Sunday, February 15, 2015

Do Corporations Have Human Rights Obligations?

An essay for the course: Corporate Responsibility in Transnational and International Law
By Priti Patnaik, June 2012

Michel Foucault had declared that we are living in an era of the end of politics. Some would argue that it is an era of the end of governance and of governmentality – as that site of social and public consciousness that aspires to serve public interest (Baxi 1995:3).

The notion that only states can be held accountable for violations of human rights, is being challenged with the rising economic and social power of non-state actors such as transnational corporations as a result of an integrated global economy that they helped build (Muchlinski 2000:1). Corporations have assumed roles of the state in some areas. Their activities do have an impact on human rights and hence they must be made responsible for protecting such rights. There are gaps in legal regulation to govern this space, but we must go beyond legal possibilities to address how corporations can be held accountable for such obligations.

In this paper, we first look at whether corporations are individuals, if they are subjects under international law or have a personality. Corporations have rights. Therefore, they must also have responsibilities and obligations. We look at human rights obligations of corporations arising from their operations. We consider if existing systems of transposing human rights obligations will work.

Finally, we review emerging frameworks that could make corporations liable for human rights violations.

CORPORATIONS: PARTICIPANTS IN THE INTERNATIONAL LEGAL SYSTEM

The ‘corporate form’ is barely recognized under international law. There is no transnational regime of human rights law governing transnational activities of corporation. Therefore, corporations have been operating in a “legal vacuum” because international law imposes no direct obligation on corporations. (Kinley & Tadaki 2004: 935). Only states have a vicarious responsibility to protect
human rights that could be threatened as a result of corporate negligence. It has been argued that for transnational corporations to have human rights obligations, they must be subjects under international law.

Under international law, individuals are not permitted to be bearers of duties and responsibilities and hence they are objects. According to the positivist approach, only states were subjects of international law. But with the evolution of international organizations, this began to change. 

International law only operates horizontally between entities recognized as having international legal personality. States and international organizations are entities that have been described having “international personality”. Is there a correlation between international legal personality and responsibility?

The concept of a legal personality is tied to the capacities that such a personality can have. Besides, those capacities are determined by international law. Traditionally, states were seen as entities making international law. Therefore, we will need a new set of rules to determine if corporations can have legal personalities, can they be subjects of international law and hence be regulated as entities
having capacities under international law. In other words, if a corporation were to become a subject of international law, they will have responsibilities under international law by virtue of being a personality. But this could be problematic, since an international personality could also have immunity. So corporations can claim immunity even within their national court systems.

Rosalyn Higgins, former president of the International Court of Justice, has advocated going beyond distinctions between subjects and objects and believes that transnational corporations are “participants”, in the international legal system with the capacity to bear rights and duties under international law. Although it may be utopian, some commentators are of the view that international law must recognize multinationals as subjects, as a way to impose international regulations on such “subjects”.

CORPORATIONS HAVE RIGHTS

Many transnational corporations have outsized influence and power compared to states, it has therefore been argued that “with power should come responsibility” (Weissbrodt & Kruger). These corporations must be responsible for the impact their rights can have. In order to make corporations responsible for human rights obligations, we must consider that corporations exercise power and
hence this power must be regulated by bestowing ‘responsibility’.
Activities of corporations have transcended private spheres and have taken on functions that were hitherto classified as state functions. So this shift in function has to be matched with a shift in responsibility. This shift was first seen during the colonial era, where companies such as the British East India Company were not only at the forefront of trading activities, but also administered territories they operated in. Post colonization in the second phase, governments of the former colonies “were lobbying for a new North-South dynamic” (Ratner 2001: 455), and saw foreign corporations as agents of the North. There were attempts at ‘equalization’ that saw expropriations of foreign investment. Contractual negotiations sought to put the host country and the foreign company at the same level. During the third phase, called globalization, developing countries sought to attract foreign direct investment. As result, there was unprecedented investment, to the point, where these companies have been embedded in host economies. The period also saw a proliferation of bilateral investment treaties, accompanied by lower domestic regulation to accommodate foreign investors.

‘A race to the bottom’ has ensured that domestic governments look the other way, giving latitude to foreign investors to violate those standards that are considered inviolable in their home countries. Like capital and labor, law becomes a commodity or a factor of production, on which corporations base their business decisions. This has also been referred to as the ‘Delaware effect’. (Backer  2008:505) Corporations can go forum shopping to jurisdictions that have mild regulations. Further, internationalisation of companies has resulted in incorporation of such conglomerates across separate subsidiaries. Every corporate actor stands as an autonomous individual and one legal person may own another. (Backer 2008: 504). This makes it possible for corporation to build, large, complex networks. This allows corporations to “disperse globally, but limit liability”. Links, thus, established between entities, has made them increasingly more independent of governmental regulation both in home and host states.

Many corporations have become more powerful than states and have greater resources to dispense with, to meet their objectives. In turn, governments have depended on corporations to perpetuate human rights abuses.

The question therefore, is not whether corporation have duties under international law, but what those obligations are. (Ratner 2001 :476) International law must and should provide for such obligations and the scope for such obligations must be derived in the context of corporate activity. (Ratner 2001: 449). Should the international legal process provide human rights obligations directly
on corporations?  Traditionally, corporations could only obey the law, but not have duties towards, say, protecting human rights, since that was the prerogative of the state. But changing nature of their activities, makes them duty-bound to respect and protect human rights.

