Glocal Canvas

"Stateless Actors" and Human Rights

2008-12-04T09:10:00.002+08:00

While reacting to the allegation of the Indian government of the involvement of Pakistani elements in recent terrorist attacks in Mumbai, the President of Pakistan Mr Asif Ali Zardari said that “stateless actors” rather than the Pakistan government might have been involved in these acts. This is an honest admission of the reality – the reality that terrorist organisations (TOs) might exist independent of states and have an identity different from states. Although TOs operate from the territorial boundaries of a state, they are stateless entities in that they do operate at a transnational level without being inhibited by artificial boundaries of states. TOs are stateless also because they generally do not have affinity to states: neither are they registered as a legal entity not do they pay taxes to governments. In addition, even if certain TOs have “state linkages”, such links are not permanent and their actions could not always be controlled by, or driven to suit the national interest of, such states.

Here one issue that we should consider is: how do TOs as non-state actors compare with other non-state actors? As I wrote (in a piece entitled “From 3/12 to 9/11”) more than four years ago, we should juxtapose TOs with MNCs because these two non-state actors represent an increasing threat to the realisation of human rights worldwide. This is so because not only the conventional human rights framework is predominantly state-centric but also because on occasions states itself start acting in connivance with MNCs and/or terrorists to suit their myopic interests.

Of course, there are many differences between TOs and MNCs. Nevertheless, they do share some common characteristics. An understanding of these commonalities between TOs and MNCs might be useful to gain insights into the kinds of regulatory challenges that these two non-state actors pose to both national and international regimes. Consider, for example, the following:

1) Both MNCs and TOs are driven by a dominant, often also sole, motive and they are not generally tuned to balance other considerations with that motive. With a few possible exceptions, MNCs and terrorists are primarily motivated by ‘just profit’ (not just profit) and ‘violence for a cause’ (irrespective of whether the given cause is right, just, moral, legitimate or not), respectively.

2) As mentioned above, both MNCs and TOs hardly feel inhibited by geographical boundaries; they operate at a transnational level and could move from one state to another with ease.

3) Like MNCs, TOs also have a structure and line of command seen between the parent corporation and subsidiaries of a corporate group.

4) Both TOs and MNCs can change their names and appearances in order to bypass the legal process. They could also disappear (including by merger or acquisition) and then take rebirth, if necessary.

5) TOs and MNCs employ latest/innovative technology to their advantage. Various technologies, in fact, enable them to operate globally.

6) Both these non-state actors operate with the active or tacit support of states. In fact, on occasions states might use them to fulfill their foreign policy or national goals.

7) Last but not least, TOs as well as MNCs could leave victims of human rights abuses without an effective remedy because often alleged violators are outside the territory/jurisdiction of the victims’ state.

So, how should we regulate TOs and MNCs? Experience to date has shown that neither states nor state-focal institutions alone can effectively regulate the activities of non-state actors such as TOs and MNCs, for the simple reason that these are stateless entities. Moreover, states do not always respond to instances of violations of human rights by TOs and MNCs in the same way – for instance, it usually matters who were the victims of such violations. Therefore, the sooner the international community realises the limitations of a state-centric regulatory model, the better it would be for the realisation of human rights in the times to come.

Stakeholders Include Shareholders, Mr Kamp!

2008-07-18T12:22:00.004+08:00

Now a days it is quite common to talk about concepts such as "stakeholders" and "corporate social responsibility (CSR)". However, the criticism that these concepts has received historically is often misinformed. For example, in the famous Berle-Dodd debate, Professor Berle suggested that CSR might make the corporate management absolute. As we know, this proved baseless, for the contention was unsound. Similarly uninformed were the arguments of Milton Friedman that corporations would in effect be imposing "tax" on stockholders if they pursued CSR policies, or that CSR was a Marxist/socialist tool to undermine free market economy and capitalism.

The recent Monitor column of Jake van der Kamp in South China Morning Post ("Airport returns just flights of fancy for taxpayers?", 27 June 2008) is a telling example of this continued misinformed critique of stakeholders and/or CSR. By referring to the "Dear Stakeholders" opening address of the Chairman of the Hong Kong Airport Authority in the Annual Report of the Authority, the author suggested as if the Chairman was "responsible to the customers, the emplyees and the suppliers, but not to you [shareholders]". However, stakeholders do include shareholders. As per a seminal definition offered by Freeman, a stakeholders is who "can affect or is affected by the achievements of the organisation's objectives". So, the responsibility to stakeholders does not exclude responsibility to shareholders.

