This brief commentary considers the potential effect of a territorial state’s international human rights obligations on the law governing targeted killings. It posits that these obligations should limit permissible attacks by an attacking state when the territorial state is not party to an armed conflict with the relevant non-state actor, particularly when a territorial state consents to the attacking state’s actions. It also argues that a territorial state’s extraterritorial human rights obligations provides support for an attacking state’s right to resort to force in the territorial state when it fails to suppress a resident threat. It concludes by briefly suggesting that recognizing the necessity of effective governance to the preservation of human rights could prompt the development of an international law of ungoverned spaces, perhaps best thought of as “international martial law.”
Intellectual property rights (IPRs) are often conceived narrowly from the vantage point of offering incentives for private sector investment in research and development (R&D), but the legal regime of IPRs can also work to improve access to public goods for global health, particularly for those disadvantaged by destitution and disease. The WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (GSPOA), adopted by the World Health Assembly in 2008, calls for an “enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries.”1 How knowledge is generated, owned, and harnessed to support pro-poor development is at the heart of this effort. New approaches to tiering, pooling, and open-source collaboration have resulted from the struggle to deliver affordable treatments for AIDS and neglected diseases. In examining how intellectual property rights can most effectively and strategically support developing countries in implementing this ambitious and potentially catalytic agenda in enabling innovation for global health, this paper seeks to outline a coherent and strategic approach to address human development needs and to facilitate the harnessing of innovation and the sharing of knowledge for global health.
For more than two decades, the Office of the U.S. Trade Representative (USTR) has been using the tools of trade policy to encourage U.S. trading partners to provide adequate and effective protection and enforcement of intellectual property rights (IPR). That effort has both involved and inspired considerable discussion by governments and private actors on the meaning, determinants, and importance of adequate and effective IPR protection.
This essay explores one aspect of that discussion—the determinants of effective protection—by considering three commonly held beliefs about the path to overcoming the failure of a country’s intellectual property laws to provide adequate and effective protection. Each of these ideas posits a determinant of effective IPR enforcement: The first is domestic economic interest, the second is the rule of law, and the third is political will. I aim to briefly critique each of these ideas, propose a way of fitting them together, and extrapolate a general prescription.
Each year more than eighteen million human lives end in death from poverty-related causes, fully one-third of all human deaths globally. This amounts to fifty thousand deaths per day from causes such as respiratory infections, HIV/AIDS, tuberculosis, malaria, measles, and tropical diseases. Many of these are treatable, if not curable, conditions. The numbers are overwhelming and mandate an examination of the barriers to accessing medicines in developing countries, where the majority of these deaths occur. Admittedly this is an immense and complicated issue, and the economics behind pharmaceutical innovation and access is but one facet of a complete understanding of the problem. This paper describes the context of the problems surrounding access to medicines, highlighting the tremendously complicated web of issues that prevent medicines from reaching the world’s poorest. The following sections provide a bit of background on pharmaceutical patents, international intellectual property law, the pharmaceutical industry perspective, and the complicated elements that come together to create the most significant barriers to pharmaceutical access. While the international patent system is obviously flawed and in need of improvement, it is overly simplistic to blame drug patents and the global pharmaceutical industry for the access problem. The reality surrounding the challenges of access to medicines is more nuanced. In the debate over barriers to access, the culprits include corruption, poverty, taxes and tariffs, and pharmaceutical counterfeiting. Section two presents the fundamentals of the global pharmaceutical market. Section three introduces the challenges surrounding access to medicines. Section four provides analysis, and section five concludes.
A Reflective Essay by a panelist at the 2010 Harvard International Law Journal Symposium: “International Dispute Resolution in Practice”
Texaco operations in Ecuador began in 1964 and continued until 1992. Until 1990, Texaco served as sole operator of a concession covering approximately 1,500 square miles of Ecuador’s Amazon rainforest. Texaco alone was responsible for planning, constructing and operating more than 350 well sites in a region that was, and still is, the ancestral home to numerous indigenous and farming communities. In violation of Ecuadorian laws and regulations, as well as standard operating practices being used in the United States at the time, Texaco engineered and oversaw a system responsible for what experts believe is the worst oil-related environmental disaster in the world.
Seventeen years ago, 30,000 indigenous people and farmers, now led by Ecuadorian attorney, Pablo Fajardo, filed a class action lawsuit against Texaco for a long list of grievances.
Pablo Fajardo was born in the village of El Carmen, Manabí, on July 8, 1972. In 1987 he migrated to the Ecuadorian Amazon town of Shushufindi where he still resides. At the age of 17, Mr Fajardo became founder of the Human Rights Committee of Shushufindi, an organization that still exists today, and, from 1996 to 2003, worked for the Apostolic Vicariate of Aguarico as head of the Human Rights Office in Shushufindi. Mr Fajardo attended the Universidad Técnica Particular de Loja where, in 2003, he graduated as a lawyer in the courts of the Republic of Ecuador. He has attended courses on Human Rights and Environmental Management at the Universidad Politécnica Salesiana de Quito and completed his Masters Degree in International Environmental Law at the Universidad Central del Ecuador.
