Report from the Working Sessions
International Strategy Meeting on Economic, Social and Cultural Rights and
ESCR-Net General Assembly
December 1 - 4, 2008
To download the report, click here.
SUMMARY OF WORKING SESSIONS ON
TRADE, INVESTMENT, FINANCE AND HUMAN RIGHTS
The main aims of these working sessions were three-fold: to share conceptual understanding, practical experiences and useful strategies of human rights work on economic policy, to build consensus on a coordinated set of goals, strategies and actions, and to consider drawing up plans for a potential collective work alliance. This happened through mutual-learning sessions, along with skills-based workshops and strategy sessions.
1. Moderation, Miloon Kothari, Housing and Land Rights Coalition, India
2. Introduction, Daria Caliguire, ESCR-Net Secretariat
Daria began by describing the origins of this initiative in the network. When the network was in formation, one of the strongest expressions of interests by groups was in working on trade and investment issues together. There was a collective sense that many communities and groups are feeling the impacts of international economic and financial forces on the realization of ESC rights locally, but that they don't fully understand how these forces and agreements work nor how to respond effectively to them. As a result, a Working Group on trade and investment was formed, and one of the key initial functions was information-exchange.
Daria then went on to explain how over time the initiative has taken on specific project activities aimed largely at capacity-building and mapping of the field. These activities were undertaken to get a better sense of what is needed and how to strengthen groups' capacity to work on trade and investment issues. The project activities to date include:
1. A mapping of member groups working on trade, investment and finance, undertaken by the ESCR-Net secretariat
2. A pilot capacity-building project on agriculture and trade agreements, co-organized by the Center of Concern and ESCR-Net
3. A workshop on integrating human rights in Financing for Development, which was co-organized by Center of Concern and the Office of the High Commissioner for Human Rights
4. A workshop, strategy exchange and legal analysis of Export Credit Agencies and Human Rights, co-organized with Halifax Initiative and ESCR-Net
3. Human Rights Advocacy from Within the World Trade Organization, Carin Smaller, International Agriculture and Trade Project (IATP), Switzerland
Carin addressed her organization's work attempting to bring human rights concerns into international trade and investment negotiations, particularly in the World Trade Organization (WTO). Human rights advocacy in the WTO has proved difficult according to Carin, as members and the Secretariat of the WTO are reluctant to allow discussions on human rights. The WTO's Doha Agenda, for all its faults, has succeeded in opening doors at the WTO to discuss human rights within the WTO. First, a group of 46 developing countries, known collectively as the G33, brought in the concept of the right to development in their defense of food, livelihood security and rural development. Second, the TRIPS campaign on access to medicines and the subsequent amendment of the TRIPS agreement, brought the right to health into the WTO. Finally, the new UN Special Rapporteur on the Right to Food, Olivier de Schutter, made his first fact-finding mission to the WTO and has been invited by the WTO Director-General, Pascal Lamy, and a number of WTO ambassadors to the WTO. These are enormous achievements. There are four areas, according to Carin, where we could continue to strengthen human rights advocacy at the WTO:
1. Use the human rights special procedures and mandates - for example by encouraging other Special Rapporteurs to conduct fact-finding missions to the WTO
2. Use the annual WTO Public Forum - 2008 was the first year that human rights topics were allowed at the public forum. The OHCHR was even allowed to co-organize an event. This helps to raise awareness of human rights at the WTO.
3. Trade Policy Review Mechanism - ask governments to intervene or conduct shadow reports.
4. Amicus Briefs - environmental groups have had some success here but human rights groups have never tried to use this mechanism for WTO disputes.
But while these tools and mechanisms are useful, these are small fights. They will have very little impact on changing government positions or the global trade architecture in favor of human rights. If we truly want to change the model of trade to better reflect states human rights obligations, Carin proposed two paths:
1. Human Rights Clauses in Trade Agreements - similar to the push for labour and environmental clauses that the U.S. has started introducing in its free trade agreements and similar to the social clause that the Europeans tried to introduce at the WTO. This is not the best pathway, as it is easily manipulated to serve protectionist and harmful interests rather than to promote global human rights, labour or environmental norms. Many groups, including the union movement and the environmental movement, have abandoned this approach.
2. Ensure Governments Uphold their Human Rights Obligations in Trade Negotiations and Agreements - this is the most powerful way to change trade and investment to serve human rights. It would include steps to pressure trade ministries to defend human rights in negotiating proposals. It would include more action from human rights commissions and social ministries to raise human rights concerns to trade ministries. It would include greater collaboration between UN missions and WTO missions as well as between UN agencies and the WTO.
Having laid out the landscape of human rights advocacy in the WTO, Carin argued that it is important to be aware that the WTO is no longer in the spotlight. 2008 unleashed a series of crises (climate, food, energy and finance) that have become more urgent and higher priorities of governments and people all around the world. If we want to be smart about how we shape the rules for the global economy we would actually leave the WTO to one side for now, and dive into global financial crisis. This is the highest priority for governments now and in the coming years. The human rights framework is completely absent from discussions about how to revive the global economy. Human rights need to be at the core of efforts to solve the financial crisis. Carin's conclusion was that now is the time for us to convince governments to use human rights as a basis for solving the financial crisis.
Carin then briefly described the recent Confronting the Global Food Challenge conference in Geneva in November, which made special reference to trade agreements that violate the right to food. The main message from the conference was to not allow the status quo to continue, and that now is a key time to concretely realize human rights through trade agreements.
4. Human Rights Advocacy Outside of the WTO, Zoë Goodman, 3D, Switzerland
Zoë kicked off her presentation by describing the mandate and work of 3Dà Trade - Human Rights - Equitable Economy, which aims to promote collaboration amongst trade, development and human rights professionals, to ensure that trade and trade-related rules are developed and applied in ways that foster an equitable economy. 3D is the only organization whose primary focus is trade and human rights.
She then described the 'added value' of a human rights approach, as well as the challenges activists face. First, human rights focus on the needs of the poorest and most vulnerable members of a society, who must to be taken into account as they are often disproportionately affected by trade and trade-related policies. Second, a human rights approach offers a range of valuable mechanisms for challenging harmful policies and holding governments accountable to their human rights obligations. Third, human rights offer a potentially powerful shield in trade negotiations. If developing country trade officials were to argue against certain provisions from a human rights perspective (e.g. this clause will threaten our government's ability to uphold the right to food of the population), it would be very difficult - both legally and morally - for their negotiating partners to counter such arguments. According to Zoë, one of the greatest challenges for the human rights approach is that human rights law continues to be perceived as weak, especially when contrasted with trade law and the economic consequences governments face if they renege on their trade commitments. In legal terms, human rights and trade law have the same weight - the challenge is to make the weight of human rights law felt in practice.
Following this, Zoë explained 3D's strategies to encourage the use of human rights mechanisms in trade issues. 3D provides information tools to human rights activists and groups working on trade, outlining the potential human rights consequences of trade agreements and trade negotiations. These documents indicate relevant human rights mechanisms, such as the UN Treaty Bodies and Special Procedures, which can be used to promote a more equitable international trading system. 3D staff members also regularly raise trade-related concerns with the various human rights mechanisms. Furthermore, 3D organizes panels and discussions which aim to demonstrate the human rights consequences of trade agreements and elaborate ways the human rights system could be used to support social and economic justice. In illustrating the potential of human rights laws and mechanisms for addressing trade issues, 3D hopes to strengthen the human rights system and create a more inclusive international trading environment that supports, rather than subjugates, human rights.
5. Economic Integration, Trade and Human Rights, Javier Mujica Petit, Perú Equidad/CEDAL, Perú
Javier began his presentation discussing the post-World War II context, followed by the Washington Consensus, creating a new role for the state and market, and a new vision of citizenship. The process of economic globalization and capitalist integration favored by multinational companies, Javier argued, brought the concentration of power in super-national and non-accountable economic actors, with states as the principal subjects in international law increasingly limited in their ability to affect policies. This created an international dissociation between state obligations to ensure human rights and their obligations to limit their protection. Thus, in this context, the principal characteristics of these trade agreements take as a basis WTO norms, ignoring the negative impacts of previously imposed liberalization and privatization policies, imposing restrictions on potential economic policy actions such as capital controls, and including various investment clauses which give authority to MNCs to bring states to arbitration should they attempt to protect human rights or the environment. The secretive and non-transparent nature of the trade negotiations, also results in little if any input and participation from civil society and democratic bodies like Parliaments.
