The early fracture of the unity of human rights in the Universal Declaration of Human Rights into a focus on social economic and cultural rights on the one hand, and on political and civil rights on the other has deep implications for the focus and practice of human rights in context, especially within home states in multinational enterprise supply chain systems. These differences are more pronounced where the political context of home states may be different from accepted forms common in developed states. This is particularly the case with two of the most important emerging states--India and China. India provides an example of the approach to human rights protection in which economic and social rights are vindicated through the application of political and civil rights within a state in which individual rights are understood as constraints against state power and courts serve a critical mediating role. In China, on the other hand, civil and political rights are vindicated through the state and its role in ensuring the provision of social, economic and cultural rights through the administrative apparatus of the state, within a state in which individual welfare is understood as a core obligation fo the state to be vindicated through governmental action. These differences have important ramification for the way in which international human rights frameworks, like the UN Guiding Principles, may be successfully transposed in context. These are explored in the paper through examples from both states.

1. Business and Human Rights—Networks of Transnational
Governance, International Workshop, Hebrew University,
Jerusalem, Israel; February 19-20 2014
Privatisation of Ssocial, Cultural and Economic Rights in
Southeast Asia—A tale of Two Approaches to Business and
Human Rights
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. 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

3. 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
)
– Proliferation of silo rights regimes (gender, trafficking, etc.)
• Consequences
– Hierarchy of rights?
– Universalism vs. Localism: Not all states embrace either
– North – South divide

4. From Centric to Polycentric
Order
• Traditional analytical framework looks only to the state
– FOCUS: regulatory incoherence and systemic coordination
• Globalization complicates human rights fracture
– Adds element of multiple systems
– domestic , international and private regulatory systems
• Overlap but do not mesh
• Autonomy and communication
– polycentricity in human rights regimes challenges the order of
regulation and its self referencing logic
• Systemic Incoherence
– Distinct regulatory systems provide parallel remedial frameworks
4

5. Fracture Within Fracture: Asian Values?
• The role of social and economic rights in Asia is marked by
– an embrace of the general proposition of international human
rights,
– 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.
5

6. China and India
• China: Rights as Obligations of the State
– 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
• Resistance to attempt to universalize Western-style democratic practices;
• Soft law is important as administrative device
• India: Rights as Constraints against the State
– 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
• Soft law important as remedial tool in courts

7. Roadmap:
• Part II sets the context, considering the contours of
emerging polycentric governance, and focusing on
the way in which social and economic rights are
understood within India and China.
• Part III tests the theoretical differences in
approaches to business and human rights against
two cases, one from India and one from China.
• Part IV concludes with some general observations
about globalization, privatization and the
advancement of human rights regimes.

8. Polycentricity
Anarchy versus order in transnational space
I

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. Polycentric Systems
• Definition—simultaneous application of law and
public/private governance to an enterprise or transaction
• A form of decentralization
• But now fitted within a DIS-orderly system
– Not just order among a community of states
– But now comprising intermeshed systems among regulatory communities
• Three important forms for business and human rights in
Asia
– Supplier Codes of Conduct and 3rd party certifier organizations
– SWFs
– “Soft law”

11. Polycentricity Tamed?
• 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

12. The Untamed: From Public to
Private
• Private Governance Systems
– Third 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
12

13. India and China Within the
Web of Governance

14. 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

15. 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.
15

16. 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
16

17. Chinese Constitutional Values
• Separation of powers—Administrative and political
spheres
– Administrative sphere: government,
• charged with implementation of political policy.
– Political sphere: Chinese Communist Party
• Charged with leading the state and people along Marxist Leninist lines
– Human rights is understood as an obligation of the state for the
benefit of the individual
• As a consequence individuals are expected to rely more on the state
rather than to seek to constrain the state.
– Chinese values
• Focus is on whether officials complied with their obligations
• Not with whether an individual can act against the state to preserve a right.

18. The Chinese Path
• Compare China
– framing “human rights” within the concept of socio-economic rights
(SER).
– Social construction: ensure social harmony and sustainable
development—the framework is administrative and collective
rather than individual and rights oriented
– 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

19. The Case Studies

20. 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.‖

21. Vedanta Cont.
• 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

22. 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

23. 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

24. 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

25. 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

26. 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.

27. 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
27

28. A Winding Path
28

29. 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.
• Successful implementation of human rights systems
for corporations depends on adapting to these
distinct approaches.

30. •
Country Specific Human
Rights and divergences being
Two case studies suggest similarities
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 focus
civil-political rights VERSUS social and economic rights
– 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.

31. China
•
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.

32. India
• 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.

33. Thank You!!!