In 2003, the Amazon Defense Coalition retained Mr Fajardo as an assistant lawyer and, in that position, he helped coordinate and develop the legal case brought by indigenous and farming communities from the provinces of Orellana and Sucumbios against multinational oil company Chevron for serious violations against the environment and people of the region.
In June 2005, Mr Fajardo assumed the role of lead counsel for the plaintiffs and has served in this role until the present. For his tireless work defending the environment and advocating greater respect for human rights and social justice, Pablo Fajardo was awarded the 2007 CNN World Heroes Award in the ‘Fighting for Justice’ category. In April 2008, Mr Fajardo received further recognition when he was awarded the Goldman Environmental Prize, regarded by many as the “Green Nobel Prize”.
In the following reflection piece, Pablo Fajardo details his experiences throughout the Aguinda v. Chevron lawsuit, how and why he became involved in the case, and the challenges he has faced.
Although taking on this case was a great personal challenge for me, I was always aware of two aspects of it that would work in my favor. First of all, I live in the area affected by Chevron’s operations, and therefore I know personally the effects of the environmental and human rights abuses commited by the company in the Ecuadorian Amazon. Fully understanding the reality of the situation, I can speak with conviction: I know that I am speaking the truth. Furthermore, I am a human being who believes in God, life, justice and solidarity. Along with the indigenous peoples and farmers in the Amazon, my co-workers and I fight for justice and for life.
My involvement in the lawsuit against Chevron is the result of many years of personal experience and hard work. It began with my parents’ migration from the coast of Ecuador to the Amazon in search of a better life. When I arrived in the Amazon, the area affected by the company’s operations, I began to see the environmental problems first hand. I soon became involved in social work with the Catholic Church and I learned more about the effects of Chevron’s operations on health, indigenous culture and all aspects of life in the region.
We began to realize the need for a group to fight in defence of human rights because, in my city, there was nowhere for affected people to reach out for help. Subsequently, as part of the Human Rights Committee of Shushufindi, we joined the Amazon Defense Coalition to unite with indigenous groups and affected farmers throughout the region.
As soon as I completed my legal studies, I became part of the team working to defend the affected people and the environment. In 2005, I had to assume direct responsibility and legal representation of all those affected by the operations of Texaco in the Ecuadorian Amazon. So, my involvement in the case against Chevron was progressive. It was out of conviction and with the sole desire of achieving justice.
Throughout this case we have learned positive, negative, and at times, confusing lessons. The case involves five indigenous nationalities as well as other settlers in the region. It includes many cultures, customs and worldviews. Yet all of these people have put aside any differences they may have to work together in the pursuit of justice and respect for their human rights. Uniting these diverse cultures has been a great achievement.
This unity has been further reinforced through the building of a strong international support network. We have learned how to form a team with very different players, with people of the Ecuadorian rainforest, and those from big cities such as Quito. We work with people from a variety of countries, including the United States, allowing us to build a global team that is small, but very strong.
The lessons we have learned have been accompanied by great challenges, not least in the area of international human rights. Despite the fact that many national and international legal instruments have been established to protect human rights, they are all too often neglected. Furthermore, multinational corporations are not bound by these conventions; the legislation only applies to governments, effectively rendering big business immune to international accountability. Among these rights, the least respected is the right to a healthy and ecologically balanced environment, which, to me, is the most important human right we have. The right to a healthy environment is the very foundation of health, culture and the economy. By respecting this right, we protect life itself.
The conflict surrounding this right is of great concern and involves three major societal groups. Businesses and corporations primarily intend to reap profit and grow economically while States are required to help develop society as a whole, although frequently give absolute priority to economic growth. Finally, the general population demands that corporations and states respect their rights, including their right to a healthy environment and a life with dignity.
This socio-economic conflict shows little sign of subsiding. Rather, it seems more likely to increase. For businesses and many governments, more stringent environmental regulations appear to threaten economic growth, a threat that is taken very seriously. However, this lawsuit is not against business. We are not against economic development, and indeed we believe that business must grow, but not at the expense of human life. The problem is not business; the problem is the manner in which businesses operate.
Of course, there are many elements that obstruct justice within the state and internationally. The economic power of corporations often determines state economic policy and international environmental law. Corporations look to invest in states where there are better trade conditions and security for investments. Factors in creating ‘business friendly’ conditions include limiting regulation of employment and environmental legislation. By way of example, note how China, has become the great factory of the United States and the world, arguably at the expense of human rights.
One of my biggest disappointments has been the discovery of systematic corruption implemented by Chevron during the supposed remediation of the affected areas in the early 1990s. Corporate executives, Chevron lawyers and former officials of various Ecuadorian governments have been implicated in acts of corruption and deception linked to the fraudulent clean-up. They have sought to benefit economically, but in turn have caused or prolonged the worst oil related environmental disaster in history.
Another obstacle, much greater than I could have imagined, is the manipulation of scientific evidence by expert scientists to serve their own interests. In the same context, it is deplorable to see how Chevron has abused (and continues to abuse) the law in Ecuador and the United States of America to ensure that this grave and inhumane crime go unpunished.