HOW TO MAKE CORPORATIONS RESPONSIBLE FOR HUMAN RIGHTS OBLIGATIONS

Human rights conventions are not tailored towards corporate conduct. The UN Universal Declaration of Human Rights does not impose obligations on anyone. These are non-binding documents and are not part of customary international law. As a result do not impose legal duties on corporations. The Nuremberg Trials and the UN General Assembly, both affirmed that the individual and not only the state, is covered under the international law duties with respect to waging of wars of aggression, crimes against humanity and war crimes. But the Nuremberg Trials did not impose responsibility on the Nazi party, but on the people in the party, although it declared the party as a criminal organization. We do know that international criminal responsibility does not apply to corporations,
but to individuals.

Traditionally, treaties in international criminal law including the Genocide Convention or the Torture Convention , focus on individuals and not on the corporate entities. There is no system that identifies responsibility for non-state actors or that formulates questions of corporate liability. 

States have three kinds of responsibilities – the obligation to respect, to protect and to fulfil. While governments have the responsibility to protect rights of all, they further have ‘derivative obligations’to protect such rights against everyone. The idea is to examine to what extent is the state responsible to protect human rights against the abuses of, say, a corporation. While transposing
human rights obligations to non-state actors, especially to corporations, is far from easy. What can be done instead, is to make the state responsible to protect human rights obligations in the light of corporate conduct.

Under laws of state responsibility, primary rules are substantive obligations of states in the various areas of international law, secondary rules elaborate what it means for a state to be legally accountable for violations of these duties (Ratner 2001: 490). The laws of state responsibility also spell out under what circumstances the act of a private individual may be attributed to the state. Similarly, there are primary and secondary rules governing individuals.

Since corporations are significant actors, they must assume obligations placed on states or individuals, based on these rules of responsibility (Ratner 2001: 496). But merely bringing corporations under this ambit of duties may not be the solution. For example, extending duties of states to corporations may not be desirable, since their functions may differ. Or, even if corporations are treated as a natural person, businesses would then be responsible for the same international crimes as individuals (Ratner 2001: 494). There are barriers to transposing primary rules to corporations. Similarly, since secondary rules are based on actions of states, transposing these rules to corporations may not be suitable. New rules of attribution may need to be made keeping corporations in mind.

Besides, corporations are designed to maximize profit, not to assume broad-based welfare functions of states. (Kinley & Tadaki 2004: 961). To extend duties and human rights obligations of states to corporations, while ignoring their functions, may not be appropriate. But corporations must carry out welfare functions such as: the right to education by making sure that child labor is abolished, for example. The right to a clean environment can be protected, if corporations behave within the requirements of law.

In his article ‘Corporation and Human Rights’, Steven R Ratner theorizes on corporate responsibility. He says the relationship of the corporation with the state is an important indicator: tighter the nexus between the state and the corporation, more exacting are the obligations on the latter. Even as this makes the state liable for the actions of the corporation, it also makes the corporation itself liable.
Also, corporations may be acting on behalf of the government.

Just as a government has obligations to its population within its territory, corporation owes a duty of care to people within their ‘sphere of influence’ or those that are at proximity to its operations. But how far one can extend the concept of ‘jurisdiction’ to corporations remains to be seen. To what extent can corporations be legitimately held responsible for human rights infringements of their
subsidiaries, for example? (Kinley & Tadaki 2004: 961).

Human rights law is based on a balancing of interests between the state and the rights of the individual. Similarly, a corporation’s responsibility must balance rights of the individual and its own business interests (Ratner 2001: 513) How can such a balance be achieved? For example, can a corporation infringe on a right such as the right to a criminal trial, by withholding sensitive
information?

Is it possible to pin responsibility on individuals within the corporate structure? He suggests that suggests that corporate responsibility must link to corporate control (Ratner 2001: 518). In the web of modern economic organization of a corporation, it is important to spell out control within corporate structures.

For example, suing an individual rather than a corporation would mean, that the individual may not be able to afford damages arising from massive human rights violations. Holding the corporation responsible will ensure that assets could be seized to pay for such damages. Besides, shareholders will have an incentive to ensure that the corporation does not violate its human rights obligations.

THE NEED FOR A NEW FRAMEWORK:

There is no legal framework that addresses actions of corporations in host states to the human rights of citizens in those countries. International law governs activities between home state and host state. International investment /economic law govern the relationship between host states and corporations, in addition to this, there are bilateral investment treaties that safeguard such investments. Human rights laws within states, govern the activities of the state and its impact on its citizens. To be sure, many developing countries do not have exacting standards of Western human rights laws.

What is therefore missing is a law that regulates activities of foreign corporations and its impact on citizens in host states. Such regulations may not be fully served by domestic frameworks, due to the inherent limitations in them. There are states that have no provision in their domestic law to hold corporations liable, therefore, corporations must subject to responsibilities under international law. 

Some of the questions that a future framework must consider, include whether the international regulation of corporates is the only way forward or if domestic courts must play a greater role? Should the state play a greater role in protecting human rights against third party abuses of private actors and whether the responsibility must lie with the home state or the host state?