With this as background, Javier proceeded to describe the overall strategy of the human rights movement in the Americas-to revert this dissociation, and ensure a hierarchy of norms which (re) establishes the primacy of human rights law, based on the UDHR, the UN Charter, etc. over all other obligations. The specific objectives, according to Javier, are to:
- Strengthen democratic control mechanisms to overcome the de-responsabilization of states, multilateral agencies and MNCs
- Ensure increasing participation of civil society organizations in trade negotiations and debates to expand the political space necessary for the validity of the HR
- Promote the idea that integration should be more than a commercial / economic one to include social / environmental integration
- Ensure that economic integration involves commitment of States and civil society to improve quality of living and reduce inequality between and within countries
To meet these objectives, Javier described 3 strategies his organization has been using:
- Promote the approval of an American Social Charter, which would recognize and amplify the protection of individual and collective rights, guarantee participation and conflict resolution mechanisms, as well as strengthen the Inter-American system of human rights
- Influence trade agreements negotiations, breaking the power of MNCs and strengthening the reach of the democratic clause in the EU association agreements
- Develop other forms of integration
Javier then spoke on his work within the 2003-2007 negotiations of the Peru-US free trade agreement, which was centered on organizational processes and alliances, with a number of national and regional campaigns, along with strong alliances between to disrupt the asymmetry of power, creating alliances especially with labor unions, NGOs and legislators in the US and Peru. By 2007, we were able to insert some key social amendments on generic pharmaceutical patents and health, environmental and forest protections, and national control over port services. Certain key labor rights protections were also included, such as the express recognition of the ILO declaration of fundamental labor rights, the impossibility to make labor law flexible, and the establishment of a dispute mechanism for labor concerns.
The inclusion and development of a democratic clause in the association agreement between the Andean Community and the EU was then discussed. This clause, which assures the respect of human rights and the democratic status of law between parties, obliges the parties to fulfill their human rights obligations independently of whether they are explicitly contained in the treaty. As a normative system, the democratic clause is helpful in asserting that trade policy is not an end in itself, but instead a tool with the purpose of ensuring development, equal distribution of the benefits of economic growth, social cohesion, democracy, the functioning of a strong civil society and the realization of human rights.
6. Trade Liberalization, Gender and Food Security, Anni Mitin, Southeast Council for Food Security and Fair Trade (SEACON)
The focus of SEACON, Anni explained, is work on trade, food security and women. This involves education and outreach with a diverse range of groups and farmers that in general do not have much awareness of trade and investment policies and how they are affected by them. SEACON also lobbies for the removal of subsidies in larger economies, which threatens subsistence farming in some areas. The impact of privatization and commercialization, for example, in agriculture in the region results in less subsistence farming in the region, as the rural poor become contract workers. Mechanization in agriculture has also displaced many women from agricultural production, and thereby leading to a lose of their livelihoods. The food crisis is an example of how human rights, if neglected, can directly affect peoples lives and livelihoods.
7. Trade Liberalization, Gender and Food Security, Sandra Ratjen, FIAN International
Sandra described then the work of FIAN International, who works in direct contact with and upon requests from affected people, with extensive work especially in Western Africa. This is preceded by a research on how to improve the circumstances. Some of the tools used by FIAN include fact-finding missions, gathering of information to further initiatives by various organizations, education, training, case work, as well as lobby and advocacy.
8. Advocacy on TRIPS Agreements and the Right to Health, Hossam Bahgat, Egyptian Initiative for Personal Rights (EIPR)
Egyptian Initiative on Personal Rights, Hossam explained, started to focus on reviewing trade arguments and their potential impacts on the conditions for local manufacturers of generic medicines. EIPR has since conducted trainings of Egyptian lawyers and others, leading to an emergence of a network of Arab activists underway to work on a TRIPS Plus. Data will be used from one country and how the agreement structured to lobby in another country. EIPR has also done some work on access to treatment. There has been some improvement in this area, according to Hossam, particularly due to the General Comment and the work of Paul Hunt. He suggests that the groups should rally around the right to health agenda.
For the first time, we are witnessing a paradigm shift according to Hossam. Developing countries are speaking with one voice at the WHO and at the WIPO challenging debates about patents, suddenly pressuring governments to move. In May 2008, for example, the WHO adopted a Global Strategy on Public Health and Innovation, which is perhaps the most important demonstration of movement in this direction. This strategy moves discussion on access to medicines from WTO to the WHO giving the WHO the political mandate to work on this issue. There should be more human rights groups monitoring these developments and engaging with the process, according to Hossam. MSF has an access to medicines campaign but not much beyond that (with HR groups). As an area of action, NGOs could push to bring successes from WHO back to the WTO, and highlight them. 3D is doing a positive job by identifying the first intellectual property case to bring to the Optional Protocol, and Hossam suggested the group contribute here as well.
9. Notable Comments from Discussion
The discussions then involved sharing similar or contrasting experiences, and raising questions on what wasn't clear from the presentations.
Michelle, AI Africa-The high level of economic illiteracy in Uganda is a major obstacle to realizing human rights objectives. Most MPs are economically illiterate, and thus cannot make economic policy which would protect its people's interests. Poor people are also very ignorant of trade agreements, and thus the knowledge deficit in Uganda, and Africa generally is acute. The biggest challenge according is bringing this information to the grassroots.
Carin Smaller-The key message here is that governments must not emphasize the obligations to trade and investment agreements over their primary human rights obligations. With the food and financial crises currently occurring, we have a real opportunity for mass mobilization to change the status quo. We should not have the banks themselves, for example, correcting the current banking crisis, and we have a unique opportunity now, argued Carin, to articulate what the new system should and can look like.
1. Documentation, Advocacy, and Alliance Building Around Export Credit Agencies, Karyn Keenan, Halifax Initiative, Canada
Karyn began her presentation by explaining export credit agencies (ECAs). They are public entities which support domestic exports and foreign investments with government-backed loans, guarantees, credits and insurance, and provide political and financial risk. Most OECD countries, BRICs, Israel, Indonesia, Malaysia, etc. all have ECAs. They are important players. In 2005, for example, ECAs in OECD member nations provided US$125 billion. China's Export-Import Bank to become world's largest public IFI by 2010, with an annual budget of $40 billion. The WTO estimated that ECA business will increase by around 30 % in response to the global liquidity crisis, with increased co-financing between private banks, ECAs and other IFIs. The human rights impacts of ECAs are also becoming increasing clear, including forced displacement of local populations, workplace injuries, exposure to environmental contaminants and biological pathogens, destruction of sacred cultural sites.
Activism around ECAs, according to Karyn, can occur at the local and national level through policy and legal reform. On specific projects, strategies could include attempting to block ECA support, improving corporate operations and/or seeking redress. At the international level, projects are often supported by multiple ECAs. International policy development changes are needed, such as through the special Export Credit Group (ECG) set up by the OECD, and now potentially through the office of the UN Special Representative on business and human rights, who has been paying closer attention to ECAs recently.
The advocacy strategies in general then so far have been to document/expose the human rights problems, and conduct analysis. Also alliance-building has been carried our both within home states, between home states (through ECA-Watch--www.eca-watch.org), and between home and host states. Other advocacy work has taken place within national and international policy reform, as well as work on specific cases in specific ECAs and on specific issues, for example, human rights, corruption, transparency, etc.
These efforts so far have accomplished some objectives, however limited. ECAs within the OECD have considered adopting the IFC Performance Standards for project finance decisions. Two ECAs have adopted the Equator Principles, voluntary guidelines in essence based on the IFC Performance Standards. Three ECAs now have human rights policies (UK, Canada, US). Furthermore, John Ruggie, UN SRSG on business and human rights stated in April 2008 that "ECAs should require clients to perform adequate due diligence on their potential human rights impacts," one step forward. There was also a Canadian parliamentary committee, which stated that export and project financing should be made conditional on corporate compliance with human rights standards.
So, what, Karyn asked then, were the strengths, challenges and opportunities of a human rights approach to ECA activism? The strengths she referred to here were that there was a strong legal foundation: human rights obligations of states and their agencies, there are strong synergies with diverse social justice communities (human rights/finance/corporate accountability), and it is an issue gaining profile. The obstacles and challenges face so far include the fact that ECAs lack human rights policies, remedies are difficult to access (for instance, ECA complaints mechanisms, untested home state administrative remedies, ECAs' sovereign immunity, limited access to home state judiciary, time, cost, resource-intensive). Finally, a number of non-OECD ECAs are becoming prominent, creating a potential "race to the bottom" on standards and activities between ECAs. Important opportunities include: the current international debate on TNCs and the state duty to protect, Ruggie' interest in ECAs and human rights, potential reforms with public agencies, increased sensitivity of ECAs to human rights, ongoing policy debates, for instance within specific economic sectors, e.g. the Canadian Roundtable on extractive industries, and finally the emergence of non-OECD ECAs, which may provide an opportunity to broaden alliances.