Perhaps, Mr Kamp might not have made such an erroneous assertion had he read carefully the very first paragraph of the chairman's statement, wherein it was mentioned that out of the profit amount of HK$2.3 billion, "HK$2 billion will be returned to our shareholders".

It is also not appropriate to suggest that only shareholders contribute to the success of a company. Let us take the case of Airport Authority itself. Is the Hong Kong airport one of the best merely because of its shareholders (the HKSAR government)? I doubt if this is the case, because saying so greatly discounts the role that other stakeholders such as employees, suppliers, contractors and travellers play in making the airport what it is.

“If today you don’t work hard at your job, tomorrow you will work hard on finding a job.”

2007-08-01T17:23:00.000+08:00

This is not an advice from an employment consultant or a human resources manager, but the message on a banner placed in one of the canteens of a factory in the town of Zhongshan (Guangdong, China). As reported by Justin Jin in a news item published in the South China Morning Post on 30 July 2007, thousands of workers work 18 hours a day to scrub jeans to give them a “vintage” look.

What reasonability do we – as consumers – have towards such workers who produce goods in inhumane conditions? If there is a case for responsibility, what is the extent and ambit of such responsibility? I think that every person has a responsibility (of varying level) to contribute to the project of human rights realisation. It is not merely the business of states and/or corporations to ensure that human rights, say, of workers are not abridged simply because they have lesser bargaining power. If by exercising buying preferences in a particular way, one could make a positive difference, then one should try to do so. Talking a walk on this road would not, however, be very easy or straightforward. For example, boycotting a product produced in inhumane conditions might render many workers in developing unemployed, or there could be cost-related issues. So, there are trade offs to be made, but still consumers – both individually and collectively – have a moral responsibility to factor in human rights and environmental considerations while buying products.

One most important precondition for such consumer activism is a free flow of information, something that would have to strengthened.

Haneef’s Case: An Instance of Reckless Use of Anti-terrorist Laws and Abuse of Process

2007-07-26T20:07:00.000+08:00

Dr Mohamed Haneef, an Indian doctor working in Brisbane, was recently charged under the Australian laws for “recklessly” providing support to a terrorist organisation. The gravemen of the charge is that he left his SIM card with unused credit with his cousins in England who have been charged for smashing a jeep into the Glasgow airport. For details and background facts, one might refer to the Wikipedia entry or The Australian.

After remaining in police custody for almost two weeks without any charge, a magistrate released Haneef on bail because the prosecution could not provide credible evidence of a direct link between Haneef and a terrorist organisation. The case took an interesting twist when hours after his release on bail, the Australian Immigration Minister Kevin Andrews cancelled Haneef’s visa on the ground of failing the “character test” under the Migration Act.

The whole saga raises, at least, two sets of questions. First, are states – in their over-zeal to win the war against terrorism – invoking anti-terrorist laws (some of which are inhumane in nature) somewhat recklessly and for purposes other than the intended ones? More importantly, is this approach going to prove counterproductive in containing terrorism?

Second, was the cancellation of visa by the Minister an instance of colourable exercise of power in that the Minister tried to do something what the government could not do directly, that is, keeping Haneef behind bars? Moreover, does it amount to interference with the judicial process?

My short response to all the above questions is, yes. For a slightly longer response, see my piece posted at On Line Opinion.

Towards Privatisation of Affirmative Action in India

2007-07-20T18:06:00.000+08:00

One of the key issues concerning the realisation of human rights, in my view, is: could corporations (and other private sector organisations) be made to join hands with states and civil society organs in accomplishing this project? I explored elsewhere this issue with reference to the constitutional provisions in India. It seem that there is a growing realisation that unless corporations take on board the constitutional mandate of human rights protection, the ever-expanding scope of fundamental rights in India would not go far.

One context in which this issue has become more apparent is the affirmative action provisions under the Indian Constitution. For sometime now, discussions are taking place if these affirmative action provisions should be extended, by amending the Constitution and/or by enacting a law, to apply to the private sector. On 24 may 2007, while addressing the annual general meeting of the Confederation of Indian Industry (CII), the Indian Prime Minister Dr Manmohan Singh launched a Ten-Point Social Charter for a more inclusive growth. The Point Three of the Charter deals with the role of private sector vis-à-vis affirmative action: “… industry must be pro-active in offering employment to the less privileged, at all levels of the job ladder. The representation companies give to Scheduled Castes, Scheduled Tribes, other Backward Classes, Minorities and Women, in their workforce and staff must increase.”