Chevron has manipulated the international legal system from the moment the case was first filed in New York. For nine years Texaco vigorously argued under the doctrines of forum non conveniens and international comity that the case should be dismissed and, instead, be tried in Ecuador. To transfer the case to Ecuador, Texaco submitted fourteen separate expert affidavits from Ecuadorian lawyers and scholars (including their own Ecuadorian lawyers in the current trial), attesting to the fairness, independence and competency of the Ecuadorian judiciary. Chevron also promised, as a condition of the dismissal, to submit to jurisdiction in Ecuador and abide by any final judgment in the trial. Chevron was eventually successful in its plea and in 2002 the Southern District Federal Court of New York finally dismissed the case to be re-filed in their requested forum, Ecuador. Chevron praised the ruling, stating that it was “pleased with the ruling…[which] vindicate[d] Chevron’s long-standing position that the arguments we have made to the court: The appropriate forum for this litigation is Ecuador…” The communities, who had already waited a decade for redress, now had a limited time to re-file their claims in their home country.
Now, almost eight years later, Chevron is continuing this ‘forum shopping’ strategy in an attempt to delay the case even further.
On September 23, 2009, shortly before what the company expected to be an adverse judgment in the Ecuadorian case, Chevron filed a Notice of Arbitration against The Republic of Ecuador for alleged violations of the terms of the Bilateral Investment Treaty between the United States and Ecuador. Chevron claims that the Ecuadorian Courts have failed to provide the company with due process of law, despite seven years of extensive litigation with over 60,000 chemical samplings and hundreds of thousands of pages of trial testimony. As part of the relief, Chevron requests that the arbitration panel declare that the company has no liability for environmental remediation in Ecuador as a result of the former consortium between Texaco and Ecuador. They also request that Ecuador be ordered to inform the court in Lago Agrio that the company has been released any remaining and future remediation of environmental damage.
In short, Chevron seeks to remove the case from the Ecuadorian Courts after fighting for almost ten years to prove that Ecuador was the appropriate forum for the trial. This is being done despite the companies earlier promises to accept jurisdiction and abide by any judgment, and after consuming almost seven years of resources of the impacted communities who have sought nothing more than a public resolution of their claims in a public and neutral forum. The international arbitration claim has the potential to set a precedent that will have a profound effect on human rights law, public international law and the field of international arbitration. If allowed to proceed, Chevron’s request will essentially strip 30,000 plaintiffs of their legal right to seek justice for decades of human and environmental rights abuses.
Because the arbitral process makes no provision for the plaintiffs to appear, intervene, or even be notified of the private proceedings, those whose rights are most at risk are left without a voice, without access to information and without redress in the event of an adverse decision.
In many respects we must move forward. We need to understand that the environmental disaster caused by Texaco in Ecuador is not an Ecuadorian problem; it is a global issue. The double standard that companies employ in their operations demonstrates an immoral attitude of racism and discrimination. In their home countries, where regulations are more rigid (or more effectively enforced) corporations operate and act responsibly, but these same companies go to an institutionally deficient country and apply different standards that are designed to cut costs without any regard for the environment or human health.
The first step we must take is to research and monitor the actions of multinational corporations, particularly when they operate in developing regions. Secondly, we must accept the fact that environmental issues know no borders, and therefore the struggle to protect environmental rights should include all people from all countries. We must come together in the pursuit of justice, respect for life, and protection of the environment in which we live.
Finally, we must take a global perspective, but from a local reality, consciously regulating our consumption. The luxuries that we desire may often be complicit in the killing of other humans. For example, many people adorn themselves with expensive jewellery; never thinking of the many hundreds of barrels of water contaminated with mercury to extract those few grams of gold. People are dying, poisoned by mercury, for this extravagance. This is but one of many examples; we must reflect on what we consume and make conscious, moral decisions. Powerful companies, such as Chevron, must also address their business decisions from a moral perspective, and when they do not, legal frameworks must be in place to allow those affected to seek justice.
Though all evidence at trial, including Chevron’s own samplings, prove extensive contamination, and despite the fact that a verdict is near, Chevron has publicly stated: “We’re not paying and we’re going to fight this for years if not decades into the future.” In violation of sworn promises it made to the US federal court in order to move the case to Ecuador, Chevron’s general counsel and the company’s spokesman has said that notwithstanding an adverse judgment, the company would “fight until hell freezes over, and then we’ll fight it out on the ice.” Chevron has made clear that it believes itself above the law and immune to accountability in any nation in which the communities seek redress. With its unlimited resources and complete disregard for the communities, Chevron has shown that it does not respect the liberty of indigenous and farmer communities to assert their legal rights. This arrogance and sense of impunity was illustrated by one Chevron lobbyist who stated “We can’t let little countries screw around with big companies like this – companies that have made big investments around the world.”
In light of this mindset, and the legal difficulties faced when holding multinational corporations accountable for even egregious wrongdoings, accountability in the face of non-compliance remains a large challenge.