2. The Limits of Independent Investigation Mechanism of the Inter-American Development Bank: The Case of the Cana Brava hydroelectric dam in Brazil, Leandro Scalibrin, Movimento dos Atingidos por Barragens (MAB), Brazil
Leandro presented MAB's experiences in attempting to seek redress within the Independent Investigation Mechanism (IIM) of the Inter-American Development Bank for the human rights abuses relating to the case of the Cana Brava hydroelectric dam in Brazil. He began describing the dam project, constructed by two private companies, Odebrecht (Brazil) and GDF/Suez or Tractabel (Belgium/France), which received partial funding form both the Inter-American Development Bank (IDB) and BNDES, Brazil's national development bank.
MAB, a nation-wide Brazilian social movement, fights against the current Brazilian development and energy model, and for the reparation and redress for socio-environmental and human rights impacts of large dams constructions. In Cana Brava, one thousand indigenous and other families were strongly organized, though they were not consulted during the planning and construction of the dam. As a result, MAB organized 3 protests at the headquarters of the IDB, organized a permanent camp settlement in the area, and entered a demand within the IDB Independent Investigation Mechanism in 2002 as the construction was concluding. Later, in 2006, a complaint was brought to Brazil's national human rights commission for judgment.
The IDB IIM process began with a claim by MAB that the IDB had not fulfilled its own energy and compulsory relocation policies, nor attended to the impacts of the project on those affected. A number of hearings were held between 2002 and 2005 focusing in particular on the issue of relocation of those affected. By 2005, MAB was certain the IDB was erring on the side of their client Suez, so IDB's headquarters were occupied by the affected people, demanding full reparations. Suez then responded by cutting its relationship off with the IDB. It wasn't until 2006 that the IDB released a summary of the IIM report about Cana Brava, refusing to release the whole report given "confidentiality issues." Of the conclusions released from the report, four are noteworthy. The IIM admitted that the communities indirectly affected were not adequately identified, the IDB was slow in responding to the need for a social hearing, the Bank erred in not identifying some parties eligible for indemnization, and the IDB approved an incomplete relocation plan which did not follow its own socio-environmental policies. The IIM's full report is still not public, and we haven't gotten any redress than this summary report. Limits of this mechanism are clear. It is not transparent, and in effect violates the right to information. Also, the IIM is not a judicial body, it has no specific obligations to repair damages caused, nor can documents of the IIM be used as evidence in later judicial bodies. The IIM then has very weak remedies, and in the Cana Brava case, the company faced no consequences thought the Bank's policies were clearly violated.
MAB also brought a case to a special commission created by Brazil's national human rights commission, the CDDPH, which concluded that the Cana Brava project was characterized by the following violations of human rights to information, participation, free association, effective remedy, land, work, food, housing, water, free circulation, health, culture and indigenous rights. The commission recommended strong measures towards the government and company to repair the damages, but the affected communities have still not received any type of indemnization. Yet this body is also limited, in the sense that neither does it have judicial effect nor provide obligations of redress.
Leandro concluded that the IIM does not serve for much more than to privilege abusive company behavior over the human rights of those affected. This case also shows that voluntary guidelines and policies are not sufficient to guarantee the respect of ESC rights by companies. The creation and adoption of binding normative framework on business and human rights is necessary is needed, according to Leandro, as is the creation of an effective and adequate mechanism of access to justice and judicial protection in cases where companies violate rights.
3. Notable comments from discussion
- Carin Smaller-While all signatories to the ICESCR Convention have the right to protect the rights of people living within their jurisdiction, and outside, it does not exclude states from the duty to protect people in extraterritorial areas.
- Katrin, FIAN-FIAN Int'l understands that extraterritoriality is controversial, but there are indications that Germany, for example, intends to incorporate certain principles outside her territory as part of her legally binding obligations.
Based on the morning's discussions of work being carried out by groups around the world in this area, this session then allowed for a more interactive roundtable discussion to explore common challenges, reflect on the obstacles and challenges, strengths and weaknesses of the human rights approach to trade, investment, finance and human rights.
1. Notable comments from discussions
Daniel Taillant, CEDHA, Argentina-Daniel spoke on the case of the Finnish-Spanish-owned pulp mill company in Uruguay, and outlined lessons from advocacy. First, what seems to be disorderly in finance is in fact orderly and hierarchical. The problem is that companies do not have staff to review investments and their impacts on the environment. Second, the role of the state is important, as it is generally the promoter of investment. This creates a conflict of interest. For example, where a judge who generally favors investment initiatives of a certain specification presides over a case that is related to environmental or human rights abuses. Third, politics happens behind investments. For example, the withdrawal of support for Argentina by the US on credit withdrawals for having supported Hugo Chavez. Human rights initiatives should in the future go beyond the general human rights scope and think of how investment opportunities affect human rights concerns directly.
Hector Moncayo, ILSA, Colombia-ILSA is part of a network against free trade agreements, which is also part of a social alliance at the continental level. The alliance believes there is no democratic clause that can make good on free trade, because these free trade agreements are themselves violations of human rights. They actually represent States' renunciation to protect human rights and this has to do especially with intellectual property and protection of investment. By this, States cede their responsibility because they don't carry out activities representative of their social and human rights responsibility. However, this doesn't mean that social movements have no influence. There have been changes in these agreements as a result of the activities of social movements.
Unidentified participant-Grants globally are on the decline, and there are more restrictions on grants, and an increase in loans. This is healthy, but the new position tends to disadvantage those with huge debts who from practice get the least amount of loans. This is frustrating genuine investments from countries that require the loans. Today there is a new criteria that is investment assessment climate where for example the less you tax foreign companies the more you encourage investment. Many countries as a result are changing their policies, not necessarily because they embrace these policies, but to conform.
2. Other Key Points from Discussions
- Need to build on the lessons from the WTO
- How to pursue goals or objectives of the groups sustainably
- Helpful to draft a strategy on partnership in ESCR-Net as catalyst
- Helpful to update the mapping of Network members work in this field
1. Introduction/Moderation, Radhika Balakrishnan, Marymount Manhattan College
This final part of the Accessing Justice Workshop focused on corporate finance, and how targeting different global institutions that financially back business operations can provide more points of leverage for business and human rights campaigning. Radhika introduced the panelists, wondering how in particular the current financial crisis might give the working group obstacles, but possibly even more opportunities. What do human rights norms contribute to looking at the financial sector, especially violations of ESCR? In order to carry this out, Radhika emphasized the need to increase dialogue and coordination.
2. Introduction on the Reigning Global Public and Private Financial Infrastructure, Aldo Caliari, Center of Concern, USA
Aldo introduced his session contextualizing the current moment. What we see unfolding currently, according to Aldo, is a financial crisis that, while starting in the US subprime mortgage sector, has reached global proportions. Despite of the belief that some countries might be able to "decouple" from the global financial trends in the North, It is clear now that people in all countries will be affected, including those that did nothing to cause the crisis. So, from the beginning, Aldo explained, this financial crisis raises a fundamental issue of justice.
At the root of the financial crisis are general trends towards the liberalization and deregulation of capital flows over the last two and a half to three decades. These trends are crucial issues for our community concerned with economic and social rights, according to Aldo. He went on to explain four ways in which the degree of movement of capital should be a concern to human rights activists.
First, a significant amount of research, even by mainstream economists, shows that with greater mobility of capital, national financial systems become more prone to financial crises, which reap havoc upon the enjoyment of economic and social rights. Retrogression of standards of living, reduction in incomes, or, seen in a different way, increases of poverty, reduced access to services, higher unemployment, and other harms to the realization of ESCR often result.
Second, the liberalization of capital flows, especially once deemed irreversible by legal codification in trade, investment or finance agreements, Aldo argued, suppresses the possibility of states to use policy tools to implement expansionary monetary policies. That is, policies that could boost employment are compromised due to the state's loss of autonomy to regulate the exchange rate and the amount of money in circulation.
Third, the liberalization of capital flows, Aldo pointed out, often goes hand in hand with policies which privatize the banking sector. This allows for the penetration of foreign banks in the domestic credit market. Now, while orthodox economists would continue to hold that increased presence of foreign banks can only mean more access to credit, the empirical reality shows otherwise. In country after country, foreign banks have been reluctant to lend to those most in need of credit. In the process, foreign banks compete with local banks, usually resulting in the closure of these local banks. Those with the lowest incomes are even worse off, as the closure of local banks denies them access to even the minimal credit they were used to. Together with liberalization, privatization of the banking sector forces the government usually to forfeit, more or less explicitly, its capacity to utilize policy tools to regulate bank behavior to ensure access to credit for the poor.
Fourth, the liberalization of capital makes taxation of capital more difficult, explained Aldo. Yet, the state still needs to raise revenues somehow. Either the state loses revenue, which puts it in a more difficult situation to fulfill its economic and social rights obligations, or it shifts taxation from the capital-intensive sectors to labor-intensive sectors. In other words, the tax system becomes more regressive, more skewed against the poor, and more likely to redistribute income upwards.