CII has also released a Report on Affirmative Action and has formulated a voluntary Code of Conduct to be followed by member companies. The Report outlines several laudable concrete steps that CII seeks to take. However, at the same time the Report puts on record the opposition to “any legislation that would compromise the sanctity of its non-negotiable freedom of choice in employment”. CII is also gathering data in relation to the employment of Scheduled Castes (SCs) and Scheduled Tribes (STs). Many leading companies have already started institutionalising the policy of affirmative action and include this in their annual reports.

Although I expect the road to privatisation of affirmative action in India to be bumpy, it is likely that no roll back would be possible as long as we live in the era of corporate raj.

Starbucks Forbidden from the Forbidden City!

2007-07-17T17:58:00.000+08:00

After operating in China’s Forbidden City – a World Heritage site (and a great tourist site) – for seven years, Starbucks has decided to close its shop rather than doing business under a different brand name. From the very beginning Starbucks had faced protests from local people/authorities/visitors on the ground of “trampling” the Chinese culture. In response, Starbucks tried to be sensitive to these concerns and removed “its eye-catching white-black-and-green logo from the Forbidden City outlet”. However, this did not completely satisfy everyone. Now probably even Starbuck thought that enough is enough; after all, MNCs knows very well “what is in a name”.

MNCs often face the business dilemma similar to one that Starbucks faced in the instant case. More often that not, MNCs have to adjust their business operations in view of local social, economic, cultural or political variables. From the corporate social responsibility (CSR) perspective, the critical issue is: when do such adjustments become legally and/or morally indefensible? In other words, should Starbucks have agreed to operate inside the Forbidden City under a Chinese brand name? What was the social responsibility of Starbucks under the given circumstances? It seems that as the management of the Forbidden City was within its right to lay down rules for operating commercial ventures, Starbucks also has a right to refuse to operate under conditions which might compromise its brand name or identity. Starbucks did not behave in socially irresponsible (or unresponsive) manner by refusing to do business under a different name; in fact, the opposite might be true.

Of course, the situation might be different if Starbucks sells not coffee etc., but is the only company to sell certain life saving drugs within the Forbidden City. Then perhaps an argument could be made that such a company should continue to supply drugs without insisting on its brand name as long as it could use its name in shops outside the Forbidden City.

Internet’s Influence on Muslim Personal Law

2007-07-11T13:41:00.000+08:00

A recent pronouncement, in India, relating to the validity of a Nikah (a Muslim marriage) solemnised online once again attests to the pervasive power of Internet. As reported by The Times of India, the Darul Uloom, Deoband pronounced that “a marriage solemnised in the bodily absence of a party with the help of the Internet, is acceptable if the proceedings take place in presence of two witnesses.” Maulana Khalid Safiullah Rehmani, the Chairman of Islamic Council of India, explained the rationale behind this ruling as follows: “In such a marriage, Internet is assigned the role of a vakil who is authorised to formally receive Ijaab aur Qubool (offer and acceptance) made by both parties.”

People familiar with the law of contract might see that the reasoning of Maulana sits well with the observation of Thesiger L J in Household Fire Insurance Co. v Grant (1879) 4 Ex.D. 216, wherein he saw “no better mode than that of treating the post office as the agent” of both contracting parties. Since marriage is a contract under Muslim law and Internet is now widely accepted as a medium of entering into contracts, the Internet Nikah pronouncement might look as a logical conclusion. Nevertheless, one should keep in mind how this ruling modifies what is regarded by many as a highly conservative personal law which discriminates against women.

It is clear, however, that this interpretation does not dispense with the requirement of two witnesses which are required to be present for a valid Nikah under the Sunni law. This then raises the question where should these “two” witnesses be present assuming that the bride and groom are based in two different cities (or even continents)? It is worth considering if one witness each at both the locations should satisfy the requirement. This would also probably help in resolving the potential disputes that might arise in online marriages.

Finally, it is worth investigating if this legitimisation of Internet Nikahs is going to work for or against the Muslim women generally.

Nice to be Back!