Human rights are seen as too fragile to be left to domestic laws and therefore it is widely acknowledged that an external law is needed to be imposed to safeguard these rights. It has been argued that domestic law cannot effectively “constrain” state action. At the same time, states would never accept international regulation of private entities (Ratner 2001: 469). Having international norms would mean that governments could lose regulatory powers. This coupled with no enforcement -voluntary code of conducts of corporations will become problematic.
Conventions such as the OECD convention do not impose obligations on corporations directly. They do so, via the states. By not imposing direct responsibility on corporations through international law, conventions like the OECD, expose the process of fixing responsibilities to the vicissitudes of national laws.

CONCLUSION:
There may not be any one approach to get corporations to respect human rights obligations. John Gerard Ruggie, Secretary-General's Special Rapporteur for Business and Human Rights, who formulated, the Guiding Principles on Business and Human Rights, believes there is a reconstitution of the global public domain, where the very system of states, is becoming embedded in a non-state
based public domain. (Ruggie 2004: 32).

Ruggie believes that there is a new transnational world of transaction flows that operate in near real-time (Ruggie 2004: 6), and that these corporations have left behind “the old inter-national world of arms-length economic transactions and traditional international legal mechanisms”. This opens up challenges and constraints for governance.

According to the guiding principles on the corporate responsibility to protect human rights, businesses are expected to respect human rights wherever they operate, “independent of States’ abilities and/or willingness to fulfil their own human rights obligations.” It seeks to ensure that business mitigate and where appropriate remedy such violations. Further, the principles specify that the responsibility of businesses to respect human rights is distinct from questions of legal liability and enforcement, which are governed by national law provisions in relevant jurisdictions. It therefore calls for businesses to have additional standards depending on the context.

Ruggie has noted an increased potential for companies to be held liable for international crimes –with responsibility imposed under domestic law, but reflecting international standards of individual responsibility, as expressed in international criminal tribunals (Ruggie 2007: 830) In the long term, given the diversity of challenges for governance and the reality of globalization, the ‘Ruggie approach’ of doing away with distinctions of corporations as subjects or objects of international law may be work better, for one hopes that it will have a normative impact on the conduct of corporations.

He says, that although it may be promising to expand the “international regime horizontally” by codifying duties of states to protect human rights against corporate violations, he believes, international instruments can also play a significant role. (Ruggie 2007:29)
He urges that working on an individual liability model is not the only answer for larger “systemic imbalances in the global system of governance”. He calls for collective action. He calls for structural changes by reforming institutions. He is of the view that soft law hybrid arrangement, like the Kimberley Process that involves states, companies and consumers, is an innovative concept.

However, letting private actors craft regulation will not be without complication. There is a counter point to splitting regulation as private and public. Feminist legal scholars have long argued that it is fraught with risks for it may affect vulnerable groups. Those at the receiving end of a non-binding regulation in the ‘private’ sphere, could be vulnerable without the recourse to contest such regulations. Feminists believe that concepts of public and private are highly political. They interact as ideological channels for the allocation of societal resources, including the resources of power and authority. (Fineman 2005: 21)

Finally, Ruggie recognizes and acknowledges that some of the solutions could lie beyond the legal sphere. Systems of legal compliance and broader dynamics of social change could forge such a change. Drawing on Amartya Sen, he believes that any successful regime will need to “motivate, activate, and benefit from all of the moral, social, and economic rationales” that can affect the behavior of corporations. Just as human rights groups urge a shift from voluntarism, Ruggie appeals to this community to look “beyond compliance”. Sen has said that the concept of human rights has been prematurely locked in a narrow box of an entirely legal approach. (Sen 2006: 2927). Sen underscores the importance of public reasoning in the “recognition of human rights, and for their
realization and advancement.”

We live, after all, in an age of rights. (Baxi 1995: 6). There has been a continuous confrontation between an “emergent culture of rights and the entrenched culture of power”. A critical source of human rights, is the consciousness of the peoples of the world, who have waged persistent battles for self-determination against racial discrimination, gender-based aggression, denial of basic rights and environmental degradation (Baxi 1995:6) In the fight to make corporations accountable, it may be no different.

Wednesday, February 15, 2012

Manipur: The Angry State

Here is a story on the Indian state of Manipur which is gearing up for elections. Award-winning journalist Arijit Sen of CNN IBN who has reported on the story describes Manipur as a state where the idea of India as a democracy takes a big hit. Activists, journalists, politicians, parents of dead men come alive in this story. The frustration of the people in the state is enough to shake anybody, except the establishment in Delhi. Manipur, is one of the forgotten seven sisters - as the NorthEast of India is often referred.

Friday, February 3, 2012

Concepts to understand 'water crises'

A synthesis paper: How to classify the crises in water
Priti Patnaik, January 2012

Water crises across the world are specific and local in nature. But what is common to most of them is an acute lack of development in the region they manifest in. In some sense, water crises are indicators of ‘development stresses’.

Right to water is integral to development for it determines health, livelihood and therefore survival. Affecting livelihood are concomitant factors such as climate change, population pressures and geopolitics.

The crises in water are emblematic of mismanagement, denied opportunities and exclusion. Political opportunism and short-sighted economic interests rooted in a certain social setting shape the crises of water availability and accessibility.
In the diagnosis of a water crisis, it is important to identify the scale the problem. Whether the watershed or a river basin should be the ‘natural’ unit of analysis has been questioned. (Julie Trottier, Water crises: political construction or physical reality? June 2008)

The crux of identifying the problem as one of management and not of physical scarcity is to estimate the actual physical quantity of water. How much water is available for usage? What are the official and unofficial arrangements for water use and how does this information help in designing policies? What are the distributional bottlenecks? Has pollution for example, rendered the physically available water unfit for use? Who controls the water? Does the state have limited intervention? If yes, to what extent is water managed by private parties?