 The dumping of toxic waste in inhabited regions that relied on water for drinking was prohibited in the United States decades before Chevron began operations in Ecuador. A process called “re-injection” was the standard practice, promoted by the American Petroleum Institute in an oil field primer in 1962. Texaco itself owned a patent on the re-injection technology at the time of operations in Ecuador. For violation of U.S. operating standards see, e.g. Louisiana anti-dumping statute: Order No. 29-A, Statewide Order Governing the Drilling for and Producing of Oil and Gas in the State of Louisiana, State of Louisiana Department of Conservation, Minerals Division, May 20, 1942 (“When a well starts producing salt water, the operator or company shall report that condition to the Department. No salt water shall be allowed to run into the natural drainage channels of the area. Permits must be secured before disposing of salt water underground.”) amended by Statewide Order No. 29-B, Revision of Statewide Order No. 29 & 29-A Governing the Drilling for and Producing of Oil and Gas in the State of Louisiana, La. Admin. Code tit. 43 § 129 (1943) (“When a well starts producing salt water, the operator or company shall report that condition to the Department. Permits must be secured before disposing of salt water underground.”) (subsequently amended and reorganized); “Texas Oil and Gas Statewide Rulebook, Railroad Commission of Texas,” 16 Tex. Admin. Code § 3.8 (1976) (subsequently amended and reorganized). For information about Ecuadorian laws that were violated see, e.g. La Ley sobre Yacimientos o Depósitos Hidrocarburos (Mineral Deposits Law), 332 Registro Oficial (Separata), October 21, 1921; Ley de Agua (Water Law), 69 Registro Oficial (Separata), May 30, 1972; Ley de Hidrocarburos (Law of Hydrocarbons) Nov. 15, 1978 (amended by R.O. No. 306. Aug. 13, 1982); Ley de Prevención y Control de Contaminación Ambiental (Law of Prevention and Control of Environmental Contamination), 418 Registro Oficial (Separata), Sept. 10, 1976.
 In 2001, following a corporate merger, Texaco was acquired by Chevron. Hereinafter “Texaco” will be used only when specifically referring to the company’s actions prior to the merger with Chevron.
 Richard Goldman, Saluting the Unsung Local Heroes, BBC News, Apr. 20, 2009, available at http://news.bbc.co.uk/2/hi/science/nature/8004152.stm.
 For copies of 14 affidavits, see ChevronToxico, Examples of Chevron’s High Praise of Ecuador’s Courts (2009), http://chevrontoxico.com/assets/docs/affidavit-packet-part2.pdf.
 See Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity, Aguinda v. Texaco Inc. and Jota v. Texaco Inc. (S.D.N.Y. Jan. 11, 1999) (promising “If this Court dismisses these cases on forum non conveniens or comity grounds, [Chevron] will agree as follows: (i) first, it will accept service of process in Ecuador and not object to civil jurisdiction of a court of competent jurisdiction in Ecuador as to Aguinda…plaintiffs; …(ii) second, [Chevron] will waive statute of limitations-based defenses that may have matured between the dates when the Aguinda …plaintiffs filed their Complaints in this Court…and 60 days after dismissal by this Court to give plaintiffs an opportunity to re-filed in Ecuador; (iii) third, plaintiffs and [Chevron] may utilize the extensive discovery obtained to date in lawsuits to be filed in Ecuador…; and (iv) fourth, [Chevron] will satisfy judgments that might be entered in plaintiffs’ favor, subject to [Chevron’s] rights under New York’s Recognition of Foreign Money Judgments Act, NYCPLR 5301 et seq. (McKinney 1998)) (emphasis added).
 Press release, Texaco Inc., ChevronTexaco Issues Statement on U.S. Circuit Court Decision Affirming Dismissal of Ecuador Litigation (Aug. 19, 2002).
 Ben Casselman, Chevron Expects to Fight Ecuador Lawsuit in U.S., Wall St. J., July 20, 2009, at B3, available at http://online.wsj.com/article/SB124804873580263085.html.
 Chevron in Ecuador, Chevron to Get an Award?, http://www.chevroninecuador.com/2009/10/chevron-to-get-award.html (Oct. 27, 2009).
 Michael Isikoff, A $16 Billion Problem, Newsweek, Jul. 26, 2008, available at http://www.newsweek.com/id/149090.
A Reflective Essay by a panelist at the 2010 Harvard International Law Journal Symposium: “International Dispute Resolution in Practice”
I. Sexual Harassment: A Global Problem
This short article discusses tort liability for sexual harassment of women in India, China and Hong Kong. Sexual harassment is a violation of a woman’s freedom of her person, her dignity, bodily integrity and sexual autonomy. A woman may be sexually harassed virtually anywhere: in the workplace, educational institutions, hospitals, marketplace, shops, bars, discos, elevators, Internet bars, public buses, trains and even in planes. Sexual harassment occurs if the impugned act is unwelcome or unsolicited.
Incidents of sexual harassment are increasing exponentially, especially in Asian countries, which have over half the world’s population. In India, a woman is sexually harassed every 12 minutes. In China, 80% of working women experienced sexual harassment at some stage of their career. In Germany, a survey indicated that 93% of working women were victims of sexual harassment as of 1998. Approximately 6 of 10 nurses in Australia have experienced sexual harassment. In Hong Kong most complaints received by the Equal Opportunities Commission (EOC) in some recent years were of sexual harassment. In the United States over 50% of employed women had been sexually harassed. In Canada 51% of women reported having experienced sexual violence at least once and in Singapore almost 50% women have been victims of sexual harassment. The above statistics affirms that sexual harassment is a global problem.