Aldo then went on to focus on hedge funds, on which he wrote an article a year ago: http://www.coc.org/system/files/Regulation_of_HedgeFunds2007%5B1%5D.pdf. Hedge funds, Aldo explained, are pools of funds that a number of investors put together, which employ a lot of leverage. That is, they engage in bets that surpass, by several times, the actual capital they have on hand. They therefore specialize in pursuing highly-sophisticated, high-risk investment strategies with the purpose of achieving high returns.
We can see two alarming trends related to hedge funds. First, we see a relaxation of restrictions on who can invest in a hedge fund. Though originally restricted to large investors who could be presumed to be knowledgeable about the strategies the fund pursued, these hedge funds have increasingly been allowed to become replacements to pension systems for the average citizen, which originally had several regulatory restrictions to ensure a certain degree of protection for the average citizen who cannot be presumed to know a lot about financial strategies they might employ. Second, we see a decreasing availability of alternatives for citizens seeking to protect the value of their savings. In some cases, public pension systems have been privatized, so citizens have had no option but to resort to private pension funds. In other cases, public pension systems exist but are so unreliable that citizens are forced to seek a realistic alternative. In yet other cases, private pension or mutual funds themselves, or even the public pension funds, are faced with the inability to maintain the value of funds by pursuing "ordinary" strategies in an environment of high competition. In all, we have seen an increasing trend of making up for these difficulties by resorting to hedge funds.
Aldo argued that the state in effect jeopardizes its social security obligations when it invests in hedge funds and fails to properly regulate them. If citizens have to rely on private pension systems, and the state is unwilling to regulate either the investments made by these agents in hedge funds, or the behavior of the hedge funds which receive these pension savings, then the state is relinquishing its obligations to regulate in the interest of the social security of its citizens.
There are other ways in which hedge funds may impair the achievement of economic and social rights. Aldo offered a few. One revolves around the highly speculative strategies they employ. The market bets which hedge funds make, with little real funds of their own, can trigger enormous consequences in real economies related to the target instruments they are betting with. Some analysts have traced down the important role played by hedge fund speculation in the East Asian crisis. A second avenue by which the activity of hedge funds may have detrimental effects on economic and social rights is through strategies used to achieve ultra high returns. One such strategy is to take controlling positions in companies just in order to force changes in their management and structure. These changes usually involve firing workers, selling off infrastructure and capital for extraordinarily short-term gains. This occurs even at the cost of the long-term health of the company, and the damage to employment and working conditions of workers.
3. WIKIJustice: Leveraging Human Rights Advocacy in International Development Finance, Daniel Taillant, Center for Human Rights and Environment (CEDHA), Argentina
Daniel reviewed with reference to CEDHA's hands-on experience, a panorama of options, strategies and specific mechanisms available to pursue to ensure that financial institutions and their client businesses are consistent with human rights and other standards. Daniel began his presentation by giving a background on the Botnia and ENCE pulp mill case, which involved the construction of two pulp mills in Uruguay, along the river border with Argentina, with potentially devastating contamination and economic effects.
Daniel emphasized the key of mapping out the various dimensions, actors and relationships when developing a strategic advocacy plan, and determining their distinct interests. The actors could include the company itself, providers, the suppliers, the subcontractors, the financiers, who all play a part in this investment. He pointed out IFC, MIGA, private banks, and Uruguayan government each as supporters of the project. We normally identify the company, the IFI, and the private banks, but then as you begin to look at all of these actors, you begin to see a lot of different types of relationships. If you start looking at some of the financial actors, for example at some of the financial actors, like the export credit agencies, they have a very weak or no relationship with the community, but a strong relationship with the government. This set of relationships will have a very important impact on how your engagement proceeds. It is important to orient your advocacy on the stronger relationships between actors, where engagement has more chance of success. But in our experience in this case, the extent that we were able to address the weak relationships as well, our advocacy became more successful, more complete and complementary. It's important to think about how to strengthen those weak linkages.
The next key question then was to consider what are different frameworks and norms which govern each particular actor. What he found is that what governs a public bank or what governs a private bank are very different sets of norms. As strategic advocates in investment issues, Daniel argued, we often think that we must advocate on firmly-established human rights principles, but in fact, justice in the case may be governed by other issues, not necessarily founded in norms or laws. There is a long list of other issues which might govern this relationship in your advocacy concerning perceived rights which while not necessarily written into law can serve a very powerful instrument in this advocacy, and can be very successfully with social movements in communication strategies.
Daniel then described what he called the "accountability drivers" of Botnia, the Finnish pulp company involved, highlighting the importance of understanding well what the Botnia representatives sensed they were accountable to, for example: their Board, the Export Credit Agency, the IFC, the Finnish Government, related private banks, Finnish media, labor issues and shareholders concerns, and then even less concern with their own CSR commitments, the OECD guidelines complaint, and EU presidency of Finland. These were the spaces the company took interest in, and obviously the company was largely divorced from interest or contact with the community.
Daniel then spoke on the use of the Equator Principles, a set of voluntary social performance guidelines governing project finance of one of the private banks involved, IMG. The problem here, according to Daniel, was that there is no enforcement mechanism legally, no forum, no email address even for issues of concern of non-compliance with the Principles. CEDHA made the complaint anyway, with an assessment of all the interest groups around the bank, the board of directors, email addresses, relationship of bank to institutions. A complaint was sent to all these people, and strong outreach with the media followed. Two months later, IMG withdrew $ 480 million investment. If we had stuck to the codified human rights norms here, we never would have succeeded in this way. Sometimes, Daniel offered, we need to step out of the confines of legal or other comfortable advocacy to get results. He then described some "common errors" in designing human rights advocacy:
- Overreliance on binding systems
- Assumption that rules and laws alone drive decisions
- Assumption that reason and logic prevails
- Assumption that a court ruling will change things, or that judges influence corporation
- Underestimate political and economic drivers
- Presumption that a local conflict is visible outside, e.g. that the decision-makers in World Bank or other places know about local advocacy actions
Mapping actors, power relations, interest drivers (step beyond the actors we ordinarily interact with)
Actors are often far more interrelated than they seem
Identify governing regulatory frameworks (may not be legal strictly)/Legal obligations not always the most influential
Don't focus on one dimension of rights claims (with a pure focus on the environment, you miss out on e.g. access to info.)
State has a schizophrenic role (in both host and home governments) in these processes as both investment promoters and also human rights protectors. Often times a mistake is made thinking that state is thinking on human rights. In our case, the same office which was hearing our complaint, was promoting the investment-an inherent conflict.
Accountability is not always a formal or linear process
Use peer pressure and identify career paths of actors (our best influence is not always a good court ruling).
"CC the boss", competitors and colleagues when you personalize the conflict, copy their competition, need to target at times the personal networks of decision-makers.
Don't be led by lawyers confined to systems
Be bold in your assertions
Reject dominant definitional paradigms of legal interpretation (e.g. that states are the only subject of international law)
Policy reform results vs. community objectives
Don't fear unchartered territories (outside of what we know), e.g. define for yourself who is responsible, don't accept just what strict legal analysis implies
4. Export Credit Agencies: Opportunities they Afford for Accessing Justice for Human Rights Abuses, Karyn Keenan, Halifax Initiative, Canada
Karyn began with some background on ECAs, explaining that they are public entities, which give government-backed loans to support domestic exports and foreign investment, and guarantee insurance to their country companies. They are important because they are sources of significant public funding to the private sector. In 2005, for example, ECAs gave about $125 billion in loans, just within the OECD countries alone, to the private sector. China's ECA soon will become the world's largest public financial institution in 2010, with a $40 billion budget. ECAs have increased their business by 30% in last 12 months to respond to liquidity crisis, with a special call for increased co-financing to address crisis. They are also important because they cause significant human rights impacts, including support for investment in arms, in dams, mines, gas and petroleum with serious HR impacts.
These agencies are largely unknown and secretive, but there are a few potential, though quite limited advocacy avenues for redress, which Karyn described. Some ECAs contain non-binding review mechanisms (internal complaint mechanisms within ECAs which assess compliance with ECA's policies), though they are not very many. Generally these mechanisms can receive complaints from project-affected people, and in the Canadian ECA, it can receive also complaints from Canadian citizens, which can supposedly promote dispute resolution.
Karyn then went on to explain how these ECA non-binding review mechanisms operate, and their use. On the EDC, Canada's ECA, some problems include: it is lodged inside their own office and not independent; it is not being utilized and so has little experience with actual cases, the compliance officer can make recommendations in cases of non-compliance, but ECA has no obligation to follow up, and the process is slow, and non-transparent. On the Japanese ECA'S mechanism, the examiners are external, so there is more independence here, but the requirement that must first attempt to dialogue with company. Communities affected so far have not wanted to do this, and so there has never been a case presented. On OPIC, the US ECA, its mechanism is also housed within OPIC, reports to President, but no obligation for OPIC back any recommendations made, it also has just a few cases, there is a lack of resources, etc. These mechanisms in the end may be useful (if not for its results) to bring complaints for its use as material coming out of the process which can then be used for campaigning in other spaces. The key here, according to Karyn, is to keep expectations low here, and take advantage of whatever might result for other areas of advocacy.
