Mitigating Human Rights Risks Under State- Financed and Privatized Infrastructure Projects

Infrastructure projects undertaken in developing countries and transition societies are presently sites of intense human rights struggles. For instance, public outcry resulting from a well-orchestrated non-governmental campaign led the World Bank to withdraw support for a series of state-sponsored dam projects along the Narmada River in India. The Zapatistas have responded to President Vincente Fox’s offer to build a land-based Panama Canal through the Chiapas region by claiming that it would give indigenous peoples no more than “the crumbs left over from capitalist neo-liberal development.” Suits have been filed in U.S. courts against Shell and Chevron 2 for their alleged collusion with the Nigerian government in squelching peaceful protests against the laying of oil pipelines in Nigeria. These suits are high-profile instances of what Harold Koh refers to as “transnational public law litigation” and Anne-Marie Slaughter and David Bosco term “plaintiff’s diplomacy.” Again and again, we see the battles over human rights being fought on the terrain of the state. The recent shift away from state sponsorship of projects and towards market-based approaches, however, threatens to change the nature of our narratives and the possibility of realizing a human rights-based development model.

According to conventional accounts, from the 1950s to roughly the 1990s, infrastructure projects in many countries were financed and carried out by states. When the state had insufficient capital or technological capacity, either the World Bank or private transnational corporations entered the project arena in an auxiliary capacity. As a result, when human rights problems arose in connection with infrastructure projects, non-governmental organizations (NGOs) and community groups targeted the state and, on occasion, the World Bank. Perhaps coincidentally, as these non-state initiated campaigns succeeded in holding states and the World Bank accountable for their roles in perpetrating human rights abuses, we were told that, due to mismanagement by and incapacity of the state and the World Bank, both parties were exiting the infrastructure business.

A shift is underway, initiated in many countries during the 1980s, away from the development approach and towards the global project finance approach to infrastructure projects. Under the global project finance approach, neither the state nor the World Bank finance or carry out infrastructure projects. Instead, private companies seek funding for projects through international capital markets and then build and operate projects to recoup costs and to garner a profit. What this shift will mean for the protection of human rights is uncertain. Within the development paradigm, NGOs directed their strategies at states and the World Bank. On the level of argumentation, they successfully transformed the development discourse, promoting the idea of a more people-centered and environmentally friendly “sustainable development” approach. With the initiation of global project finance, the constellation of actors involved in specific projects changes and the discourse of development is supplanted by the discourse of the market. The shift in the roster and in the roles of participants, and the transformation of the justificatory discourse, raises questions regarding how NGOs will convince project planners to take human rights risks into account when undertaking infrastructure projects.

Although many countries have only recently shifted away from the development approach and towards the global project finance approach, several countries have been pursuing projects under the latter approach since the late 1980s. Projects have been initiated and some even completed in such diverse infrastructure sectors as airports, dams, mining, power, roads, and telecommunications. We see a common mode of argumentation, with the market discourse driving the shift across sectors. Quite often, a small set of investment banks, international lawyers, and insurance firms have been involved in infrastructure projects under both approaches. At the same time, great variety exists across sectors in the companies, NGOs, governments, and other participants in specific projects.

To analyze the implications of this shift for the realization of human rights, this article employs the concept of a “human rights risk.” A human rights risk is simply the possibility that a human rights problem will adversely affect the interests of those persons undertaking an infrastructure project. Given the fact that a common set of actors—e.g. international bankers, transnational law firms, transnational corporations, a segment of elites in fully industrialized and developing countries—is involved in projects across periods, we may say that this group constitutes “those persons undertaking an infrastructure project.” This article inquires how this group approaches human rights under the development frame and then under the global project finance frame. Part I examines the various strategies undertaken by NGOs and community groups to manage human rights risks in the context of infrastructure projects—transnational public law litigation, anti-corruption legislation, and market-based mechanisms. Part II then compares how these strategies are employed with reference to projects undertaken under the development and global project finance approaches, examining the Narmada dams in India, the North-South Expressway in Malaysia, and the recently proposed Puebla-Panama Plan in Mexico. In conclusion, several observations are made regarding the significance of the shift towards privatized infrastructure projects for the realization of human rights.