Michael Bochenek Interview, Part II

Michael Bochenek Interview, Part II

The Journal continues its Interview Initiative with Michael Bochenek, the Legal and Policy Director for Amnesty International. In this two-part interview, Bochenek discusses Amnesty’s Demand Dignity Campaign, which seeks to end the human rights abuses that perpetuate conditions of poverty around the world. In this second section, Bochenek elaborates on the connection between poverty and human rights, explains how the Campaign plays out in different countries including the United States, and ends with some comments on corporate accountability.

Interviewer: James Tager, J.D. ’13

Tell us a bit about the Demand Dignity campaign’s analysis of the connection between poverty and human rights.

While we certainly wouldn’t say that respecting human rights solves poverty, what I think we can say is that human rights violations can keep people in poverty, or can keep them in the circumstances that are associated with poverty. These circumstances involve things like living in slums, things like experiencing greater-than-acceptable and greater-than-average rate of preventable maternal death, as well as risks other than those the Campaign focuses on. And I also think it’s true that government policies that respect, protect, and fulfill human rights will ameliorate some of the conditions that we are describing here, and certainly these policies will address the rights issues that are at stake.

I don’t think that any of us would try to make the case that we are seeing direct causality between respect for human rights and a solution to poverty, but I think that it is an important part of the process.

I’m sure that there are those who disagree with this approach.

The response of China for a long time, for example, was: “Don’t bring these human rights issues to us. We need to develop our country first, and then we’ll deal with human rights.” And that’s not an acceptable outcome, and it’s also not one that we think is productive. If you outcome is a very narrow one, such as increasing GDP or some other broad marker of economic development, then you may achieve your goal. But you are achieving it at the cost of, potentially, great inequality, and at the cost of perpetuating the kind of conditions, and the kind of conditions, such as those of people living in slums. Perpetuating the conditions that we’re trying to address. So it’s not a satisfactory solution to poverty, I think is the main point.

That sounds like an aspect of the “Asian Exception Debate,” or the “Asian Values Debate.” Are there other countries that you see as dissenting from this approach?

Well classically, the United States for many years has said: “we’re not going to worry about economic and social ‘issues.’” They refuse to call them rights. They say instead, “we respect civil and political rights. We respect the rights that are enumerated in the Constitution and the Bill of Rights.”

Again, I think we’ve seen the kinds of inequalities that such an approach leads to, and I think that more fundamentally for a human rights organization, the problematic allocation of resources like who can receive healthcare and who cannot, are just unacceptable. So another Amnesty report for the Demand Dignity campaign was around maternal mortality in the U.S. And this report highlighted some of the consequences of neglecting economic and social rights in favor of an exclusive civil and political rights approach.

Tell us a bit more about how you see the Demand Dignity campaign playing out in the United States.

I think the picture is probably less stark than we often picture it. For example, while it is true that there’s no explicit Constitutional right to education in America, this didn’t stop the Supreme Court from holding in 1982 that states can’t exclude immigrant children from public elementary and high school education, which they based on equal protection grounds. [Plyler v. Doe, 457 U.S. 202 (1982)]. And I think it is a generally accepted principle (although perhaps it has been questioned more recently) that you shouldn’t deprive certain classes of children of an education, because that violates core principles that are essentially what human rights law would call the right to freedom from discrimination.

Health rights issues have of course been playing out in the United States over the past several years. And I think what is interesting about the discussion, analyzing it from a human rights framework, is that a human rights analysis would not prescribe a particular form of delivering health services or securing the right to health. And so, in principle, and number of forms could be utilized to achieve this goal. Certainly the U.S. has this patchwork, a variety of government programs that provide health coverage for those who qualify for the program—the elderly, veterans. So you have some state-provided healthcare programs alongside a large number of people who are completely uninsured. And it’s this particular result, not the presence or absence of a specific form of delivering healthcare, that is unacceptable. It is the idea that people who need it cannot receive life-saving care, that is the problematic part from a human rights standpoint. The point is not to determine the appropriate form for delivering healthcare; the point is to make sure that people enjoy the right to health.