Karyn then spoke on some interesting legal mechanisms for redress. One example was pointed to was judicial review, which is a process in which an ECA as part of state apparatus, can be sued if it fails to apply with domestic law, or its own policies-an administrative law procedures different in every country. This avenue is largely untested, except in the US and UK. In UK, civil society has decided that it wants to invest in bringing law suits in the mid and long term to seek clarifications of the law and change the law so that their ECA will be more accountable. They have been very strategic, focusing on strong cases with a very compelling fact scenario. Most cases have resulted in out of court settlements, so while they don't result in precedence, there are other valuable results, like the shame factor, embarrassing the UK gov't, accessed very valuable documentation for use in other things, legal victories have paved the way for other legal cases because they've set precedence on process-related issues, like who has standing to bring a case, etc. and these suits have brought policy reform. A number of related cases in the UK and US were then described in detail.
Another legal avenue could be civil litigation. Karyn explained that this would be very difficult, as ECAs can't sue them in their own country due to sovereign immunity, and there is a defense immunity usually on policy decisions. Beyond these avenues, regional courts, UN committees, other human rights bodies could be, but have not yet been tested.
There is also more concrete advocacy work to be done on ECAs, Karyn suggested. SRSG on Business and Human Rights John Ruggie has a renewed interest on some sort of international common standards on ECAs. Domestic policy reform with statute reform, and civil society review could potentially input here nicely. Also in the US, a re-authorization process of OPIC is ongoing, an amazing opportunity in which projects has to reapply every 3 years thus gives civil society opportunities to intervene relatively often. Issue and sector reviews also possible, in the extractive sector for example. Finally, ECAs themselves might be advocated in, at times.
5. Notable Comments Following Presentations
- Kenya participant for Aldo: The financial crisis calls us to rethink role of the state, the market plays a game with the state, the market using the state for its purposes, to discipline the market, creating a conflict between economic law and human rights law. There is an opportunity here possibly. Don't you think human rights advocates should support the idea of a developmental state/ "human rights state" to deal with market fundamentalism?
- Response from Aldo, CoC-It is a double-edged sword with regard to state and market interventions, especially considering the dual (and sometimes conflicting) role of state as the negative and positive duty-holder. The developmental state model is something I like, but at the same time in reality, and especially amongst groups who are more human rights oriented, it's important to point out that when calling for a strong state, we don't cede authority over as a blank check. A lot of people in this room might be in favor of using the IFIs to sometimes impose "positive conditionalities," which is a debate that has gone on for years. A new discourse has emerged now on mutual obligations. In the context of aid effectiveness, for example, donors say human rights policies necessary for aid granted, reviewing practices accordingly. Should these donor states have the power to impose conditions on human rights, which can have sometimes a role of legitimizing them in more nefarious areas these states might play, especially economic? We want the state to be freer to take a more re-distributive approach. This is not an easy dilemma.
Miloon Kothari, HRLN for Daniel-In your presentation, you expressed strong skepticism that it is the state who is ultimately responsible for human rights obligations, and that we shouldn't worry much about that. From one case can you make a generalization like this? The one handle we have as HR advocates is that the state is ultimately responsible, whether for controlling companies to general HR implementation. What was the reasoning?
Dora Lucy Arias, CAJAR, Colombia-With respect to state obligations, what options would exist in the Int'l Criminal Court to hold state and company executives to account for human rights violations?
Daniel, CEDHA-In our case, the community managed accessing a lot of channels which had been untested in terms of advocacy. These spaces tend to respond more to the formalities of process and complaints in their terms, which forced us to strategically enter into their world to disturb their world. Human rights advocacy in our case empowered the community to speak about rights, bringing in the social license to operate language. On responsibility of the state, my point is not to ignore holding the state accountable, but let's not use the interpretation of the state's duty to protect human rights as a reason for not pursuing other actors. On the ICC, my understanding looking at specific HR violations, like crimes against humanity, etc., in this case not a proper forum. But, the case is now at the International Court of Justice, which is being used to resolve a bilateral dispute, takes 5 years or so, is very conservative in its readings, and will unlikely favor the community in its result.
1. World Bank Inspection Panel and Other International Human Rights Mechanisms, Bret Thiele, COHRE, USA
If creatively utilized, the World Bank Inspection Panel can be used to remedy human rights violations, and to integrate human rights norms into World Bank policies. The project COHRE is working on in Accra, Ghana, began in early 1990s when UNDP drew up a plan for a landfill. It identified residential areas and said the landfill had to be far away from it. Nothing happened, and in the meantime residential areas were built up around the site. When the project was finally financed, it resulted in forced evictions of a community of 2000 families. We appealed to the Panel and at admissibility stage, the Panel said the Bank couldn't proceed without a proper resettlement plan. We ended up with an injunction on forced evictions. They also said resettlement plan had to be drawn up with the full and meaningful participation of community itself, which wasn't happening.
The other case to discuss is the Chixoy Dam in Guatemala, which was constructed in 1980s. The Rio Negro community, of 800 persons, was displaced to make way for the dam. The government entered into negotiations with the community and offered inadequate land for relocation [urban slum], which the community didn't accept. The government went in and killed many through a series of evictions to forcibly relocate the community. The dam was an Inter-American Bank (IAB) and World Bank initiative. World Bank and IAB provided funds before and after massacres. One massacres occurred with security guards using uniforms and construction truck from site.
When COHRE brought the case to the WB Inspection Panel to hold the Bank directly accountable for the violations, they really wanted to push the jurisprudence so that regional bodies could hold IGOs accountable for human rights violations. Also, the case was so egregious, and it dealt with negative obligations, making it a good test case. So we made an argument that states cannot get together in an IGO and use that organization as an agent to carry out human rights violations. Fortunately, the International Law Commission at the same time came up with provisional Guidelines for State Obligations Regarding IGOs. Essentially, when states act collectively they maintain the same obligations as when they are acting singly. An alternative argument was that at least with respect to the Bank, as an Agency of the UN, the Bank must abide by the UN Charter and purposes of Charter as found in Art. 55 and Art. 33.
Lessons learned from using the Panel
We filed our case and it moved quickly (four months for admissibility decision) - it is quicker than regional and international treaty bodies.
Engagement with the Inspection Panel should be used with a very good strategy where the advocates point at complicity of government in violations caused by the Bank, so the government can't use the bad reputation of the Bank against the community itself.
Shortfalls of using the Panel include: a weak remedy and potential of backlash.
Benefits to using the Panel are:
Remedies can be implemented; you can use the Bank's clout against the government, for example, when the Bank says no forced evictions, the Government has to comply because of power relations vis-a-vis the Bank.
It is a very fast mechanism and good when time is of the essence.
Possible to expand the jurisprudence. Even though the Panel is only mandated to adhere only to its own policies/procedures, people are making human rights arguments to educate the Panel about the State's human rights obligations that must be taken into consideration in any analysis.
2. Civil Society Intervention before ICSID: The Case of Suez v Argentina, Carolina Fairstein, CELS, Argentina
In 2001, Argentina experienced a social and economic crisis, which among other things, led to the government devaluation of the currency, then pegged to the US dollar, in which the value dropped by 4 times what it was from one day to the next. This came in the context of decades of the neoliberal economic model, which effect was to privatize almost all state enterprises. In this context of an increase in poverty that had never before been seen, where real wages had devalued by an average of 4 times, 5 million individuals dropped below the poverty line. The private companies were upset because they were not permitted to raise the prices of public services, as one of the first measures taken by the government was to freeze the rates. Many companies complained and brought the Argentine state to the ICSID Tribunal because Argentina, along with a majority of countries, had signed bilateral investment treaties, which have investment protection clauses that protect against expropriation and discrimination against foreign corporations.
Human rights advocates were almost obliged to oppose the increase in rates for public services, especially on water and sanitation as an essential service. These companies were pressuring the state in this international tribunal and were able to do so because the mechanism is not transparent. There had already been a lot of literature written on how these tribunals were being used by foreign companies to pressure the state to reform, thus obtaining certain favorable conditions. At the same time, the government, as a result of this crisis, entered into a number of contract renegotiations with companies at the local level. These renegotiations analyzed the structure of the contracts, and sought to eventually resolve the conflict mutually. This renegotiation process included a consultation and participation mechanism with the users. However, as the companies renegotiated at the local level, they also pressured the state through the international tribunal proceedings, which no one was able to monitor or participate in. Human rights advocates worried that if the Argentine government lost this case in ICSID, future regulation of the public services sector would be impacted, as there are now many private firms investing in this sector.