While water can be scarce in countries like Egypt, it is, however, usually a problem of water mismanagement and a lack of political leadership to effectively diffuse the problem of ‘artificial scarcity’. There are political motives inherent in framing the problem as one of water scarcity and not one of management.

Making the case for the Sardar Sarovar Porject on River Narmada, the state of Gujarat in India, made an effective argument projecting ‘increased’ water access and availability for the parched regions of Kutch. But in reality, very little water has actually reached the region. Water has instead been diverted to the more prosperous areas. So future ‘water availability’ proved to be a selling point for the government amongst water-stressed voters. In this case, data as an instrument of politics was wielded successfully. While it is difficult to accurately determine ‘variability’ of water cycles, without solid and authentic information, the state government was directly able to use misinformation to achieve its ends to push through the proposal of the Sardar Sarovar Dam Project. (Dilip Dsouza, Narmada Dammed, 2002)

This brings us to the question of whether water can be classified as a common good or as a commodity having an economic value. Perceived as a common good, water rights are crucial in agricultural areas. Loss or erosion of entitlements can undermine livelihoods and result in exclusion from agricultural opportunities. After all, the concept of water equity is integral to the Millennium Development Goals (MDGs). However, if water is a common good and the right to water a fundamental right for everybody, it could result in the tragedy of commons – a situation where rational consumers will maximize their preferences to achieve optimization, while effectively depleting and deteriorating the common good. A case in point, is the shrinking of the Aral Sea by more than 60% during the Soviet era, where mindless water use, diverted for cotton production in Central Asia, resulted in one of the gravest environmental disasters in history.

In most cases, water is both, a common good bestowed by nature, and a precious commodity with an embedded economic value. Depending on the situation, there is a degree of variation between these two classifications. In Brazil, for example, water is an economic good to sustain large scale production of ethanol from corn.
The notion that water is simply not water, but an intermediate good necessary for producing an economically significant end-product leads us to ‘virtual water’. The ‘value’ of virtual water becomes even more important, if for example, commodity price fluctuations are considered. If food prices increase, the pressure to increase productivity goes up, as a result, water used for irrigation will increase. Going back to ethanol production in Brazil, it has been recognized that production of biofuels is a major driver of food prices (A Note on Rising Food Prices, Donald Mitchell, Policy Research Working Paper 4682, World Bank, July 2008)

If water is a commodity having an economic value, how then should water be priced? What are the instruments that can be used to improve the efficient use of water? Progressive taxation and subsidies are examples of such instruments. In reality, the poor consumers of water effectively end up paying more than the richer households especially in countries with great inequalities. Often, the poorest consumers are just outside the legal water distribution system, making ‘access’ illegal and therefore more expensive. (Another example, where dominant power structures perpetuate social inequities as discussed by Trottier, June 2008)

Even as progressive taxation on water could be an answer, subsidies for water can have unintended policy consequences. To be sure, market instruments can regulate only certain aspects not all aspects. I recall, one instance where a politician in Southern India offered farmers free power for irrigation. He won an election on that promise, but made the state exchequer bankrupt with bloated power bills not to mention encouraging inefficient power use especially amongst rich farmers.

Therefore, the important decision and distinction to be made is whether there is an absolute need for water or is there a relative one? Is there anything called ‘optimum’ water usage?

The classic case is of Central Asia, with conflicting seasonal requirements for water, where upstream countries need hydropower during the winter even as downstream ones make demands on the same water resources for cotton irrigation in the summer. Who determines that there is a greater absolute need for water to generate hydroelectricity to keep the poor Tajiks warm in winters, than there is a smaller relative need for Uzbeks to practice water intensive cultivation for cotton exports. To be sure, both Kyrgyztan and Tajikistan have dismal human development indicators, while Uzbekistan is relatively prosperous. So it would do well, to change its cotton exports-led growth strategy, a Russian colonial remnant in any case, in favour of a more sustainable agriculture, that takes into account upstream requirements.
Water has become a tool for negotiation, an instrument in a barter system. In Central Asia, a metric between water from upstream countries in exchange for power from downstream ones was worked out. As my colleagues who made a presentation on the downstream countries in Ferghana Valley mentioned, “The exchange was defined in terms of kWh-to-kWh exchange reflected through their corresponding values (accounting for energy prices)” However, this mechanism fell through when prices of hydroelectricity and fossil fuels diverged. Clearly, with well-endowed fossil fuel resources, Uzbekistan can be the price setter. So even as hydropower is constant and has been priced at 2-3 cents per kWh, the downstream countries have raised coal prices to about USD 40/ton for coal and more than USD 200/m for gas. “Diverging prices made it impossible for upstream countries like Kyrgyzstan to use the income from hydropower exports to buy sufficient level of energy from downstream countries.”

Is it possible to negotiate long term contracts on water allocation when energy prices or even food prices fluctuate in the short term? The price of water, becomes a function of prices of commodities. Further, subsidies to encourage fossil fuel use, or even the subsidies for renewable energy such as hydropower could also impact the price of water.

