may have a positive obligation to contribute to the continued health and safety of the residents of the Republic of Z, yet they understand that by aiding in the Republic's anti-COVID measures they may be complicit in the potentially severe breaches of civil and political rights of individuals in the Republic.  Should Enterprise X enter into a lease or sale agreement for Product Y with the Republic of Z; would it make a difference if the sale or lease also included the provision of surveillance and analytics services?

The zoom link is: https://psu.zoom.us/j/99580116596

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