CELS decide to intervene in the ICSID process, which until then was almost completely closed and secretive. There had been one previous similar case regarding Bolivia in the arbitral process, and ICSID held that they could not accept a third party. Yet, they felt that Argentine civil society needed to be part of this process. In this context, they decided to present an amicus curiae, which other tribunals had accepted. They faced some strong reactions to this from Argentine public, who had been radicalized and argued that actions like this would legitimize the process, that CELS were friends of the Tribunal, etc.
Carolina argued that CELS went into the process with strong reasoning and argumentation about the fact and that this was not an ordinary trade or commercial case, but the public's interest and human rights were intimately at stake, and they had a lot to offer to the Tribunal and should be heard. She also noted that CELS had the need to position themselves differently than the state in the case. They criticized the structure and workings of ICSID, and also that it is part of the World Bank, and in their case another agency of the WB was one of the principal investors in the company, which brought the case to ICSID.
In May 2002, ICSID accepted that there was nothing in their bylaws which would prohibit them for accepting presentations by third parties as amicus curiae. This was an important precedent in this forum. ICSID also accepted CELS arguments that: the case could impact future regulatory efforts; that it was different because the public interest was concerned; and that the judgment could affect how the water and sanitation distribution system works, thus affecting people directly. CELS made a second presentation, explaining the need to integrate the interpretation of human rights law within the interpretation of secondary contract law afforded by the BITs. The case is still under consideration by the Tribunal.
3. Joining State and Civil Society Efforts Before the WTO - The Tires Case, Marcela Vieira, Conectas Direitos Humanos, Brazil
In 2007, the WTO took measures to restrict import of waste tires, on theory that accumulation of waste tires poses a public health risk and environmental health problem. Although generally retreading tires to extend their useful life is one way of addressing the waste tire problem, retreading tires leads to a problem for countries importing them because the waste tires have a shorter life and cannot be retreaded again. Despite all the environmental and health problems related to waste tires, in January 2006, the EU challenged Brazil's policy regarding the restrictions on retreaded tires. The EU had previously passed legislation prohibiting storage and disposal of used tires in landfills after July 2006. Because of this legislation, over 80,000 tires previously placed in Euro landfills each year would have to be put elsewhere. By exporting treaded tires to developing countries, it became clear the EU considered exportation a viable alternative to retreading tires within its own borders, and that EU intended to burden others with the harmful effects of its waste.
Brazil's response was a good example of how states and civil society can join to defend a state's interests. Since the case was related to human rights, the government reached out to human rights NGOs to get their support. The Brazilian government made all written submissions in the dispute publicly available in Portuguese and English (which is unusual with regard to WTO papers). In general, WTO dispute papers are secret and not transparent, especially in developing countries. Also, for the first time the government held meetings with civil society organizations (CSOs). By contrast, the EU which usually makes submissions public did not publish its submissions. Conectas and six other organizations submitted amicus to the WTO Inspection Panel regarding public health issues. This was the first time Brazilian organizations filed amicus in front of the WTO. The NGOs participation helped spur media coverage of case from environmental and public health perspectives in support of the government's position.
The WTO Panel and Appellate Body made a number of findings in support of the Brazilian government's rights to limit the importation of the tires. Specifically, the WTO found that the ban on retreaded tires would pass WTO examination, if implemented on a non-discriminatory basis. Panel also recognized that Brazil had the right to take into account other obligations and considerations in its trade negotiations. Therefore, government collaboration with CSOs represented a change in practice for what is traditionally considered one of the most closed of Brazilian government ministries. This decision helped open up Brazilian trade policy and as a result NGOs have greater access to government policy making.
4. Challenging EPAs in the National Courts, Louiza Karibu, Kenya Human Rights Commission, Kenya
Economic Partnership Agreements (EPA) are a new or envisioned trade agreement between African, Caribbean and Pacific states and the EU. Kenya is currently negotiating an EPA under the auspices of the East Africa Community. The thrust of the EPA is to liberalize all sectors of economy, in line with WTO rules on reciprocity and non-discrimination. The main aims are to promote sustainable development and to reduce poverty by sustained economic growth. CSOs in Kenya and Africa at large are working to stop these agreements.
Concerns with EPA's are:
- People mandated to negotiate the treaty on Kenya's behalf are paid by EU;
- Agreement will violate the right to work. What has been noted by a report commissioned by Ministry of Trade is that Kenyan organizations are vulnerable to unfair trade competition by the EU;
- EPAs also will violate right to food. Local products will experience decreased production. Example: maize product price is increasing; it will become worse if we implement the agreement, with the current EU agricultural subsidies (for example, EU spends 16 billion Euros on dairy subsidies alone);
- Increased dependence on food imports;
- We will also experience dumping on our markets of cheap imports;
- Revenue losses from decreased tariff revenues. We will use our traditional markets in COMESA region - 16.1 billion of Kenyan exports will be under threat;
- Loss of livelihood, especially in the agriculture and dairy sectors.
The Kenya Human Rights Commission in connection with Kenyan Small Scale Farmers Forum filed case in High Court under section 84(1) of the Constitution. We intend to attack the EPA on two fronts: 1) that EPA violates sections of constitution 70(a) - 71, 73, 75 (covering the right to life, slavery, dignity, property), and 2) that there was no effective civil society participation. With these cases, we want to compel the government to conduct a human rights impact assessment, or to acknowledge that the EPA will violate fundamental rights. We are also urging government to give CSOs an opportunity to effectively participate in negotiations. We are also seeking an order from the Kenyan Human Rights Commission (governmental body) to make available to the participants information about the agreement. Finally, in order for Kenyans to be able to effectively participate, we are asking that the government give Parliament a role to participate in negotiations.
5. Challenging TRIPS in the National Courts, Colin Gonsalves, Human Rights Law Network, India
The cases Colin highlighted were all based on Art. 21 (right to life) and Art. 14 (equality clause) of the Indian Constitution. He noted there is nothing special about these clauses - they are present in all constitutions across Africa and Asia, but that it is through this legal constitutional structure that judges put meat on bones. It could be a good strategy to use with activist judges willing to go out on the line. He then summarized some successful cases using this approach, two of which are highlighted below.
(1) Right to food case: One of largest class actions in world impacting 350 million people, and forcing government of India to spend millions of dollars, and sending government into economic turmoil. You can see the right to food orders on HRLN.org. One of the victims of the order was GAIN (conglomeration of EU and US micro-nutrient companies). HLRN was covert in getting an order against them without making them a party by getting an order against them from the Supreme Court requiring locally hot cooked meals in schools. The GAIN consortium didn't notice the order, then they noticed that you couldn't have a micro-nutrient enriched biscuit or lollypop hot cooked. Then there was a series of seven applications to set aside the order, but the court declined.
(2) Drug Case (drug prices). In 2006, government proposed to deregulate the pricing of drugs and mysteriously, an order of government came out to deregulate the prices of drugs, even those on the list of essential medicines. We did a bottom up approach - a HR grassroots approach - to hedge against the inevitable arguments that the policy violates WTO. We calculated how much medicine costs (what percent of income) compared with how much people earn, and demonstrated the impossibility of citizens to pay for drugs without price controls. The opposing argument was made that market forces will correct to reduce prices (WTOs argument). The CSOs came up with a study to show that with pharmaceutical companies, the market correction argument is a myth, because the highest selling drug is the highest priced. The case is pending, but they have an interim order for the moment (status quo maintained, i.e. no deregulation from 2006 to the present). The government had to explain how poor people could afford the drugs. Case was a sort of a success.
6. Graniti v. South Africa: A Multi-Pronged Strategy, Steve Kahanovitz, Legal Resources Center, South Africa
European-based investors in the South African mining industry have mounted international arbitration against the government alleging that the "black economic empowerment" (BEE) policy of the ANC government has violated mining contracts, leading to investors suffering damages and being denied equitable treatment. Shareholders of company are diverse (Italy) and other European States. The investors claim that they first invested in 1993, and now because of the change in regime after apartheid, are subject to new laws. They claim a change in regime constitutes a species of expropriation and violates just and the equal treatment provision. This was because there was a provision in the mining charter that 15% of holdings must be sold to historically disadvantaged South Africans within five years of charter, and 26% in 10 years.
South African civil society response has been muted, in part because so few people know details. If the corporation wins, it means that corporations can circumvent laws with trade agreements, cost the government millions and set precedent. South African lawyers are currently discussing possibilities and here is a list options that may be available. International organizations would also be welcome to submit amicus briefs.
(1) Amicus type application to go before arbitration panel. One problem of taking advantage of intervention is that NGOs have no access to documents. Looking at other arbitration decisions (which are not binding) is helpful on question of access to information. In one Tanzanian case, the arbitral tribunal allowed an NGO intervener to put in a 50 page written submission, with right of reply of both parties. Then parties could consult together, in absence of intervening party, and agree whether or not to engage in the amicus. Here, they responded they would engage with the amicus petition at end of oral submissions in absence of intervener. In the same matter, on the issue of documents, the amicus was not granted access on the following reasoning: (a) the dispute involved information in the public domain; (b) the arbitral tribunal read the rules to mean that if there was objection by one party, then no access would be allowed.