Graver forms of sexual harassment such as rape, incest, violent assault have been criminalized in almost all countries. Efforts to address sexual harassment problems started with the enactment of anti-discrimination laws prohibiting sexual harassment in the workplace. This movement was led by the United States. Title VII of the United States Civil Rights Act 1964 forbids sexual harassment (including same sex) in the field of employment. Several factors contributed to the specific and explicit recognition of sexual harassment internationally as a wrong in the workplace including the following:
First, the emphasis on gender equality and the identity of women found in documents like the Preamble to the Charter of the United Nations and the Universal Declaration of Human Rights spurred greater focus on gender equality and identity of women.
Second, as women began to play an important role in political, social and economic spheres of society, they succeeded in politicizing what was private and domestic.
Third, the United Nations and many countries through their constitutional framework and laws began to emphasize on the equality of individuals irrespective of their sex or sexual orientation. Scholars like Catharine MacKinnon attacked the stereotyping of women as a sexual being.
Fourth, the attention to sexual harassment of women resulted both from humanistic and, more importantly, economic considerations- if women are not equally integrated into the workforce and not free from hostile work environment, it would lead to absenteeism and stress related healthcare problems resulting in increased cost of businesses and loss of production.
The author focuses on sexual harassment law and policy of three countries: India, Hong Kong and China with some reference to the Australian position. India, China and Hong Kong hold most of the female population of the world. While India and China epitomise Asian values that relegate women to the domestic and private spheres, Hong Kong represents a mix of traditional Asian culture with western characteristics.
India, in particular, presents irreconcilable contradictions. India produced the world famous book, Kama Sutra on the art of love making. Deriving inspiration from this classic on sex, in the 10th or 11th century, were built Khajuraho stone temples. On these temples are carvings explicitly depicting sexual acts by two or more persons in provocative postures. Women are also worshipped as goddesses in India. But on the other hand, they are objects of torture and harassment.
India does not have any specific legislation on sexual harassment yet. However, the Supreme Court of India in Vishakha has declared sexual harassment to be unlawful under constitutional guarantee of the right to life and gender equality, other constitutional provisions, and international conventions.
The Supreme Court defines sexual harassment to include any unwelcome physical contact or advances, demands or requests for sexual favours, sexually coloured remarks, displaying of pornography and other unwelcome physical, verbal or non-verbal conduct of a sexual nature. (The Supreme Court requires all workplaces, educational institutions and organised service sectors, private or public with more than 50 employees to introduce sexual harassment prevention policy and set up a complaints committee to investigate into sexual harassment complaints. The complaints committee is required to submit an inquiry report which is treated as the last word on the incident. Prior to Vishakha, the only remedy for sexual harassment was to initiate a criminal proceeding. The then law did not specifically provide for awarding monetary compensation. In Vishakha, the Supreme Court did not deal with the question of compensation to the victim. However in subsequent cases the courts have granted tort damages to sexual harassment victims.
The National Commission for Women (NCW) can intervene where the Vishakha guidelines are not followed by an employer. The NCW drafted the Sexual Harassment of Women at their Workplace (Prevention) Bill which is still pending before Parliament. The Bill does not apply to agriculture, construction and home based unorganised work sectors, among others and excludes men and same sex harassment from its purview. However it relaxes the burden of proof on a woman complaining of sexual harassment, and there is a proposal to amend the Bill to specifically cover students, research scholars and those working in unorganised sector.
There is an all-out attempt to protect women. The Sexual Harassment Bill is but one example. There are national laws on eve teasing (street sexual harassment) and a Bill to reserve 33% of seats in the national Parliament and provisional assemblies to women in the pipeline. In big cities like Delhi and Mumbai, seats are reserved for women in local trains, ladies special buses are running, and there are women-only taxis driven by women drivers. One wonders if these extraordinary measures will reduce the incidents of sexual harassment. In the author’s view such strategies are retrograde steps.
The story of China is somewhat similar to India. Women occupy subordinate position to men and are traditionally viewed as a root cause of all evils. If a husband has a mistress or a girl is sexually harassed, it is often treated that it was due to her fault. According to Confucius a woman must be dependent on her father, her husband or her son. Chairman Mao Zedong said women “hold half the sky”. Yet there has been no dramatic improvement in the position of women. Ironically, although they constitute 45% of the work force, they are still harassed in the workplace. Further only 30% of sexual harassment claims of women succeed. This success rate is however higher than in Hong Kong.
A national law against sexual harassment of women was implemented in 2007 declaring sexual harassment of women violates public security and subjects the wrongdoer to penalties as well as civil claims. There are also provincial laws declaring sexual harassment unlawful. Interestingly, a Sichuan Province law prohibits male political leaders from employing female secretaries. Chinese courts have granted monetary compensation and other remedies to victims of sexual harassment but the compensation given to them appears to be just a token. Again, sexual harassment law in China (like India) only protects women when they are harassed by men. Further, it does not relax the victim’s burden of proof or provides for an effective ‘internal complaints committee’ to investigate sexual harassment complaints. Moreover, there is no mandatory requirement for companies and institutions in China to promulgate a code of conduct for employees to warn them against committing sexual harassment.
