Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China

Abstract

From the middle of the last century, socio-economic rights have been bound up in the ideology of the state within national legal orders and through the construction of an important edifice of public international law and institutions. Globalization may be changing both the focus and locus of socio-economic rights, adding a private sector dimension to what had been an almost purely public institution project. The state and public international organizations have been making room for the multinational corporation and global civil society. In lieu of a hierarchically arranged global system of public power managing socio-economic rights, governance fracture and polycentricism have complicated the regulatory landscape, making it sometimes harder to see where public law ends and private affairs begin. This study examines the ways in which the development of socio-economic rights has moved beyond the state in two of the most important emerging free market economies — China and India. After introducing the current formal division of human rights between political and civil rights (a focus of the Global North discourse) and social and economic rights (a focus of Global South discourse), Part II of this Article briefly focuses on the way in which social and economic rights are understood within India and China. Part III then considers two case studies as a means of structuring discussion; the first from India, involving two large multinational enterprises and the rights-based approach; the second from China, involving the development of complex administrative and rules-based private corporate social responsibility (CSR) codes of conduct. Part IV concludes with some general observations about globalization, privatization, and the advancement of human rights regimes. In China, privatization is grounded in state obligation, administrative approaches, and private rule systems. In India, privatization is grounded in individual rights-based and civil and political rights-based judicial approaches. Though both incorporate international norms, they achieve this incorporation in substantially different ways. These examples will serve to suggest the ways in which both privatization and corporate actors now play an increasingly important role in realizing socio-economic rights, and the way approaches to economic and social rights are fracturing at the private as well as the public law level. Indeed, within the forms of privatized frameworks for the development of economic and social rights, India and China evidence the ways in which political division has now also been privatized and replicated — providing an additional space within which the tensions, already quite evident in the state system’s difficulties with human rights, may be replayed.