(2) Application made in domestic courts. This would be unusual because it would involve intervening in an international treaty dispute in national court. There is argument for standing that is wide enough to lodge dispute in court, depending on nature of action. It has been suggested that there are grounds to challenge the arbitral regime in South Africa. Specifically, in entering BIAs, government has done things in treaty that government is not entitled to do under international law.
Non-Legal Options that Might be Available:
- Civil society education process;
- Second intervention is political mobilization (trade unions);
- International solidarity (two other governments involved, including the Italian and Belgian/Luxembourg parties to BITs).
- There is question about extent to which there can be cooperation between CSOs and government, like example from Brazil.
7. Notable Comments Following Presentations
Legborsi Saro Pyagbara, MOSOP, Nigeria, asked Bret Thiele to clarify the World Bank Inspection Panel guidelines of procedure. Also with regard to the World Bank operational policy on indigenous peoples, can this be used as a tool in the Inspection Panel?
Bret's Response: The International Law Commission is drafting and provisionally adopting articles now on the responsibility of International Governmental Oorganizations (IGO). One of these define that states have international responsibilities for an internationally wrongful act of an IGO. Article 3 also defines an internationally wrongful act as an act which occurs when consisting of an action or omission is either attributable to the IGO under international law, or constitutes a breach of an international obligation. These essentially support our argument that states obligations remain within IGOs. In our case, we didn't rely on the indigenous operational policy, as we weren't dealing with an indigenous community, but we did rely on operational directive 4.30 on involuntary resettlement (and a bit on environmental issues), which includes consultation and compensation. The Inspection Panel has visited the community 3 times now to understand the issues. A good lesson on documentation is that this community has preserved every document and letter for the Bank's use, providing evidence of the threats of forced resettlement.
Unidentified Speaker with a question for Louiza Kabiru: Regarding negotiations of the community and the government, who makes the decision on relocation? Also, what is the Kenya Human Rights Commission doing to bring awareness on these important issues, so that they can learn and then support them in court?
Louiza's response: What can int'l organizations do? A coalition exists of Trocaire, Oxfam, Acord and others, which has been lobbying national and EU MPs to build awareness about this campaign. Local organizations are creating awareness through the Kenya trade network, and have been working closely with the Kenya Small Farmers Forum. ActionAid also works with small scale farmers. Beacon with religious leaders, this way we have been able to divide our work, each groups targeting and mobilizing different constituencies. But honestly, trade is a boring issue. When you invite people to a public forum on trade, very few people come, even at the height of the food crisis. It's been hard to sell the importance of the EPA case. We have been using media strategy, using advertisements in the newspaper, using images and programs on TV and radio.
Darci Frigo, Terra de Direitos, Brazil: It seems that common strategies of TNCs exist, as seen at least in Kenya, S. Africa and Brazil. Seeing these commonalities, how can ESCR-Net articulate itself and act to counteract them in the global arena, not only in particular national cases, but more broadly. Monsanto for example is in 80 countries, and affects food sovereignty and security in each of these places. If each of the countries continues just complaining, there will be no change. I don't want to disparage these legal mechanisms at all, they are very important, but how can we relate them to social movements, and an ESCR-Net campaign, for example. The problem of food sovereignty, climate change, TNC's activities all stand out as a frame within which we can think of local actions in relationship to, articulated in, a more amplified action. What do you all think of this in our actions as a Network?
Steve: On relocations, there have been striking legal developments. The S. African government has shifted drastically in the last 5 years for example. These shifts can be used much more creatively. Also, on Monsanto, we should be reminded of the importance of rigor in our work. In an amicus in S. Africa about Monsanto, which undoubtedly added value to the case, this led to a cost order on the filing party, which is very threatening. Also, more linkages with social movements and trade unions is also very important, for practical and other reasons.
Carin Smaller, IATP, Geneva: How to build larger strategies with movements behind the litigation is probably one of the key challenges we face in our future strategies. IATP's work in this context is primarily preventative, to stop agreements from being signed in the first place, whether Bilateral Investment Treaties (BITs), or multilateral/regional trade agreements. We need to figure out how to link the two struggles (preventative pre-treaty and restorative post-treaty). Trying to get governments to resist these agreements, we could really benefit from learning about your cases and strengthen the resistance arguments. With better linkages, we could better mobilize the movements and unions to support the litigation efforts. What Louiza is doing with the KHRC is probably the closest thing to that mix, linked to a massive stop EPA campaign, which has other Euro and African CSOs involved to resist these agreements, and then at the same time trying to bring cases to the court. We should really think in the next sessions how to make these linkages. I would love to see more work between the Adjudication, Trade and Corporate Accountability Working Groups.
Colin Gonsalves, HRLN, India: There is a view which equates internationalism with the UN system, and international legal strategies with the UN system and human rights regime, etc., While not undermining the importance of these institutions, I would say that in the developing world, there is a second and third strategy possible, which is equally, if not more important. The first thing is to look at and document the best practices of African courts and legal systems. From these, plan and strategize legal actions globally, but act in the local courts. I would say this is the most important contribution we could make as a Network, to actually work locally, strengthen capacities, enrich lawyers with similar experiences from all over the place. If we do another Monsanto case, we should coordinate and discuss well what the defense of Monsanto is to strengthen our arguments. Enriching capacities and strengths in local courts in my view eclipses by far in importance work in the UN. We want to use here an insurgent use of the law, using it in a very crafty way to get what we want for the working people. I think you can work out a legal strategy that is truly international. The other thing, there is a real possibility of prosecuting European companies in Europe. This strategy is not easily or well understood but there seems to be an enormous hope in this.
Daniel Taillant, CEDHA, Argentina: On the ICSID case, the arbitration panel will not consider international law and human rights obligations (unless the parties agree to do so), but rather look to the particular contract law of the company and the state. One interesting thing being debated now (and an interesting space to pressure) is that the UN, through its Special Representative John Ruggie, is considering the possibility of inserting social clauses into BITs, and this would give grounds upon which countries could defend themselves. On the World Bank Inspection Panel, in our case filed at the International Finance Corporation's Ombudsman (CAO), a sister compliance panel at the World Bank, one interesting thing we were able to do was in a parallel complaint to the Inter-American Commission on Human Rights (IACHR), we were able to get the CAO ombudsman to sit with the Commission Secretary at a Starbucks to have coffee together. This resulted in a formal submission of the audit which was against the investment, to the IACHR. This link of a non-binding, weak remedy panel with an obligations-based and binding forum with strong remedies is an interesting way to explore the future of accountability. Since that happened, we know that the IACHR has already made contact with the Inter-American Development Bank to gather information about cases which have engendered complaints within the Commission process. We should explore how to use this linkage between these types of bodies.
César Rodriguez, DeJusticia, Colombia had a question for Carolina Fairstein: We are fighting in Peru for social clauses in investment treaties, and we have mentioned the CELS case in Argentina and the threats to national protection of ICSID, should social clauses not be added. How influenced is the ICSID process by human rights arguments?
Carolina's response: This tribunal is not influenced so much by human rights arguments, though individual members of the tribunal may have been. We were more influential, however, in pointing out the strong conflict of interest within the World Bank because of the consequences of their policy of privatization and as stockholders in the company which was making the claim.
1. Introduction of the Strategy Session, Areli Sandoval, DESCA-Equipo Pueblo, Mexico
Areli introduced this first strategy session, which aims to identify common goals, discuss the application of the lessons-learned, and build consensus on specific points of action as a plan for the years ahead.
2. Notable Comments from Discussion
- Aldo: What is the value-added of ESCR-Net in the bigger picture of our advocacy, as laid out in the strategy paper? Some ideas proposed so far:
- Bottom-up approach to trade, investment and finance: Need to bring grassroots groups on the ground into international talks and fora which are often isolated from issues and cases on the ground.
- A conference call on organizing our efforts to face the financial crisis to push steps forward, to help build the community and share the burden.
- Michelle Kagari, AI Africa-She was supportive of a bottom-up approach, but concerned at the same time that there are opportunities that exist now at the global level which need attention quickly, particularly the global financial crisis. Where is the voice of the human rights community here? We don't want to miss this opportunity by focusing only on a bottom-up approach. Climate change is another opportunity which could be missed. My assessment is that both of these issues are being resolved without us, and if we take a bottom-up approach, we could miss the boat altogether. Also, funding is a real challenge as well, and we don't want to come up with strategies that cannot ever be attained.
- Areli-The Secretariat, with contributions from us, could compile a map or calendar to coordinate the main events and important processes taking place in advance to aid coordination and prepare advocacy at these important events. There are many inter-related processes, but we need it to be compiled to prepare in advance as a group as individual groups don't have the time to read human rights through this.
