Presentation of paper: Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India

1. 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
Realizing Socio-Economic Rights Under Emerging Global
Regulatory Frameworks: The Potential Impact of
Privatisation and the Role of Companies in China and India
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. Issue
• Privatization and its effects on the implementation of
regimes of protections of economic and social rights
– 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.
– Focus on China and India

3. Inquiry
• FOCUS on the possibility that the development of global
norms touching on economic, social and cultural rights
(along with civil and political 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:
• Questions:
– 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?
– what accounts for the differences in the expression and vindication
of economic and social rights between China and India?

4. Roadmap:
• Part II sets the context, focusing on the way in
which social and economic rights are understood
within India and China.
• Part III is the heart of the chapter, suggesting the
role of globalization and privatization of human
rights obligations through two case studies, one
form India and the other from China.
• Part IV concludes with some general observations
about globalization, privatization and the
advancement of human rights regimes.

5. Regimes of Human Rights
• Traditionally a state centered enterprise
• Assumed current form with the establishment of
the U.N. system
• Grounded in language of law and rights
I

6. From One Many
• Universal Declaration of Human Rights
– Aspirational; principles
• Fracture
– Division of catalogue of rights
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR )
• Consequences
– Hierarchy of rights?
– Universalism vs. Localism: Not all states embrace either
– North – South divide

7. Asian Values?
• The role of social and economic rights in Asia is marked by
– an embrace of the general proposition of international human
rights,
– an inclination to carve out an Asian values perspective on these
universal rights, and
– a sense that such an Asian values framework is itself contestable
• because of the wide differences in values among Asian states.
• The critical distinction within the Asian values camp is the
focus on development versus democracy.
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8. China and India
• Reflect different paths to human rights
• China
– framing “human rights” within the concept of socio-economic rights (SER).
– Social construction: ensure social harmony and sustainable development
– Social construction under the concept of “Scientific Development”
• embodies core idea 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
• India
– Focus on articulation and enforcement through the state apparatus
– Public litigation; the role of Supreme Court and constitution
– Social and economic rights a joint public law project—national and international
• Civil/political rights the prism through which SER embodied

9. Enter Globalization
• Globalization
– has undermined settled (if contentious) framework of development
centered on the state;
– Non-State actors burdened directly by international obligations
• Also willing to directly incorporate normative frameworks within their own
operations
– 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

10. Privatization:
The Case Studies

11. India—Vedanta
--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
http://www.guardian.co.uk/business/2009/aug/05/vedant
aresources-india 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.”

12. Vedanta
• 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

13. China—Foxconn/Apple
• incorporation of social and economic rights within global supply chains
generally subsumed within the corporate social responsibility aspects of
corporate governance
• Actors
– Foxconn (Han Hai Precision Industry Company, Ltd )
– Apple
– Fair Labor Association

14. Foxconn/Apple
• Factories/Operations
• Systems
• While states memorialize their norms through law, contract serves a
similar purpose for regulating the behavior among non-state parties
– Foxconn: Supply Chain Management System
– Apple: Code of Conduct
• Stressing the Systems: Suicides
• Aftermath
– Enter FLA

15. Privatization and SER Systems
• Two case studies suggest similarities and divergences being
taken by China and India with respect to the
implementation of social and economic rights in their
respective states.
– Those similarities and differences mark the parallel development,
within both public and private spheres, of distinct approaches to
human rights.
• Carry over the bifurcation of human rights discourse
between civil-political rights on the one hand and social and
economic rights on the other.
– That bifurcation, when operationalized by private actors, as in the
case studies, produces substantially different approaches to the way
in which social and economic rights are understood and
implemented.

16. A Winding Path
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17. India
• In India, social and economic rights are constructed within a law-based
discourse. Privatization focuses on the interaction of systems of
governance operating simultaneously at the national, local and
international levels. It involves the management of the extent to which
private actors must conform to the obligations of law generated at the
local, international and national levels.
– 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.
– Ultimately, the extent of private rights and obligations remain 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.
• 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.
– Privatization within networks of public governance

18. China
• Rights privatization in China, on the other hand, is in the “South” camp.
Privatization focuses on the interaction of systems of governance
operating at the local and international levels.
– But unlike in India, those systems are autonomous and private;
– grounded in the control and accountability mechanics of the market, not of the
state. Within this system, the state retains an important but background space.
• In China the government apparatus remained very much in the
background as large multinational enterprises and supra national
monitoring systems engaged in the formulation and remediation of
adverse human rights consequences of social and economic rights
developed and adopted through these private systems.
• Private entities remain accountable to the state for violations of law,
– but principally accountable to each other and their transnational stakeholders for
the violation of rights developed and adopted through private systems existing as a
supplement to those rights accorded to individuals by the state.

19. General Observations
• Interesting Aspects
– Foxconn case study: the willingness of all actors to hold corporations
to their governance obligations.
– Vedanta case study: SER more closely tied to civil and political rights;
the powerful effect of soft law quasi judicial proceedings on the
political responses of the Indian state.

20. The Big Picture
• Looking at Vedanta and Foxconn/Apple together, it is apparent that the
development of systems of social and economic rights based governance
systems within the private sphere can follow substantially different routes.
• Within China, the development is bounded up in the development of
multinational systems of norms that can be used by groups of multinational
corporations. The focus is on economic conditions and rule systems. Language
is social and markets based.
– The Chinese state and private spheres look to the ICESCR as a framework within which national
notions of social harmony within institutional and governance parameters may be
operationalized. Custom and culture rather than rights and remedies, appear privileged.
• Within India, the development of social and economic based 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—founded on the
privileging of the premises of the ICCPR.

21. The two approaches are becoming
institutionalized
• Vedanta 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 .
• Foxconn
– FLA-enterprise partnerships extending beyond Apple
– Supply chain governance assuming more character of law system
through contract
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22. Thank You!!!