Complicating these dynamics of water management is climate change. Scientists have their own ideologies while framing a problem and collect information accordingly. Politics is embedded in science without being conscious of it. For instance, should or should not policy-makers seriously take cognizance of possible repercussions of climate change three decades hence, while allocating water resources in an international river basin today? Globally, more than a billion people live in river basin areas where water use exceeds sustainable levels. There are indications that global warming is accelerating the melting of glaciers. Consequently, water availability is expected to decrease in the long term due to melting of the glaciers that feed main water courses. The long-term impact of the decreasing glaciers will be a permanently reduced runoff. This will be aggravated by a rise in water consumption due to population growth and intensive development. It is a challenge for institutions to formulate treaties based on these uncertainties.

Institutions whether local, regional, national or supra-national play a crucial role in defining access to water for the end-user. The Integrated Water Resources Management (IWRM) approach, delegitimizes informal institutions that have for centuries managed water at a local level. By empowering states, this approach gives unprecedented power to governments to manage water resources. It is especially attractive for governments that did not do so earlier, as in the case of Ferghana Valley, after the Soviet breakup. (After all, every border is a historical and political construction – Trottier, June 2008) In a transboundary water governance situation, these institutions become a platform where regional power equations play out. In Central Asia for example, regional water authorities are allegedly manned by officials that are more biased towards economically stronger downstream countries like Uzbekistan which have greater clout compared to poorer upstream countries of Kyrgyzstan and Tajikistan. It is natural that an international body overseeing the allocation of water within countries will reflect the power asymmetries within in the region.

Non-state actors like civil society groups can also be instrumental in influencing the dynamics of a water problem. The Narmada Bachao Andolan (NBA), a people’s initiative in the Narmada Valley, is one such example. Although the movement gained critical mass to protest against ill-thought out rehabilitation of displaced persons in the region as a result of the construction of dams, it was not widely successful in upsetting power relations vis-à-vis the state. In fact in this case, even the Supreme Court, the highest judicial authority in the country, was at loggerheads with the group. The Court was labelled as being anti-poor when it slapped contempt of court notices against prominent members of the NBA who were castigated for being ‘anti-development’.

This brings us to the conflicting definition of development as seen by the people compared to the one imposed by the state. ‘Dams as temples of modern India’- a vision of India’s first Prime Minister Jawahar Lal Nehru has been used as an unquestionable dictum for more than sixty years after independence. Large hydro-agricultural programs have been criticised for poor economic returns and worse, for their negative environmental impacts.

So what will work? It is clear that a multi-dimensional approach is important while assessing and formulating the extent of water crisis in a region. A way to untangle an intractable water problem, could be to explore a solution outside the realm of water markets, for example, by addressing land reforms, or creating a power hub. Water use is dictated by agriculture. Worldwide agriculture accounts for 70% of water withdrawals. There is a need to address land reforms to improve entitlement, efficiency in resource management and better utilisation of water resources. Also, a regional power hub, in Central Asia, for example, can be critical in reducing the dependence of upstream countries on fossil-fuelled power from downstream ones.
In the case study that examined the exclusion of smallholders from irrigation projects in Southern Niger, it was suggested that low cost investment strategy could allow access to irrigation by small farmers as against large projects. In this case, the larger goal of poverty alleviation could be achieved by providing credit facilities, thus empowering smaller farmers to access irrigation and hence livelihood. Similarly in Central Asia, it can be said that that there is ‘value’ in more sustainable agriculture which means moving away from cotton cultivation and reduction in the use of fossil fuels by downstream countries. Who should win the game between subsistence farming versus commercial farming? But, to be sure normative approaches to solving water crises do not work.

A big part of any ‘solution’ is the law of the land. Sometimes, existing legal frameworks in a region may be insufficient to rectify water allocation or efficiency. What kind of laws must be put in place? Are ‘modern’ water laws inconsistent with local cultures (Julie Trottier)?

In the Nile basin region, the way agreements will be formulated in future will be a function of the evolution of the regimes in the countries along the Nile. Geopolitics influences political realities in contentious regions. The role of China and India in the Nile region, Russia and China in Central Asia, are examples on how larger regional powers could affect the outcome of water allocation in these areas.
Notwithstanding the popular conception of the ‘global water crises’, there is a need for local approaches taking into consideration political realities. It is important to first accurately problematize the situation, and take into account local politics. A large part of the limited success of multilateral organizations operating in zones of water crises can be attributed to their apolitical stance. Critics have accused international organizations of taking a political problem like water crises, for example, and framing them in technical and nonpolitical terms. By calling an approach technical, far removed from political realities they seek to propose solutions. “The identification of a problem is closely linked to the availability of a solution”. (The Will to Improve, Pg:7, by Tanya Murray Li). (Solutions that cater to States, large infrastructure companies and technology companies working to enhance potability and efficiency of water use)

It is important to deconstruct the power relations in any ‘solution’. Any approach must first cater to the end-users while respecting the social context that users are located in. Experts should necessarily make space for alternative view points to accommodate local realities. This shift in the conceptual framework, may help address water poverty – a condition that is mostly man-made.

Ends

This was a part of an assignment for a class at The Graduate Institute, Geneva:
Water Management: Global Theories and Local Realities: taught by Prof. Ronald Jaubert

Wednesday, January 18, 2012

Wiki protest!

What do netizens do when Wikipedia decides to protest?
Imagine a World Without Free Knowledge
is a protest by Wikipedia against anti-piracy legislation in the U.S.

The bill in question is Stop Online Piracy Act (SOPA)
that has the backing of motion picture and recording industries to put an end to piracy on the internet. But this, the biggest web companies say, will transform the web as we know it.