2007-07-10T13:25:00.000+08:00

After one year, I am back again! Hope to comment on issues of my interests more frequently in future as the doctoral thesis - which occupied most of my time during these twelve months - as well as the post-thesis relaxation is over now.

Doing Charity by Killing People: The James Hardie Way

2006-06-30T00:37:00.000+08:00

The Guardian’s columnist Simon Jenkins has declared 21st century to be “the age of charity”. This optimism seems to have been triggered partly by the unprecedented courage and leadership shown by Warren Buffett, the world’s second richest man, to donate to charities 80 per cent of his wealth. However, the age of charity may not turn out to be an unqualified good, for 21st century might also see totally uncharitable activities being passed on as charity.

Take, for example, the case of James Hardie. To sum up the saga, several companies of the James Hardie Group manufactured and distributed asbestos products in Australia for several decades in the 20th century. These products led to deaths and prolonged illness, and consequent fears of unknown liability. In order to limit (and to some extent preempt liability), James Hardie restructured its business and established a trust fund to compensate victims of asbestos-related diseases. The under-funding of the trust culminated in the Jackson Inquiry. Finally, in view of a robust naming and shaming campaign run by the asbestos victims groups and ACTU, Hardie accepted its ‘moral’ responsibility towards the victims and signed a Final Funding Agreement on 1 December 2005. A Special Purpose Fund (SPF), which will be making compensation payments over a period of at least 40 years, was established under the agreement. This funding agreement was, however, subject to several key pre-conditions. One of the pre-conditions was a tax exemption of the SPF as well as James Hardie’s contributions to it under the Australian tax law.

Recently, the Australian Taxation Office ruled that the SPF is not entitled to the tax exemption as a charity. But it agreed to treat Hardie’s annual contribution to SPF tax exempt under a revised “blackhole expenditure” law enacted in April 2006. James Hardie as well as other stakeholders reacted strongly to the first ruing of the taxation office. Hardie immediately asserted that no-grant of a charity status to SPF would undermine the viability of SPF. Victims group, on the other hand, felt disappointed and considered such ruling as ‘obnoxious’.

Leaving aside what law considers as a charitable activity for taxation purposes and why, are we not going too far in labeling James Hardie’s creation (SPF) and action (contributions) as charity? Knowingly exposing workers and others to asbestos hazards, restructuring and under-funding the trust fund, and then fleeing out of the reach of victims’ legal mechanism are not, if at all, healthy symptoms of a charitable deed. What people should be getting as rightful entitlements (but for an infirmity in law) is presented to them as a token of compassionate charity. Are there no sustainable differences between what many corporations did in the aftermath of the Tsunami and Hurricane Katrina on the one hand and what James Hardie is proposing to do for the asbestos victims? One could find commonalties between the two scenarios, but there are fundamental differences too. Owning responsibility and paying for one’s wrongs does not and should not become a charity merely because of legal loopholes. This is a difference too obvious to be ignored.

Liability for abetting triple suicide at Guantanamo Bay

2006-06-18T01:55:00.000+08:00

The triple suicide at Guantanamo Bay has been interpreted variously. Whereas the camp commander Rear Admiral Harry Harris considered the triple suicide as "an act of asymmetrical warfare waged against us", Colleen Graffy, deputy Assistant Secretary of State for Public Diplomacy, has seen them as a "PR move" to further the jihadi cause. Others have disagreed and interpreted suicides as an act of despair. To date, the US – the self-proclaimed messiah of human rights – has ignored almost unanimous pleas to close this legal blackhole. The only ray of hope is the much-awaited judgment of the US Supreme Court in Hamdan v Rumsfeld. In anticipation of this decision, even Bush seems to be softening his stance on the issue.

The circumstances under which attempts to commit suicide succeeded this time will be the subject matter of a military investigation. But this investigation is unlikely to explore whether the camp commanders and higher up administration could be held responsible for abetting these suicides. I think a case could be made out.

The prison authorities are under a duty of care towards all the Guantanamo Bay detainees, even if they are labelled as enemy combatants. In view of well-known harsh confinement conditions (such as solitary confinement, denial of due process and Geneva Conventions protections, almost no hope of being released) and several past unsuccessful suicide attempts, the camp commanders should have reasonably foreseen the possibility of these suicides. Arguably, the prison administration did not desire, intend, or provide active assistance in the triple suicide, but they knowingly created and sustained an environment which facilitated these suicides. A (legal) case for abetting suicides do exist, which might not be as tenuous as one was sought to be made in Jack McColum v CBS Inc. 202 Cal. App. 3d 989 (1988). [In McColum, the family of a teenager, who committed suicide while listening to certain recorded music, had unsuccessfully sued the composer, performer and producer of the music for negligence and encouraging the suicide through their music.]