IV. Hong Kong
Hong Kong, inhabited overwhelmingly by Chinese people, remains one of the leading international business centres in Asia and the world. There are a large number of foreign tourists throughout the year and many non-Chinese are employed in private and public sectors, judiciary and educational institutions. Almost all well known international companies have offices in Hong Kong and Hong Kong’s culture and practices are different from those of China. Hong Kong laws are heavily influenced by the English legislation and common law. The law on sexual harassment is contained in the Sex Discrimination Ordinance (SDO) enacted in 1996. The SDO makes sexual harassment a tort. The provisions of the SDO are modelled upon Australian federal and state laws. Hong Kong’s legislation is an improvement on its Australian counterpart. Hong Kong perhaps presents one of the better pieces of legislation on sexual harassment in the common law world. But while the legislators have succeeded, the judges have not proved equal to the task. The SDO § 2 (5)(a) provides that a person sexually harasses a woman if the person makes an unwelcome sexual advance, or makes an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person having regard to all the circumstances would have anticipated that she would be offended, humiliated or intimidated. Section 2(5)(b) provides that a person, alone or together with other persons, engages in conduct of a sexual nature, which creates a sexually hostile or intimidating work environment for her.
There are several salutary features of the Hong Kong legislation. First, it declares sexual harassment unlawful not only in employment but also in educational institutions and other fields. Second, it specifically provides under section 46(3) that anything done by a person in the course of employment shall be treated as done by the employer as well as by him, whether or not it was done by the employer’s knowledge or approval unless the employer took reasonable steps to prevent the employee from perpetrating the alleged act of sexual harassment, which is difficult for the employer to prove. This provision was enacted to make employers proactive in protecting their employees for otherwise the worse the sexual harassment was the less the likelihood of the employer being liable. Third, the SDO expressly provides for awarding punitive and exemplary damages to a victim of sexual harassment. By contrast many other jurisdictions (e.g. Australia) do not provide for awarding such damages. Fourth, the SDO requires the Equal Opportunities Commission of Hong Kong to play a constructive role in resolving sexual harassment disputes and provide legal assistance to victims. Fifth, the SDO also specifically declares creating a sexually hostile or intimidating work environment unlawful.
Despite these salutary aspects of the SDO, it has many shortcomings. First, although the definition of sexual harassment is fairly comprehensive, it does not cover sexual harassment unless the act of the wrongdoer can be brought within the scope of the harassee’s employment, educational or other participatory activities set out in the SDO. Second, the emphasis in the SDO is on the protection of women and not men, so same sex sexual harassment is not covered. Third, the burden of proof on the complainant is heavy. The courts apply an objective test to determine whether or not sexual harassment was committed. This test is problematic.
Claims have been rejected on the ground that the complainant:
1) was highly sensitive to physical contact;
2) did not resist the unwelcome sexual act
3) flaunted herself;
4) had a prior consensual relationship with the wrongdoer;
5) delayed reporting the matter;
6) did not object out of economic considerations; and
7) complained of a statement which was couched in neutral terms (e.g. sex is beautiful, sex is good and such terms).
For example, one case held that asking a junior employee what sexual services, short of sexual intercourse, might be offered by a prostitute or whether or not a prostitute could be a virgin was not sexual harassment of the employee because that question was not particularly directed against her.
V. Prognosis for Reform
It is not easy to change the ingrained attitude of perpetrators of the wrong of sexual harassment. However, the following comments and suggestions may be noted:
First, despite the magnitude of the problem, Asian countries have not adopted a holistic approach to dealing with the problem of sexual harassment. Legislation declaring sexual harassment unlawful, judicial decisions awarding damages, or complaints committees giving out punishment cannot control the widespread prevalence of sexual harassment. The whole society, including political leaders, social scientists and religious reformers should be involved in spreading the message that sexual harassment is a heinous and demeaning practice. The media, the television, radio and newspapers must engage in concerted attempts to change the mindset of harassers.
Second, complaints committees, complaints tribunals, equal opportunity commissions, grievance federations (if any), human rights commissions and courts dealing with sexual harassment cases should have adequate representation of women. In India the Sexual Harassment of Women at their Workplace Bill 2007 as well as the Vishakha guidelines provide that a sexual harassment complaints committee must be chaired by a woman and half its members must also be women. These steps may prevent male bias against women and ensure that fairer decisions are made.
Third, sexual harassment is pervasive, but legislation covers only limited, specified situations in which it occurs.
Fourth, since there are inherent difficulties with proving a case of sexual harassment, once the complainant has established a prima facie case, the burden of proof should shift to wrongdoer to prove his innocence.