It is a 24 hour black out, but wiki has been tweeted all over today. In solidarity!

Monday, January 16, 2012

Protesting poets

Protest against sponsor Aurum: T S Eliot Prize

TS Eliot prize: Second poet withdraws in sponsor protest

This is a good story. Heartening to read about people who say that "This does not agree with my personal politics and ethics". A great way of registering protest. It is tougher to practice politics you believe in, especially, as in this case, the Poetry Book Society is reportedly in a difficult position.

The question of whether this particular sponsor is above board is another matter. The poet who withdrew from the prize - John Kinsella endorsed the decision of another poet Alice Oswald who did the same. Oswald is quoted as saying "poetry should be questioning not endorsing such institutions". The prize is worth 15,000 pounds.

Here is a link to Hari Kunzru's comment on why he refused the John Llewellyn Rhys Prize sponsored by what he called "the xenophobic Mail on Sunday" in 2003.

Piercing the corporate veil

Check out this story on why parents companies should be made responsible for actions of their subsidiaries.

In this story the author discusses the Shell case as an example on "how corporate ownership structures can affect legal redress in alleged human rights violations."
I had touched upon this in my story on the Bhopal disaster.

There is an interesting link to an organization called task force on financial integrity and economic development
.

Social Audits in India- The Guardian Development Blog

Social audits in India – a slow but sure way to fight corruption

Grassroots campaigners have a new tool to plug the leaks in India's public expenditure, and one state is leading the way

By Priti Patnaik
Friday 13 January 2012

It is not uncommon for dead people to get paid in India. But it's not the family of the deceased who benefit, it's middle men or public servants who cheat the state subsidy system or swindle wages by fabricating names on the payroll. It affects most welfare schemes in India.

Now, though, for the frustrated corruption fighters seeking to reform public service delivery, there is hope. A new tool is emerging to plug the leaks in public expenditure – "social audits", a grievance-redressing mechanism that gives the poor an opportunity to seek justice.

Jairam Ramesh, India's former environment minister, made a name for himself as being unafraid to tackle big industrial corporations. Curiously, he was moved to the ministry of rural development last autumn. Not an altogether bad move, considering the portfolio entails a staggering $20bn of annual expenditure, 8% of the government's budget. The jewel in its crown is a massive jobs guarantee programme, which ensures 100 days of employment at the minimum wage and accounts for half the ministry's disbursal.

However, corruption in the scheme is rife. Villagers are employed in civil work programmes at the minimum wage. Often, they are not paid, ghostworkers abound, and procurement guidelines are violated. To counter this, an independent body – mandated by law – is set up to conduct an audit of the expenditure. Officials are obliged to share documents with village-level auditors trained by the independent social audit team.

A record of the accounts of the civil works is read out in public in the presence of beneficiaries of the scheme and the alleged perpetrators of corruption. This garners interest in the proceedings, and encourages villagers to question transactions – breaking barriers of social hierarchy. The government takes action against those guilty of siphoning off funds. This unique effort at accountability helps to ensure good governance.

These audits were first made statutory in a 2005 Rural Employment Act. Ramesh is now pushing to institutionalise social auditing as a monitoring tool for major welfare schemes across the country. Since more than 50% of the government's budget goes towards welfare schemes, it's important to track how, and how much, money is diverted away from intended recipients.

Most Indian states have delayed conducting social audits, despite these being in place since 2006. They are held back by a lack of political will and entrenched vested interests. However, one state, Andhra Pradesh, has taken a lead. The state set up the Society for Social Audit, Accountability and Transparency, an autonomous body insulated from government interference. Over the years, contractors and middle men have been eliminated.

"Transparency is a big spinoff," says Sowmya Kidambi, who heads the country's first successful social audit team in Hyderabad, the capital of Andhra Pradesh."It empowers people to question elected representatives who attend these social audits on a continual basis – and not just during elections. The public is now as much a part of governance as the elected representatives."

Kidambi has worked with the Mazdoor Kisan Shakti Sanghathan social movement to mobilise support for a Right to Information (RTI) Act and a job guarantee scheme.

Access to records and a public forum are fundamentals of the social audit process. While it is mandatory for the government to share records, the RTI act also makes access easier. It obliges the state to disclose information regardless of whether or not an RTI application is filed. And "reading it aloud in public" is the crux of a social audit. Many of the corrupt individuals involved in the delivery of these welfare schemes are extremely wary of the public scrutiny.

The Andhra Pradesh model is undoubtedly a success, with more than 3,200 social audits and more than 38,000 disciplinary cases brought against officials involved with the jobs scheme. Hundreds have been suspended or punished. In the past three years, the team has been able to recover almost a quarter of the $24m of irregularities detected.

The dissemination of information is proving instrumental in checking corruption. For the first time, officials can use real-time information generated from social audits to redesign delivery of public goods. Hiran Sammeta, an entrepreneur who founded Inputo Technology Solutions, provides "programme intelligence" for social audits in Andhra Pradesh.

His team is trying to bridge the gap between policymakers and those affected. Their work has involved mining about 250,000 documents in the state over the last few years and using the extracted data to predict fraud. He calls this data mining and investigation "predictive analytics". "We need to know how fraud works in order to track corruption," he says.