Cost of crossing the line

2006-06-17T23:34:00.000+08:00

Just a quick update on the controversial internet poll run on a radio show. The Hong Kong Broadcasting Authority has directed Commercial Radio to offer a public apology and pay a fine of HK$140,000. On its own, Commercial Radio has also introduced an additional layer of in-house monitoring of its programs.

The other side of the story is that many Hong Kong students (according to a report about 20,000) have come out in support of the two radio hosts in an online forum. So, for some the internet poll that asked listeners to vote for the most popular artist for indecent assault was OK. Also consider that sexual harassment – as Ms Atty Ching Tsui-wan, the Director of TeenAids, pointed out at a recent conference – in Hong Kong schools is becoming more frequent in recent years. Do you see a connection?

Freedom amidst secrecy!

2006-06-14T12:53:00.000+08:00

Like the November 2003 secret-surprise visit, the recent visit of President Bush to Baghdad (not to Iraq!) was shrouded in secrecy. If one of world's most powerful person could not enter and visit Iraq freely, can one legitimately claim ordinary Iraqis to be living a life free from tyranny?

On a more general level, many things have changed since November 2003, but certainly not the two: the security situation in Iraq, and Bush’s rhetoric regarding his Project on Freedom and Democracy (PROFAD). One should not though be much surprised by this secrecy, because the PROFAD has been linked with the “war on terror”. And secrecy has been central to the US “war on terror” and is well-documented – from unilateral aggression, to memo to disregard the Geneva Conventions, Guantanamo Bay (including its military tribunals), Abu Ghraib, outsourcing of torture, suppression of military and civilian causalities, domestic spying, and lucrative contracts to Halliburton. Therefore, the task of selectively accomplishing the PROFAD is rooted in secrecy.

The world needs to unmask soon how secrecy could become central to the PROFAD.

From “most sexist female” artist to …?

2006-06-12T21:08:00.000+08:00

Although I did not hope to open Glocal Canvas with this kind of post, the issue was too compelling to ignore.

In Hong Kong, Sammy Leung Chi-kin and Kitty Yuen Siu-yee host Commercial Radio 2’s So Fab radio show. On Friday, 2 June 2005, they launched an internet poll on their show asking listeners to vote for “the most popular singer/actress for indecent assault”. In view of a public outcry, the title of the poll on Sunday was changed to “the sexist Hong Kong female artist”, for the former poll was considered insulting and degrading to women. [South China Morning Post, 6 June 2006] Perhaps, the original poll also fell foul for abetting a criminal activity. Now the two hosts have offered an apology, and the Commercial Radio has suspended the popular duo (sent on no-pay leave!) as well as their program for two months. The issue will also be investigated, among others, by the Broadcasting Authority.

Nevertheless, this controversy showcases the prevalent attitude towards women even in a free-developed society like Hong Kong. By changing the poll title, we are made to believe that naming sexist women would be perfectly consistent with showing respect to women. But this may not be the case. To a great majority of populace, especially in developed societies, the term ‘sexy’ – which as per the Oxford Dictionary (2nd edn, 1989), ‘sexy’ means “sexually attractive or provocative, sexually exciting” – no longer rings any alarm bell. However, this term too is an instrument of women subjection (just do a Google search of the term ‘sexy’ to find this out). After all, why would males fancy and find sexy some female artist more than others? It may not merely be because of their appreciation for nature’s beauty. In the guise of bringing freedom and empowerment to women, constructs such as ‘sexy’ incrementally results in nothing by male dominance. It is a vicious circle aimed at undermining the dignity of women: first women are made to outclass each other in a race for infinite sexiness and then they are made a commodity for sexual and other exploitations. For example, do not some still suggest that ‘she’ invited rape or indecent asault by (not) wearing a particular kind of clothes or by behaving in a particular way?

My fears are that as ‘sexy’ has been made to appear an innocuous adjective now, in future even voting for a woman whom one would like most to indecently assault might be considered appropriate and acceptable (after all, the named women should take pride and feel powerful for being such a desirable person!) The critical point is not the social or lingistic change, but who are benefitting by such change.