3. Other Key Ideas from Discussion
Need to move from reacting to setting global agenda or at least proposing more constructive alternative agreements, systems, mechanisms
Need for more broad-based social mobilization in this area - linking NGOs and social movements, as well as doing outreach, education, awareness-raising, training and building toward joint advocacy.
Need to use the existing Special Procedures and SRs more and find creative ways of using them in the trade and investment systems, even if not recognized formal space
Possibility of joint strategizing on how to better use the democratic clauses in FTAs (no mechanism for applying them now).
Need more targeted use of information-exchange through the listservs and with the WG
Explore greater use of and advocacy in regional mechanisms, for example, in 2008, African Commission adopted position on access to medicines.
Maximize opportunities presented by the financial crisis, and use this period to do learning and preparation for longer-term work on financial system reform
Look at advances made at the WHO related to trade policies and explore ways of bringing them into WTO negotiations
Work with trade ministries at national level to change position of government re: trade and finance policies vis-à-vis human rights
Create map of what groups are working on and what is coming up, so can see connections, opportunities to extend the work, amplify it, fill gaps.
1. Introduction of the Strategy Session, Aldo Caliari, Center of Concern, USA
The main objective of the session was to come up with a strategy outlining what each member would want to see this working group and the Network to do, which was tracked and will be built into an action plan. Participants were reminded that in reaching these objectives, the capacity of the Secretariat will remain the same. It will play a supportive role, but members must take up leadership.
2. Notable Comments from Discussion
Anni, SEACON-There is need for guidelines, or policy on the roles of governments and corporations in negotiating a particular investment. That is, we'd want to see what is the human rights responsibility of the government and that of the corporation. For example, if people are displaced and what the corporations will have to do other than just compensate the affected people, for example.
Zoe, 3D-We should take advantage of already existing tools, like those of Rights and Democracy.
Hector, ILSA, Colombia-ILSA has been working at two different levels: At the domestic level on FTAs, we have developed various actions in Colombia around the US and EU trade agreements, mobilizations along with legal actions. We brought a case for example against the US FTA in front of the Constitutional Court of Colombia. At the int'l level, we are also developing actions on the relationship between international human rights law and international commercial /trade law, seeing the primacy of human rights law here. So, the emphasis in the Network should be in international actions, not national ones, with the assumption that each one of us is working at the national levels.
Katrin, FIAN Int'l-From FIAN, the most important role is information exchange, as we get active only once there is a case of violations. We need to be aware of these violations at the national level to then be able to support them. A more coordinated and targeted use of the list-serve is needed, especially in support of ongoing or developing cases, and to exchange information and strategies about them.
Michelle, AI-For right now at least, the most useful service is also information exchange, knowing who the actors are, knowing who is dealing directly with IFIs, who is dealing with the BRIC countries in their investment, etc. This will help us to later actualize our strategy in this field. Another urgent item is that ESCR-Net could come out with another statement on the financial crisis, or at least explore the possibilities for developing common positions on this from, explaining that the current situation is unacceptable from a human rights perspective because currently the states are completely de-regulated, especially developing from a commonly-signed letter. AI would lend our name to this, for sure. Expanding the space for members to sign up to positions is very important, even if ESCR-Net can't as a collective. Sharing experiences (and seeing commonalities) is only a start, but could evolve into a campaign or other activity.
Zoe-This should be an absolute priority. We should make a statement at the end of the day about the financial crisis in fact, according to Radhika's idea. If not now, in the next months we must prioritize this somehow.
Aldo-There is a Commission on the Financial Crisis of the GA, we should make a statement there, and follow-up.
Carin, IATP-There are already so many groups and so many of their own campaigns ongoing, and can be very difficult. This sort of macro-level view of the trade, investment and finance scheme could instead provide more tools and orientation, but one specific campaign would be tough in such a large area.
Aldo-It would be a bit tricky for the working group at this point to endorse a campaign at the present but Hector and his organization could take the lead role and present a proposal as the idea develops.
Priti, PWESCR, South Asia-We should consider reaching out to the women and livelihood caucus at the WSF, who are committed to bringing human rights framework into trade talks.
Karyn, Halifax Initiative-The Working Group might consider the SRSG John Ruggie approach, there is some utility in engaging with him. Her organization has engaged with him with regard to Export Credit Agencies and Human Rights, and Ruggie has been helpful in bringing this issue to the forefront. But he is not talking about other IFIs, and regional MDBs. The WB is the de facto standard-setter for int'l standards of finance and trade, and completely ignores human rights norms. No one is pressuring Ruggie to focus on other IFIs. His main undoing is his failure to bring the civil society and the World Bank, regional development banks, etc. about their role here. It's up to the working group and the network to force him to address this issue as part of his mandate. If the Network got involved and demanded for a debating space on this issue, there would be an enormous impact. We need to bring to the table the larger role of these and other financial institutions in promoting and supporting corporate activity. We can't let Ruggie avoid this bigger picture, while focusing one particular mechanism or project within the IFC that he likes.
Deborah Scott-ACORD-My organization have been working closely on the economic EPA negotiations, and now we want to look at the regional bodies in Africa, especially those that affect the right to food.
Hector-ILSA has worked extensively on regional integration in South America, and the main barrier in sharing these experiences is language, but ILSA will attempt to translate these documents and provide them to members of the Working Group.
Carin-On ESCR Caselaw database, but there has also been a tremendous amount of work done recently on case studies, not legal cases, from FIAN and the FAO. Could we explore a centralized case-study database or impact assessment database collecting our work showing how FTAs, WTO agreements or liberalization policies in general have led to human rights violations, and whether these case studies could begin coming a source of argument and documentation? Also, we could also use just a list of key human rights targets, so we could be doing more lobbying with them.
1. Introduction of the Strategy Session, Malcolm Langford, Norwegian Center for Human Rights and Hakijamii, Norway
Three concrete ideas for joint action arose out of Session 5 of Adjudication:
a. Exchange of strategies on domestic or international cases against FTAs (e.g. Colombia and Kenya)
b. New land for food lease agreements between Asian and African countries, or UK and Africa
c. Collectively take on Monsanto in various jurisdictions
2. Notable comments from discussion
Aldo-Best role we can play to feed into the Adjudication group's efforts by providing some of the political analysis given certain ongoing negotiations to keep in mind to support strategic litigation, and/or developing theoretical grounds on policy issues which might need to be addressed in certain ESCR litigation. Government has signed many contracts that don't take into consideration human rights obligations. The government does not consider different interest in these contracts. How can we address this situation - is it at the level of campaign or litigation? How can we situate it?
Carin-One area in which there could be much synergy between WGs is in the need to do significant evidence gathering, through SR missions, or a FIAN mission fact-finding mission to Madagascar almost immediately, and what the impacts in this case are with regard to the right to food. The case study based on empirical evidence as well as advocacy work with local officials, could help determine the potentials for litigation or other type action.
Zoe-I want to add also is that another place we can bring this up is that both Korea and Madagascar are coming up in review in May at the ICESCR session. A huge opportunity.
Kali, US Human Rights Network-Related precedents on environmental justice and nuclear dumping cases/struggles from Africa could be a good source, both regarding state and non-state actors.
Malcolm-Interesting that there is a range of actors in this process. Given that there are European entities involved, there is the possibility for transnational litigation in Europe. Continental Europe has the easiest system to access the courts (no forum non conveniens), so the potentials are strong. We could also look at OECD complaints.
Malcolm-Does the trade and investment group have any ideas on how to move strategically on this? 3D has decided to work on this issue already, especially on the Daewoo land lease case, in May. Could we meet work together to prepare for this, and meet again in Geneva in May for a two day session to look at evidence and see what we could do?
Aoife-What cases are being considered for the ETO Consortium? - they might be of strategic interest.
Katrin-There is a report of the consortium, which is online on www.fian.org. The cases are from many cases: (1) BIT case between Paraguay and Germany; (2) another case based on same BIT that went to IACHR; (3) Pulp Mill Case in Uruguay that Daniel Taillant introduced; (4) EPA Kenyan case with Kenyan Human Rights Commission. FIAN would be interested in working on a case study on the Daewoo case in Madagascar.
Zoe-The previous SP on the Right to Food was supposed to follow up on right to food in Madagascar, and the current one should look into this.
Carin-We need a multi-pronged strategy here. We should add focus from SRs on food and housing who could consider an urgent mission there.
Malcolm-On the BIT and FTA cases, it is important to continue working together and to link the two groups. I just realized speaking with Cesar at DeJusticia that a case was brought in the constitutional court there on the US-Colombia FTA, and a pronouncement was received which ensured that this agreements will be interpreted according the Colombia Constitution, which is precisely what we are thinking on the South Africa case. There is also a clear link to the Paraguay-Germany case. It's very important to link the two groups, to continue to share strategies and amicus submissions, and we have also been considering an enforcement case.