The social audit process was recently endorsed by the public finance watchdog, the Comptroller and Auditor General of India. Vinod Rai, head of the CAG, says: "All over the world, there is a growing perception among the supreme audit institutions that it is important to partner with civil society to ensure the latter's participation in service delivery and public accountability."

Far from the televised revolutions that made fighting corruption fashionable for the Indian middle class last year, a quieter revolution is taking shape – this time not just in Indian cities, but in hundreds of villages.

--

For some of the hyperlinks in the original story, please visit the Guardian page. There are links to the social audit team in AP among others.

Development Studies

At the risk of sounding conceited,I apologize that I have disappointed the readers of this blog, for I have not been regular in posting on this page. I perhaps, have good reason, although there is never a good reason for being lazy.
Lets just say I have been figuring out the next stage in life. Have now gone back to school at The Graduate Institute in Geneva for a masters in development studies.

Must confess, I have enjoyed going back to studying again. It has given me a great perspective to understand some of the most acute development challenges facing the world today. More importantly, it is providing me context to comprehend where these debates are located and the underlying politics behind say, the water crisis (one of the electives this past semester.)

So overall, I think my engagement on this page will reflect my increased awareness on development issues, as opposed to my former role as a business journalist interested in economic issues.

I hope you will enjoy, engage and think about some of the subjects that will feature on this blog.

Friday, May 20, 2011

Struggles to save a mountain

Here is a documentary on the Niyamgiri hills in Orissa where Vedanta is mining for Bauxite against the wishes of the people.

Sunita Narain has rightly said that the anti-Vedanta movement here, is not spearheaded by urban green lobbies, but by indigenous people who are willing to lay down their lives to preserve their livelihood and the mountain - that they see as their God. Can people with bows and arrows, take on this British company that has blessings of the state government? For the record, central environment ministry has in August 2010 cancelled the environmental clearance given to the $1.7 billion bauxite mining project. But who knows if the ministry will reverse the decision, as it did in the case of POSCO.


p.s. Cannot follow the language in the documentary entirely, because it is not mainstream Oriya. But became sentimental listening to my mother tongue! Barring the completely unnecessary background score in English towards the end, it is a fairly decent introduction to the resistance of the tribals to the mining company.

There was more trouble for Vedanta earlier this month, when there was a red mud-spill at the Lanjigarh Alumina refinery. Some villagers caught the spill pouring into a pond on their mobile phones. Here is a video clip.

Friday, April 1, 2011

Are people and companies the same?

The Economist's Schumpeter column analyzes if corporates and people should have the same rights and obligations. Me thinks, it is a bad idea.

You can read it here:
Peculiar people
How far should one push the idea that companies have the same rights as ordinary people?

Amusing that the corporation behaves like a psychopath, with callous disregard for others, the article says quoting a film by the same name!

Taking this argument to India, the Tata's would insist on privacy! And Dow Chemicals USA will continue to defend that it was technically not present in India during the Bhopal gas disaster in 1984. But that's the thing. It can cut both ways.

The article raises these relevant concerns: "Aren’t they likely to use their collective muscle to trample over the little people? And won’t they invoke the rights of ordinary people without burdening themselves with the responsibilities?"
And of course, mighty corporations can have personal political affiliations that can directly counter interests of the people. We surely know the direction that governments will take, when faced with huge Goldman Sachsesque contributions as against our friend John Smith who teaches in a school.

Friday, March 11, 2011

No right to life?

People fighting for the rights of the excluded, seem to have no right to life of their own.

The murder of Niyamat Ansari, an activist for the National Rural Employment Guarantee program, who helped labourers file applications related to right to information, right to work, is another failure of the state of Jharkhand. He was also working on the right to food campaign.

This only adds to the long list of contemporary unsung Indians who are giving up life to restore institutions and people’s right to good governance.

Tehelka had a column in late February on the dangers of doing good in India. It takes off from Binayak Sen. I quote journalist Shoma Chaudhary, the author of this article:

“Doing one’s duty is no longer an imperative in India. Nothing governs us as a society now except the miracle of individual choice. We are secured by the fact that some people choose to be good, no matter what. But there are myriad dangers in that. There is not just the might of the State to confront. There is also the temptation at every turn to just give up, part the skin and slip over into the silken side where one half of India is living a charmed life. If you don’t fight the ugliness of the State, it will behave in benign ways with you. That is one of the hardest lessons being good in India teaches you.”

A whistleblower in Russia

In the age of Assange, whistle blowers are in vogue.

The Guardian had a story on Russian blogger Alexey Navalny and his efforts to jail the corrupt!

The article describes him as "Russia's chief whistleblower – a one-man WikiLeaks" who has made a career of going after Russia's untouchables. He uses publicly available information - an audit report in this case to get after Transneft - the state pipeline monopoly. How cool is that!

The story concludes on his quote - "But Navalny says he has no fear. "Any person who undertakes independent action in Russia – in journalism, business, anything – takes on risk," he said. "I can understand they can do whatever they want, but that won't stop me."" May force be with him.

Technology and capitalism

The cover story in the Wired magazine this month, certainly made me sit up and take notice. Not that poor labor conditions for the manufacture of iPhones was new, the fact that the cult magazine gave it cover story status was something.

You can read it here:
1 Million Workers. 90 Million iPhones. 17 Suicides. Who’s to Blame?

People will not stop buying iPhones or numerous other products, they may not boycott Apple and other companies, but hopefully they will take notice. There is a great cost to our conveniences that somebody else far away, in another part of the world, is paying for.

