...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.' As well, high profile instances of what Harold Koh refers to as `transnational public law litigation' and Anne-Marie Slaughter and David Boscoe term `plaintiff's diplomacy' are presently underway in the US courts targeting Shell and Chevron for their alleged collusion with the government in squelching peaceful protests in Nigeria in the context of the laying of oil pipelines. Over and over, we see the battles over human rights being fought on the terrain of the state. However, the recent shift away from state-sponsorship of projects and towards market-based approaches threatens to change the nature of our narratives and the possibility of realising 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 during this period, non-governmental organisations 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 are exiting from 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 development approach, the state put up the bulk of the capital to finance infrastructure projects with the World Bank providing supplementary financing. Also, states established public corporations charged with building and operating infrastructures. In contrast, under the global project finance approach, neither the state nor the World Bank finance or carry out infrastructure projects. Instead, we are told, private companies seek funding for projects through international capital markets and then build and operate projects to recoup sunk costs and to garner a profit.

What this shift will mean for the protection of human rights is uncertain. Within the development paradigm, non-governmental organisations directed their strategies at states and the World Bank. On an argumentative level, they successfully engaged and 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 roles of participants and also the transformation of the justificatory discourse raises questions regarding how non-governmental organisations will convince project planners to take human rights risks into account when undertaking infrastructure projects.

Although many countries are only recently shifting 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 are involved across periods. At the same time, great variety exists across sectors in the companies, non-governmental organisations, set of governments, etc. participating in specific projects.

To understand the implications of this shift for the realisation of human rights, here, we employ the concept of a 'human rights risk'. A human rights risk is nothing more than the possibility that a human rights problem will adversely effect the interests of those persons undertaking an infrastructure project. Given the fact that a common set of actors, eg international bankers, transnational law firms, transnational corporations, a segment of elites in fully industrialised and developing countries, involved in projects across periods, we may say that this group constitutes 'those persons undertaking an infrastructure project.' So we then ask how does this group approach human rights the development frame and then under the global project finance frame. To do so, we first examine the various strategies undertaken by non-governmental organisations 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. Then, we compare 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 also the recently proposed Puebla-Panama Plan in Mexico. In conclusion, several observations are made regarding the significance of the shift towards privatised infrastructure projects for the realisation of human rights.

II. Strategies for Mitigating Human Rights Risks

Infrastructure projects are presently sites of intense struggles over human rights. Planners justify projects based on their ability to produce public goods. At the same time, the construction of infrastructure projects is typically associated with human rights abuses. A growing body of interdisciplinary literature examines attempts to realise human rights through legal means in the course of infrastructure projects in developing countries.

Increasingly, international law scholars are arguing that human rights law is sufficiently developed to measure rates of compliance. [2] Responding to this call, international lawyers and international relations scholars have joined forces to explain why, how and whether states obey international law. [3] Benedict Kingsbury and Anne-Marie Slaughter identify sociolegal studies as a key resource in this effort. [4] This call coincides with an increased attention in the last five years within sociolegal studies to how transnational legal processes function in practice. [5]

This article adopts a sociolegal approach, drawing selectively from the international law and international relations scholarship. Thus, a specific set of questions associated with the sociolegal approach is asked. These questions include: Why do parties pursue law to achieve their goals? What legal strategies do they undertake? How do these legal strategies operate in practice? Do they achieve their intended results? What are the unintended effects of these strategies? In answering these questions, we will test many of the hypotheses developed by international law and international relations scholars. At the same time, the primary goal is to ascertain how human rights law functions in practice in the context of infrastructure projects in developing countries.

While no sociolegal study exists devoted explicitly to assessing strategies undertaken for mitigating human rights risks in the context of infrastructure projects, several international law and social science scholars analyze this relationship in the course of asking...

NOTE: All illustrations and photos have been removed from this article.



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