Fifth, the low level of damages awarded in Hong Kong means that being convicted may have no deterrent effect on the wrongdoer. Unfortunately, the SDO’s direction to grant exemplary damages had not had much impact on the judges in Hong Kong. The damages awarded in Hong Kong do not take into account the area’s high per capita income. In the United States, the average out-of-court settlement for a victim of sexual harassment is US $300,000.
Sixth, to control sexual harassment at the workplace, employment contracts must contain a clause that if an employee is found guilty of sexual harassment that would lead to termination of the employee’s job after due procedure.
Seventh, sexual harassment cases may lead to problems for the victim’s family. This must be dealt with by women organizations and they should provide counselling services to the victim as well as her family members.
Eighth, women organisations and civil society should play a proactive role to change the patriarchal norms and standards that have largely permeated within the fabric of Asian societies.
There is no duty higher than treating women with respect, dignity and honor.
 See generally, D.K. Srivastava, Recognizing Sexual Harassment as a Tort, 1999 Hong Kong Law.: Official J. L. Soc. Hong Kong 33-38.
 National Crime Records Bureau (NCRB), Crime Clock 2002, available at http://ncrb.nic.in/ciiprevious/data/cd-CII2002/cii-2002/crime%20clock.htm.
 See D.K Srivastava and Minkang Gu, Law and Policy issues on Sexual Harassment in China: Comparative Perspectives, Or. Rev. Int’l L. 46 n.17 (2009).
 International Labour Organization, When Working Becomes Hazardous, World of Work (1998), available at http://www.ilo.org/public/english/bureau/inf/magazine/26/violence.htm.
 Julie Cogin & Alan Fish, Sexual harassment – a touchy subject for nurses, 23 J. Health Org. & Management 442-62 (2009).
 Equal Opportunities Commission, Work Review- Statistics, available at http://www.eoc.org.hk/EOC/GraphicsFolder/ShowContent.aspx?ItemID=5157.
 Jennifer Coburn, Viewpoint: Sexual Harassment: Why is Society Shocked?, National Org. Women, available at http://www.now.org/nnt/01-97/shocked.html.
 SACHA Sexual Assault Centre, Statistics, available at http://www.sacha.ca
 Association of Women for Action and Research (AWARE), Survey Report 2007-08, available at www.aware.org
 The United Kingdom also prohibits sexual harassment including same sex harassment in the employment field under the Sex Discrimination Act, 1975.
 Mary Beard, Woman as a Force in History, 1946: VII Equality as the Escape from Subjection, http://www.marxists.org/archive/beard/woman-force/ch07.htm, See also Ac. Krtashivananda Avt., Women’s Liberation Struggle http://www.scribd.com/doc/14018396/Womens-Liberation-Struggle; Sheila Rowbotham, Hidden from History: 300 years of Women’s Oppression and the Fight Against It, http://www.marxists.org/subject/women/authors/rowbotham-sheila/hidden-history.htm.
 United Nations Charter, June 16, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153; The Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., pt. 1, at 71, U.N. Doc. A/810 (1948).
 For discussion on the public/ private divide, see Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law 1-26 (2004).
 Catharine A. MacKinnon, Sexual Harassment of Working Women 151-54 (1979).
 Vishakha & Others v. State of Rajasthan, A.I.R. 1997 S.C. 3011.
 In this judgment, the Supreme Court went further than the general constitutional mandate in that it applied the law declared by it not only to public but also to private sectors. After the Supreme Court’s decision, several universities introduced sexual harassment policies, see, e.g. University of Delhi, Policy on Sexual Harassment, http://www.du.ac.in/du/SexHarass.pdf. Universities all over the world have such policies, see, e.g. Harvard University Faculty of Arts and Sciences, Sexual Harassment Guidelines, http://www.fas.harvard.edu/home/dean-and-administration/policies-for-faculty-students-and-staff/sexual-harassment-guidelines.shtml.
Medha Kotwal Lele v. Union of India & Others W.P.(Crl.) No. 173-177/1999.
In other cases, the Supreme Court has also held that when a government employee sexually harasses a woman, the government is vicariously liable to pay her compensation. See Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 S.C. 922; State of Rajasthan v. Mst. Vidhyawati, A.I.R. 1962 S.C. 933.
 See The National Commission for Women Act, No. 20 of 1990; India Code (1990).
 Almost 400 million of India’s workforce is in unorganised sectors, of which at least 120 million are women. Kiran Moghe, Underestanding the Unorganised Sector, http://infochangeindia.org/200709206491/Agenda/Women-At-Work/Understanding-the-unorganised-sector.html; Ministry of Labour and Employment, Unorganised Sector in India: Social Security and Welfare Funds, http://labour.nic.in/ss/UNORGANISEDSECTORININDIA-SocialSecurityandWelfareFunds.pdf.
 There are also criticisms that neither Vishakha nor the proposed Bill takes into account the plight of men. A complaints committee in the University of Delhi found a former vice principal guilty of harassing male students. Swaha Sahoo, Delhi’s Faculty of Shame, Hindustan T., Sept. 26, 2008. Critics of Vishaka say that a woman may sexually seduce a man with her extremely subtle ways, dressing and gestures and movements, which has never been considered sexual harassment. See Sexual Harassment at Workplace Laws- Loopholes, http://www.citehr.com/18649-sexual-harassment-workplace-laws-loopholes.html The same critics question why women’s groups in India do not address the issue of sexual harassment and abuse of men and boys.