I think that there is a general sense in the United States, a general and an increasing recognition of the need to secure access to health, to education, and more recently to some sort of unemployment protection for people who are suffering the consequences of the recent economic downturn. I think that awareness is coming, but certainly there is a rhetoric on the part of many policymakers that rejects that growing awareness in a way that is framed politically rather than in terms of what people actually need. Which of course illustrates how there is still a lot more to be done, to raise awareness of economic, social, and cultural rights in the U.S. context.

One interesting aspect of the Demand Dignity campaign is that part of the work of the campaign is on the level of norm advancement: raising awareness of the relationship between human rights and poverty. Can you tell us a bit more about what this means for the campaign?

Some of the approach that we are taking at Demand Dignity is at the macro-level, a level of philosophy. This begins with the very idea that everyone has human rights, that they include the whole range of human rights that are set forth in the Universal Declaration, and that governments and even private actors bear a measure of responsibility: states to respect, protect, and fulfill, and private actors at least to respect those rights. And that is a very big idea, one that I think sixty years ago was certainly not widely accepted, and one that is still contested in various places around the world.

Then I think there are some macro-level policy recommendations that come out of the work we’re doing, and one of them is, in regards to situations where a state does not have the resources right now to realize these rights, that the state should do so within the context of international cooperation and assistance. And that implies both an obligation on the part of the state lacking resources to request assistance, and a measure of responsibility on the part of donor states, states that have the money, to share those resources. And to share these resources without the kind of conditions that have nothing to do with respecting human rights. To use humanitarian assistance as a geo-political lever of diplomacy would not be consistent with the concept that all states bear some measure of responsibility for realizing human rights around the world.

Then there is an even more detailed analysis, and I think it is always necessary for our work to look at the detail and to be very granular about how to realize rights in the specific context we’re examining. We are not looking for the easy solution of “government should spend more money on X.” That’s not realistic in most contexts, and it doesn’t adequately reflect the fact that governments are quite legitimately trying to balance a whole variety of concerns and spread limited resources around in the way that they think best from their perspective.

From there, we can try to make suggestions that can inform policymakers as they make decision, with an emphasis on remembering the needs of the people who are affected by these decisions. And that is really the approach of all of our reports, to start with the basis of the legal obligation, and then look at what sound practice suggests that states do in that particular context, with an emphasis on concrete recommendations. So you are looking at a constant engagement at the macro- and the micro-level.

You mentioned earlier that one of the focuses of the Demand Dignity campaign is on corporate accountability. What has yet to be done to develop the framework of corporate accountability?

So let’s start with the terms themselves: corporate accountability implies a structure that is different from a voluntary corporate responsibility approach, an approach that corporations often push. What a lot of corporate entities want to see is a set of voluntary principles that they can commit to following in some sort of spirit of good will, but that will not entail any consequences if they don’t happen to follow them. It’s a loose framework that isn’t really much more than aspirational. Instead, what we do need to see is effective oversight, and effective oversight that takes account of the nature of the kinds of corporations that are most of concern for the context that we’re speaking of.

By that, I refer to international corporate actors who are operating in a variety of jurisdictions, some of which may have weak oversight mechanisms and others of which have stronger ones. Think about the Trafigura dumping scenario: A British-Dutch company illegally exports hazardous waste, which then turns up in slum areas around Abidjan, Cote D’ivoire, and the oversight mechanisms in Cote D’ivoire are not as strong as they would ideally be. The risk in this situation is that the corporation could, either as a result of weak oversight mechanisms or in other contexts because its use of a supply-chain model, that the corporation will evade accountability for the actions that it directed or that it benefitted from and was responsible for in some way. And that is the kind of result that we would hope an effective corporate accountability framework would avoid.

So in order to develop the corporate accountability framework we need to ensure the possibility of oversight in the host country, the country in which direct operations are happening—direct operations such as the extraction of natural resources from the communities, or disposal of waste materials. As well, we would want the possibility of oversight in the home countries, the countries where the corporation has its corporate seat. And finally, if we are talking about serious corporate misbehavior and if neither of these jurisdictions are able or willing to act, then we would have the possibility of oversight in some third state. That, I think, would be the most controversial element of all these options. But certainly, if we are talking about things that amount to crimes under international law, then this is just a logical extension of the principle of universal jurisdiction. So I think that these possibilities can be incorporated into an effective corporate accountability framework.

This concludes HHRJ’s interview with Michael Bochenek. For more information on the Demand Dignity Campaign, visit the Campaign website, available here.

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