4th AsianSIL Biennial Conference, Dehli India
Nov. 24-16, 2013

Polycentricity in South Asian Human Rights Law: On the
Str...
Context
• Over the last generation there have been significant
advances in the development of international substantive
st...
Embedding?
• This development
– is in line with advances in law that have been framed around the
rights of individuals und...
Issue: Incoherence
• Yet increasingly those rules and frameworks may not be
enough:
• Produce incoherence
– Regulatory Inc...
Challenge
• From incoherence to polycentricity?
– Traditional analytical framework not helpful
• focuses only on the state...
Inquiry
• How is an individual (or an MNC) to protect or vindicate
their rights in this emerging polycentric universe?
– F...
Questions
– to what extent has polycentricity in governace
changed the regulatory universe within which
individuals can pr...
Roadmap:
• Part I sets the context, considering the contours of
emerging polycentric governance.

• Part II considers the ...
Polycentricity

I
From Stability to Globalization
• Traditional state-based conceptual framework
– State at the center of governance; suprem...
Enter Polycentric Systemicity
– Rise of autonomous regulatory systems that implement human
rights
• Systems are transnatio...
From One to Many
• Three important forms for business and human rights in
South Asia
– Supplier Codes of Conduct and 3rd p...
From Public to Private
• Private Governance SystemsThird Party standards
creators/disclosure systems organizations
• ISO; ...
From Legal to Societal Norms
• OECD Guiding Principles for Multinational Enterprises
– Voluntary principles addressed by g...
India Within the Web of
Governance
India
• In India, human rights are constructed within a law-based
discourse.
– Those obligations are vindicated through ju...
Judicial Rights
• In India, the state Supreme Court, its government and parliament,
played an important role in interactio...
Scope of Judicial Activism
•
•
•
•

Judicial law making the core
Legal Aid movement
Legal aid camps
Social Action groups e...
Limitations of the Judicial Model?
• National law may be ineffectively where remedies and
claims flow out of India within ...
Asian Values?
• Compare China
– Reject “rights” model in favor of administrative model
• focused on obedience to law
• Per...
The Case Studies:
When Domestic Law Fails, Go
International!
Vedanta

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

--Niyamgiri Hills
--Dongria Kondh; indige...
Vedanta II
• Norway Sovereign Wealth Fund:
– The Ethics Council determined, on the basis of its investigation, that “it is...
Unilever-India and Pakistan
• International Food, Agricultural, Hotel, Restaurant, Catering, Tobacco
and Allied Workers’ A...
Some Others
• Doom Dooma Factory (Assam 2010)
– IUF against Hindustan Unilever Ltd. For forcing workers to abandon one uni...
A Winding Path

26
The Big Picture
• Looking at case studies, it is apparent that the development of systems
of human rights based protection...
The polycentric approach becoming
institutionalized
• Vedanta/Unilever model:
– Similar complaints have just been filed by...
Thank You!!!
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Polycentricity in South Asian Human Rights Law: On the Strategic and Simultaneous Use of Multiple Sources of Law to Advance Human Rights Against MNCs in South Asia

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Paper delivered at the 4th AsianSIL Biennial Conference, Dehli India
Nov. 14-16, 2013

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Polycentricity in South Asian Human Rights Law: On the Strategic and Simultaneous Use of Multiple Sources of Law to Advance Human Rights Against MNCs in South Asia

