Jonathan Marks
1,360,902 views • 14:56

Twenty years ago, when I was a barrister and human rights lawyer in full-time legal practice in London, and the highest court in the land still convened, some would say by an accident of history, in this building here, I met a young man who had just quit his job in the British Foreign Office. When I asked him, "Why did you leave," he told me this story.

He had gone to his boss one morning and said, "Let's do something about human rights abuses in China." And his boss had replied, "We can't do anything about human rights abuses in China because we have trade relations with China."

So my friend went away with his tail between his legs, and six months later, he returned again to his boss, and he said this time, "Let's do something about human rights in Burma," as it was then called.

His boss once again paused and said, "Oh, but we can't do anything about human rights in Burma because we don't have any trade relations with Burma."

(Laughter)

This was the moment he knew he had to leave. It wasn't just the hypocrisy that got to him. It was the unwillingness of his government to engage in conflict with other governments, in tense discussions, all the while, innocent people were being harmed.

We are constantly told that conflict is bad that compromise is good; that conflict is bad but consensus is good; that conflict is bad and collaboration is good. But in my view, that's far too simple a vision of the world. We cannot know whether conflict is bad unless we know who is fighting, why they are fighting and how they are fighting. And compromises can be thoroughly rotten if they harm people who are not at the table, people who are vulnerable, disempowered, people whom we have an obligation to protect.

Now, you might be somewhat skeptical of a lawyer arguing about the benefits of conflict and creating problems for compromise, but I did also qualify as a mediator, and these days, I spend my time giving talks about ethics for free. So as my bank manager likes to remind me, I'm downwardly mobile. But if you accept my argument, it should change not just the way we lead our personal lives, which I wish to put to one side for the moment, but it will change the way we think about major problems of public health and the environment. Let me explain.

Every middle schooler in the United States, my 12-year-old daughter included, learns that there are three branches of government, the legislative, the executive and the judicial branch. James Madison wrote, "If there is any principle more sacred in our Constitution, and indeed in any free constitution, than any other, it is that which separates the legislative, the executive and the judicial powers." Now, the framers were not just concerned about the concentration and exercise of power. They also understood the perils of influence. Judges cannot determine the constitutionality of laws if they participate in making those laws, nor can they hold the other branches of government accountable if they collaborate with them or enter into close relationships with them. The Constitution is, as one famous scholar put it, "an invitation to struggle." And we the people are served when those branches do, indeed, struggle with each other.

Now, we recognize the importance of struggle not just in the public sector between our branches of government. We also know it too in the private sector, in relationships among corporations. Let's imagine that two American airlines get together and agree that they will not drop the price of their economy class airfares below 250 dollars a ticket. That is collaboration, some would say collusion, not competition, and we the people are harmed because we pay more for our tickets. Imagine similarly two airlines were to say, "Look, Airline A, we'll take the route from LA to Chicago," and Airline B says, "We'll take the route from Chicago to DC, and we won't compete." Once again, that's collaboration or collusion instead of competition, and we the people are harmed.

So we understand the importance of struggle when it comes to relationships between branches of government, the public sector. We also understand the importance of conflict when it comes to relationships among corporations, the private sector. But where we have forgotten it is in the relationships between the public and the private. And governments all over the world are collaborating with industry to solve problems of public health and the environment, often collaborating with the very corporations that are creating or exacerbating the problems they are trying to solve. We are told that these relationships are a win-win. But what if someone is losing out?

Let me give you some examples. A United Nations agency decided to address a serious problem: poor sanitation in schools in rural India. They did so not just in collaboration with national and local governments but also with a television company and with a major multinational soda company. In exchange for less than one million dollars, that corporation received the benefits of a months-long promotional campaign including a 12-hour telethon all using the company's logo and color scheme. This was an arrangement which was totally understandable from the corporation's point of view. It enhances the reputation of the company and it creates brand loyalty for its products. But in my view, this is profoundly problematic for the intergovernmental agency, an agency that has a mission to promote sustainable living. By increasing consumption of sugar-sweetened beverages made from scarce local water supplies and drunk out of plastic bottles in a country that is already grappling with obesity, this is neither sustainable from a public health nor an environmental point of view. And in order to solve one public health problem, the agency is sowing the seeds of another.