 The Protection against Sexual Harassment of Women Draft Bill 2005, Chapter VI, § 54 (2005), available at http://www.wcd.nic.in/draftsexharassment.htm.
 See, e.g. Himanshi Dhawan, Sexual harassment bill to cover students, T. India, June 18, 2010, available at http://timesofindia.indiatimes.com/india/Sexual-harassment-bill-to-cover-students/articleshow/6060823.cms; Bill against sexual harassment likely in parliament’s monsoon session, T. India, July 5, 2010, available at http://timesofindia.indiatimes.com/india/Bill-against-sexual-harassment-likely-in-parliaments-monsoon-session/articleshow/6131681.cms.
 Eve teasing is currently punished by the Indian Penal Code. India Pen. Code §§ 292, 294.5, 509.
 Joy of India’s women-only trains, BBC News, Oct. 10, 2009, available at http://news.bbc.co.uk/2/hi/south_asia/8290377.stm; My City, Hindustan T. March 14, 2010 at 6; Geeta Pandey, Delhi launches women-only buses, BBC News, Dec. 31, 2002, available at http://news.bbc.co.uk/2/hi/south_asia/2617757.stm.
 This part of the article is much based on Srivastava & Gu, Law and Policy Issues on Sexual Harassment in China: Comparative Perspectives, supra note 3.
 See, e.g. Keith Pratt, Sex and Aesthetics in Traditional China 3-4 (1997); Delia Davin, Women in the Countryside of China, in Women in Chinese Society 243 (Margery Wolf & Roane Witke eds., 1975); Julia Kristeva, About Chinese Women (1977).
 Srivastava & Gu, Law and Policy Issues on Sexual Harassment in China: Comparative Perspectives, supra note 3.
 Law on the Protection of Women’s Rights and Interests (Apr. 3, 1992) (amended Aug. 28, 2005) (P.R.C.). “Gender equality has been written into China’s law system for the first time since August, 2005 when the Amendment to the Law was passed at the 17th meeting of the Standing Committee of the 10th National People’s Congress. In April 2007, a sexual harassment case in Shaanxi Province was first to use this revised law in China and the victim won the lawsuit.” See Law on the Protection of Women’s Rights to be Improved, available at http://www.womenofchina.cn/Issues/Rights_Protection/200269.jsp.
 Protection of Rights and Interests of Women ch. VII, art. 58 (P.R.C.), 2006 CHINA LAW LEXIS 10212. In China, national legislation usually sets out general principles while administrative bodies or local governments implement rules and regulations. See ALBERT HONGYI (HUNG-YEE) CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE’S REPUBLIC OF CHINA (LexisNexis 3d ed. 2004).
 The Shanghai implementation of the National Law on the Protection of Rights and Interests of Women prohibits the “sexual harassment of women in the form of spoken and written language, images, electronic information and bodily gestures…” Shanghai Legislators Specify Forms of Sexual Harassment, Xinhua News Agency, Oct. 26, 2006, available at http://www.gov.cn/english/2006-10/26/content_423978.htm.
 Huang Xianming, Sichuan Issues New Rules Prohibiting Employment of Female Secretaries by Men Holding Leadership Positions, HUAXI CITY NEWSPAPER, July 14, 2003, http://news.sina.com.cn/c/2003-07-14/10431338407.html.
 Sexual Discrimination Ordinance, (1996) Cap. 480, 1. (H.K.) [hereinafter SDO].
 Id. at §§ 16, 17, 23, 24, 39.
 Id. at § 2.
 Id. At § 82
 For example, in Australia only compensatory damages can be awarded.
 See SDO, supra note 35 at §§ 16 (trade unions etc.), 17 (qualifying bodies), 23 (employment), 39 (educational establishments), and 40 (other sexual harassments). See also Id. at § 24.
 D.K. Srivastava, Proving the Wrong of Sexual Harassment: The Futility of Applying the Objective Test, 5 J. Chinese & Comp. L., 205-220 (2002).
 Ratcliffe v Secretary for Civil Service and Another  4 HKC 237.
 The SDO does not ban all forms of sexual harassment, but instead requires the victim’s case to fall within a list of situations specified in the SDO. See SDO §§ 16, 17, 23, 24, 39 and 40.
 SDO, supra note 35 at § 82 (“The financial penalty imposed under subsection (5) shall not exceed $10000 for the first occasion on which a penalty is imposed, and $30000 for the second and any subsequent occasion on which a penalty is imposed in respect of the same person.”).
 An ounce of prevention can avert a million-dollar lawsuit, UC Berkeley News, Jan. 26, 2006, available at http://berkeley.edu/news/berkeleyan/2006/01/26_training.shtml.
 Even in the contemporary liberalised Indian society, an off the cuff remark by a woman that she endorses pre-marital sex could lead to 22 criminal cases against her. See Supreme Court: Khushboo free to opine on pre-marital sex, Reuters, April 28, 2010, available at http://in.reuters.com/article/idINIndia-48073220100428.