  1. 1. 4th AsianSIL Biennial Conference, Dehli India Nov. 24-16, 2013 Polycentricity in South Asian Human Rights Law: On the Strategic and Simultaneous Use of Multiple Sources of Law to Advance Human Rights Against MNCs in South Asia Larry Catá Backer W. Richard and Mary Eshelman Faculty Scholar and Professor of Law ; Professor of International Affairs, Pennsylvania State University lcb911@gmail.com
  2. 2. Context • Over the last generation there have been significant advances in the development of international substantive standards of human rights – defining the responsibility of multinational corporations (MNCs) for the human rights consequences of their activities, – on the development of systems for the implementation of these substantive standards, – and on changes in the domestic legal orders of states that also seek to regulate the human rights affecting behaviors of MNCs even as global businesses strive to create their own intra-corporate substantive systems based on their supply chain relationships. 2
  3. 3. Embedding? • This development – is in line with advances in law that have been framed around the rights of individuals under the constitutional law of the state. • This is the case in South Asia, though not in all East Asian states – This development is meant to lead to harmony within a single, integrated and vertically arranged system. • Much academic and political work centered on bringing these new developments into the framework of international public law developed from 1945 • Premise is that the system is sound and can absorb these developments . 3
  4. 4. Issue: Incoherence • Yet increasingly those rules and frameworks may not be enough: • Produce incoherence – Regulatory Incoherence • domestic , international and private regulatory systems • Overlap but do not mesh • Autonomy and communication – Remedial incoherence • Distinct regulatory systems provide parallel remedial frameworks • Systemic Incoherence – In place of a harmonized law based framework • Systemic anarchy • Heterogeneity of regulatory structures, methods and devices
  5. 5. Challenge • From incoherence to polycentricity? – Traditional analytical framework not helpful • focuses only on the state and the public international that serves as the creatures of states. • Focuses on law and judicial remedial structures • The rise of multiple governance systems poses a challenge for rights-remedies law based systems • Polycentricity poses normative challenge – That in the development of rights regimes in international and private frameworks: the state is increasingly irrelevant – The stage of development of state remedies may lag behind private and international governance systems 5
  6. 6. Inquiry • How is an individual (or an MNC) to protect or vindicate their rights in this emerging polycentric universe? – FOCUS on: possibility that the development of global norms touching on human rights 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 on the ground.
  7. 7. Questions – to what extent has polycentricity in governace changed the regulatory universe within which individuals can protect their rights and MNCs can expect challenges to their activities? – To what extent is the new ploycentric governance environment being used in addition to or as a strategic alternative to nationla litigation; and – Are these strategies helping to change the landscape of human rights in India to one grounded in but not limited to national law?
  8. 8. Roadmap: • Part I sets the context, considering the contours of emerging polycentric governance. • Part II considers the legal landscape in India in its national, international and private context. • Part III considers the emerging framework of polycentric litigation through two cases studies— Vedanta and Unilever.
  9. 9. Polycentricity I
  10. 10. From Stability to Globalization • Traditional state-based conceptual framework – State at the center of governance; supreme organ of vertically arrange sources of politics – Law as the supreme authoritative expression of legitimate governance – Post 1945 overlay structures of public international law and the law making of international organizations created to serve the community of states through the language of law • Globalization undermines settled politics-law hierarchy – Post 2000 no on on top of a single vertically arranged system • State is de-centered; law no longer singularly authoritative; – Non-State actors burdened directly by international obligations • Also willing to directly incorporate normative frameworks within their own operations
  11. 11. Enter Polycentric Systemicity – 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 – Polycentric Systems I • Definition: simultaneous application of law, public/private governance to an enterprise, individual or transaction • A form of de-centralization; now fitted within a DIS-Ordered system – No central singular authority – Multiple vertical governance hierarchies – arranged horizontally against each other
  12. 12. From One to Many • Three important forms for business and human rights in South Asia – Supplier Codes of Conduct and 3rd party certifier organizations • purely private – SWFs • States as market players – “Soft law” • International organizations as standard setters and sites for limited remediation – Each discussed in turn 12
  13. 13. From Public to Private • Private Governance SystemsThird Party standards creators/disclosure systems organizations • ISO; Equator Principles; – Supplier Codes of Conduct • MNC as a self regulating entity – Third Party Verification Organizations • Create, enforce and monitor standards • Fair Labor Organization is an example – Investor entities • Sovereign wealth funds • No particular order to system • No formal integration into law-state system 13