This is just one example of dozens I discovered in researching a book on the relationships between government and industry. I could also have told you about the initiatives in parks in London and throughout Britain, involving the same company, promoting exercise, or indeed of the British government creating voluntary pledges in partnership with industry instead of regulating industry. These collaborations or partnerships have become the paradigm in public health, and once again, they make sense from the point of view of industry. It allows them to frame public health problems and their solutions in ways that are least threatening to, most consonant with their commercial interests. So obesity becomes a problem of individual decision-making, of personal behavior, personal responsibility and lack of physical activity. It is not a problem, when framed this way, of a multinational food system involving major corporations.

And again, I don't blame industry. Industry naturally engages in strategies of influence to promote its commercial interests. But governments have a responsibility to develop counterstrategies to protect us and the common good.

The mistake that governments are making when they collaborate in this way with industry is that they conflate the common good with common ground. When you collaborate with industry, you necessarily put off the table things that might promote the common good to which industry will not agree. Industry will not agree to increased regulation unless it believes this will stave off even more regulation or perhaps knock some competitors out of the market. Nor can companies agree to do certain things, for example raise the prices of their unhealthy products, because that would violate competition law, as we've established. So our governments should not confound the common good and common ground, especially when common ground means reaching agreement with industry.

I want to give you another example, moving from high-profile collaboration to something that is below ground both literally and figuratively: the hydraulic fracturing of natural gas. Imagine that you purchase a plot of land not knowing the mineral rights have been sold. This is before the fracking boom. You build your dream home on that plot, and shortly afterwards, you discover that a gas company is building a well pad on your land. That was the plight of the Hallowich family. Within a very short period of time, they began to complain of headaches, of sore throats, of itchy eyes, in addition to the interference of the noise, vibration and the bright lights from the flaring of natural gas. They were very vocal in their criticisms, and then they fell silent. And thanks to the Pittsburgh Post-Gazette, where this image appeared, and one other newspaper, we discovered why they fell silent. The newspapers went to the court and said, "What happened to the Hallowiches?" And it turned out the Hallowiches had made a secret settlement with the gas operators, and it was a take-it-or-leave-it settlement. The gas company said, you can have a six-figure sum to move elsewhere and start your lives again, but in return you must promise not to speak of your experience with our company, not to speak of your experience with fracking, not to speak about the health consequences that might have been revealed by a medical examination. Now, I do not blame the Hallowiches for accepting a take-it-or-leave-it settlement and starting their lives elsewhere. And one can understand why the company would wish to silence a squeaky wheel. What I want to point the finger at is the legal and regulatory system, a system in which there are networks of agreements just like this one which serve to silence people and seal off data points from public health experts and epidemiologists, a system in which regulators will even refrain from issuing a violation notice in the event of pollution if the landowner and the gas company agree to settle. This is a system which isn't just bad from a public health point of view; it exposes hazards to local families who remain in the dark.

Now, I have given you two examples not because they are isolated examples. They are examples of a systemic problem. I could share some counterexamples, the case for example of the public official who sues the pharmaceutical company for concealing the fact that its antidepressant increases suicidal thoughts in adolescents. I can tell you about the regulator who went after the food company for exaggerating the purported health benefits of its yogurt. And I can tell you about the legislator who despite heavy lobbying directed at both sides of the aisle pushes for environmental protections. These are isolated examples, but they are beacons of light in the darkness, and they can show us the way.

I began by suggesting that sometimes we need to engage in conflict. Governments should tussle with, struggle with, at times engage in direct conflict with corporations. This is not because governments are inherently good and corporations are inherently evil. Each is capable of good or ill. But corporations understandably act to promote their commercial interests, and they do so either sometimes undermining or promoting the common good. But it is the responsibility of governments to protect and promote the common good. And we should insist that they fight to do so. This is because governments are the guardians of public health; governments are the guardians of the environment; and it is governments that are guardians of these essential parts of our common good.

Thank you.

(Applause)