Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar and Professor of Law ; Professor of International Affairs, Pennsylvania State University

lcb911@gmail.com

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

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

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.

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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

.

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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

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

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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.

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?

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.

Polycentricity

I

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

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

• 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

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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

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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

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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

India Within the Web of Governance

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

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.

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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

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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

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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

The Case Studies:When Domestic Law Fails, Go

International!

Vedanta

http://www.guardian.co.uk/business/2009/aug/05/vedantaresources-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.”

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

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

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

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A Winding Path

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

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

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Thank You!!!