  14. 14. From Legal to Societal Norms • OECD Guiding Principles for Multinational Enterprises – Voluntary principles addressed by governments to MNCs, but OECD member states bound to provide a complaint (National Contact Point) process – Focus on key areas: disclosure, human rights, employment and industrial relations, environment, bribery, consumer interests, science and technology, competition and taxation – Provide a basis for creating regulatory and behavior coherence at the international level for transposition to domestic legal orders • U.N. Guiding Principles for Business and Human Rights – Three Pillar framework for elaborating system of human rights consequences of economic activity • State duty to protect • Corporate Responsibility to respect • Obligation to provide remedies • No independent enforcement mechanism
  15. 15. India Within the Web of Governance
  16. 16. India • In India, human rights are constructed within a law-based discourse. – 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. – These developments are 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. – Formally, it is tied only loosely to international public and private governance
  17. 17. Judicial Rights • 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. – Judicialization within networks of public governance – Good governance model construed from the Indian constitution • good governance model is affected by a variety of factors that tend to open the doors to alternative governance structures beyond the state. These include – distrust of the policing structures of the state, – the persistent issue of caste, and – the problem of gender rights. 17
  18. 18. Scope of Judicial Activism • • • • Judicial law making the core Legal Aid movement Legal aid camps Social Action groups encouraged – Training for social activists and paralegals – Access to funds • Public interest litigation – A means of providing access to justice for the poor – Reduce the transaction costs of litigation for socially disadvantaged groups 18
  19. 19. Limitations of the Judicial Model? • National law may be ineffectively where remedies and claims flow out of India within global supply chains – International law only to the extent transposed; limited connection through National Human Rights Commission • Limited scope of judicial “law” – a variant of the U.S. problem of common law in the interpretation of constitutional authority • Difficult to empower the poor – easier to manage them through interventions on their behalf • Internal policy coherence compromised – Contests between national parliament, states and courts and private bodies 19
  20. 20. Asian Values? • Compare China – Reject “rights” model in favor of administrative model • focused on obedience to law • Perfection of the administration of the state. • Ensure social harmony; “scientific development” as ideological policy – Social construction: the framework is based on the obligation of the state to protect and provide for its citizens rather than on the rights of individuals against the state • Embodies 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
  21. 21. The Case Studies: When Domestic Law Fails, Go International!
  22. 22. Vedanta http://www.guardian.co.uk/business/2009/aug/05/vedant aresources-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.”
  23. 23. Vedanta II • 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
  24. 24. Unilever-India and Pakistan • International Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association (IUF) complained about factory closure – Hindustan Lever Ltd (Sewri factory) sale and closure – Proceeded despite parallel Indian judicial proceedings – Settlement reached • IUF complained about similar practices in two Pakistani factories – Unilever Pakistan Ltd. (Khanewal factory) – Unilever Pakistan (Rahim Yar Khan factory) • Employment system based on firing permanent and hiring temporary workers challenged – Unilever defense—complying with local law; hired independent service providers – Parallel proceedings in Pakistani courts – Settlement reached
  25. 25. Some Others • Doom Dooma Factory (Assam 2010) – IUF against Hindustan Unilever Ltd. For forcing workers to abandon one union in favor of another – Case suspended while Indian High Court considered; – Taken up again after High Court declared no jurisdiction; – Settlement reached • Ms Z against X (2012) – Complaint rejected; OECD not proper forum for bringing personal injury claims even if claimant sought to use the OECD process to illustrate the difficult of bringing any claim under national law. • GCM Resources (Bangladesh) – Complaint raised by two civil society actors, International Accountability Project (California) and World Development Movement UK() against GCM resources over proposed coal mine in Dinajpur region – NCP has taken up complaint based on violations of Universal Declaraiton of Human Rights
  26. 26. A Winding Path 26
  27. 27. The Big Picture • Looking at case studies, it is apparent that the development of systems of human rights based protections may be following a new and different route. • Within India, the development of human 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. – But litigants are invoking parallel foreign and soft law systems to protect their rights – Suggest the limits of a judge based individual human rights based system – And the ways that this failure may reduce the power of the state – And the ways in which Indian human rights disputes have been internationalized
  28. 28. The polycentric approach becoming institutionalized • Vedanta/Unilever 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. – Used as well to reach settlement against Nestlé and Japanese labor unions. – http://www.japan-press.co.jp/modules/news/index.php?id=6507 • The future – FLA-enterprise partnerships extending beyond Apple – Supply chain governance assuming more character of law system through contract 28
  29. 29. Thank You!!!

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