Of course, many believe that 17 is a small number. But that there is a number at all is worrying.

Tuesday, February 1, 2011

Why businesses buckle under pressure?

The Institute for Human Rights and Business has analyzed the decision of why internet service providers and telecom companies gave in to Mobarak's pressure too easily.

Seriously, why do companies have "to leave" before they "actually" have to leave? They seem all too powerful when dealing with customers and people in general, but where does the corporate bravado and muscle go when it comes to facing up to the State in the eye? Barring Google's stance in China, I can't recall too many instances. In this case, will the companies compensate Egyptians for plugging out services when they needed it the most? One can only shudder to think about families of victims of police brutality struggling without communication services.

By turning up at Tahrir Square today, more than a million Egyptians, have stolen the thunder from the symbols of new media - namely twitter and facebook. A reporter on Al Jazeera rightly said, that tweets or no tweets this revolution has festered.

I really hope the winds of change blow in India too. To take back democracy from the people who have made a mockery of it. And this should not be limited to fighting for the murder of a model in the capital city.

Amen.

Monday, January 24, 2011

Editorial: Access to justice for the poor

Poor justice
Harsh Sethi / January 19, 2011, 0:37 IST
Business Standard, India

It is somewhat intriguing that in the intense discussions about strategies to ensure inclusive growth and development, both our politicians and policymakers have consistently sidestepped, if not neglected, the problem of the numerous barriers to accessing basic legal services within the justice system. Despite our Constitution incorporating civil and political rights, and the directive principles underscoring respect for human rights and human dignity, it is uncontestable that in our laissez-faire system, justice, like any other commodity, is something that can be bought by those who can afford the cost. Abstract statements about “equality in and before law” cannot hide the ugly reality that the poor and the underprivileged are doubly penalised by our legal system — first on account of the costs of access, poor knowledge of the archaic court procedures, and so on, and because the legal system differentially favours those with greater resources and better social networks. No surprise, then, that in every scheme and programme, the poor feel that they are being squeezed out, often through the working of law. It is, thus, critical that all discussions of development must necessarily contend with the vexed questions of both equality before law and justice if we want to avoid the abuse of power and lawlessness that have become a part of the lot of the poor.

For too often the discussions about access to and equality before law have focused on supply-side constraints — the insufficiency of courts, judges and lawyers — as also procedural innovations to make the legal system cheaper, faster, more transparent and fair. Unfortunately, we have spent insufficient energy on understanding and deconstructing the relationships between law, justice and fairness, concepts that are deeply influenced by history, ideology and culture. In a multi-cultural and plural society such as India, with a multiplicity of legal cultures, with different social segments incorporating different notions of right and wrong, it is hardly surprising that judgments rarely produce any sense of satisfaction. Moreover, as Upendra Baxi so convincingly points out, improving access to law should not be conflated with access to justice. “Further, because law is not exhausted by adjudication and crucially entails law as legislation, implementation and enforcement, a primarily court-centric talk eludes a fine regard for considerations of political justice, that is, critical engagement with the impunity of holders of public power” (p. 75). Nothing exemplifies this better than the fate of riot victims or those displaced by development projects as they struggle to resume “normal” life in the face of continuous opposition from those who had victimised them, and this includes the state.

All of this has only become more vexed in the context of globalisation as now we have to contend with multiple national contexts and a (severely contested) body of international law. Remember Bhopal and the inability to bring the Union Carbide Corporation to justice.

The book under review, a product of the UNDP programme on Access to Justice, a subset of the work of its Democratic Governance Group, brings together a range of essays, both conceptual and empirical, on efforts to improve access to justice in the developing world. There is great merit to such collections, for not only do we learn that our situations and problems are not unique (arguments about Indian exceptionalism) but also because it becomes possible to learn from the experience of others. Most importantly, we learn that issues of law and justice cannot be left to the internal deliberations of lawyers and judges, and to courts, and need to involve other elements in civil society if we are to move towards a more fair and just system.

Of particular interest are the essays on access to justice in plural legal systems, more specifically the role of community justice systems (shades of our khap panchayats) as also communitarian and religious laws and how they undermine the rights and dignity of women (Hudood Ordinances in Pakistan). Equally instructive is the discussion on how public interest litigation or social action litigation, which India can claim as its contribution, has travelled to other countries as diverse as South Africa and Nigeria, and countries in Central and Eastern Europe. R Sudarshan’s overview of the evolution of legal understanding from our initial encounter with western law through colonialism, which resulted in an “individualisation without rights and bureaucratisation without the rule of law” as also the disjunction between state law and the role of non-state legal institutions, deserves a close reading. Equally, the discussion on the limits of both legal liberalism and legal radicalism, particularly in contemporary climes of neo-liberalism, proves once again that even as we may have normatively internalised the new language of human rights, larger economic and social processes continue to disempower the weak and the poor.

It is indeed unfortunate that despite a recognition of the centrality of law and legal processes, so much of our discussion of development choices seems oblivious to the rich literature produced by legal scholars. Equally, it is instructive that in none of our Planning Commissions have we ever thought it necessary to induct a jurist.

For a government never shy of claiming its orientation towards the aam admi, maybe this is a move that might help.

JUSTICE FOR THE POOR
Perspectives on Accelerating Access
Edited by Ayesha Kidwai Dias and Gita Honwana Welch
Oxford University Press
xxii + 678 pages; Rs 895