- Chris Jochnick1
1 Legal Director, Center for Economic and Social Rights (CESR). This paper is based on the experience and ideas of the directors and staff of CESR developed over four years of work in the field.
The end of the Cold War represented a seminal moment for the human rights movement. In less than three decades of active campaigning, non-governmental advocates had made human rights a common and powerful language and could claim no small part in the widespread attention to civil liberties and democratic reforms in countries throughout Latin America, Africa, Asia and Eastern Europe. But if the expansion of freedom and democracy represented a victory for human rights, it has also served to underscore the dangers of equating civil and political rights with human dignity. The enduring and pervasive poverty suffered by close to two billion people across the globe stands as an inescapable rebuke to those ready to celebrate the “age of rights.”
The human rights movement has much to offer the struggle against poverty, but it must first move beyond its unnecessarily narrow vision of human rights. The domination of Western non-governmental organizations (NGOs) and governments has produced a model of human rights advocacy that is limited in two fundamental ways: first to civil liberties, and second to state action.2 While the first limitation has been widely criticized3 and an increasing number of NGOs are addressing economic, social and cultural rights (ESCR), the singular focus on state actors endures. This focus fails to address the roots of many violations (particularly violations of ESCR) which increasingly lie beyond national borders.
This paper suggests a fuller interpretation of human rights obligations to make them more relevant and truer to international realities. Moving human rights beyond its state-centric paradigm will potentially serve two purposes. First, it will challenge the reigning neo-liberal extremism that infects much of the public discourse about development and poverty, providing a rhetoric and vision to suggest that entrenched poverty is neither inevitable nor acceptable. Second, it will provide a legal framework with which to begin holding these other actors more accountable for their role in creating and sustaining poverty.
The three most dominant sectors neglected by the state-centric vision of human rights are transnational corporations (TNCs), international financial institutions (IFIs), and third party states (3PS)4. This paper will outline the role of these other sectors in ESCR violations and the extent to which they are accountable to human rights instruments. The focus on impacts and accountability is meant to demonstrate both the importance and the legal basis for broadening human rights advocacy to address additional actors.
2 This paper will not address the many historical reasons for these biases in the movement, nor the pragmatic reasons that continue to restrain many advocates. For two recent commentaries on these trends, see Matua, Makau, Human Rights Ideology, 36 U.Va. Int’l L. J. 589 (1996); and Bolívar, Legia, Derechos Económicos, Sociales y Culturales: Derribar Mitos, Enfrentar Retos, Tender Puentes: una Visión desde la (in)Experiencia de América Latina, in (Cançado, Antonio, ed.) Estudios Basicos de Derechos Humanos, vol. V (IIDH, 1996).
3 The interdependence and equal importance of civil, political, economic, social and cultural rights is affirmed in the Universal Declaration of Human Rights and the twin Covenants the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). See e.g. Proclamation of Teheran, art. 13, UNGA Res. 32/130 (1977).
4 Third party states is meant to describe all other states beyond the one in question.
Some years ago, the Center for Economic and Social Rights undertook an investigation of the human impacts of oil development in the Ecuadorian Amazon. The investigation initially set out to focus on the government’s human rights obligations despite the fact that it was a private company, Texaco, that was responsible for the brunt of the damage.5
For decades, the affected Amazon communities had suffered Texaco’s abuses largely in silence, having been repeatedly told, both explicitly and implicitly, that they had no rights against the oil company, that the damage was a natural and inevitable price to pay for the country’s development. Human rights offered these communities a rare alternative to the dominant discourse, guaranteeing them a right to a healthy environment that was clearly being violated by Texaco’s regular dumping of toxic wastes into their water supplies.6
When CESR met with these communities, there was little sympathy for the legal nuance that private companies are technically immune to human rights claims, that they don't sign covenants, that the government bears the responsibility to ensure these rights. In their eyes, Texaco was the villain. Texaco had operated for years in the Amazon as practically a government unto itself, had annual earnings four times the size of Ecuador’s GNP, and had the active support of the U.S. government. Even had the Ecuadorian government been disposed to control the company, few believed it could.
Under the circumstances, CESR’s intended approach risked the uncomfortable prospect of doing more harm than good. Insisting solely on governmental obligations would obscure the true nature of the violation, reinforce Texaco’s impunity, and most importantly, detract from the community’s long-overdue sense of injustice and resolve.
As the heir to an international legal system dating back to the 1600s, the human rights regime is based on the enduring principle of state responsibility. International law has long been considered the exclusive province of state actors – treaties existed to govern relations between states. The establishment of human rights instruments was revolutionary in the sense that it recognized a new subject of international law – private individuals. But this recognition was limited largely to individuals as the holders of rights, with states still considered the principle, if not exclusive, holder of duties.7
The distinction was premised on a notion of the state as the ultimate guardian of the welfare of its population. As described by the Commission on Global Governance:
When the United Nations system was created, nation-states, some of them imperial powers, were dominant. Faith in the ability of governments to protect citizens and improve their lives was strong. Moreover the state had few rivals. The world economy was not as closely integrated as it is today. the vast array of global firms and corporate alliances that has emerged was just beginning to develop. the huge global capital market, which today dwarfs even the largest national capital markets, was not foreseen.8
Half a century ago, governments had far more control over the political, social, and economic conditions within their countries. States had the responsibility of guaranteeing human rights on the presumption that they, and they alone, were capable of doing so.
The narrow focus of human rights law on state responsibility is not only out of step with current power relations, it tends to obscure them. The exclusive concern with national governments distorts the reality of the growing weakness of national-level authority, serving to shield other actors from greater responsibility. It also creates a false sense of rigidity or inevitability about social and political hierarchies and existing inequities.9 International human rights law perpetuates the notion that private actors are -- and by implication, should be -- only accountable to states (not individuals) and that other states are --and should be -- only accountable to their own populations.10
The real potential of the human rights lies in its ability to change the way people perceive themselves vis a vis the government and other actors. Rights rhetoric provides a mechanism for reanalyzing and renaming “problems” as “violations,” something that needn't and shouldn't be tolerated. As explained by Paulo Freire, the move beyond a "consciousness of internalized subordination," is the first step in the decision to take action.11 Rights make it clear that violations are neither inevitable nor natural, but arise from deliberate decisions and policies. In their demand for explanations and accountability, human rights expose the hidden priorities and structures behind violations. Thus, the demystification of human rights, both in terms of their economic and social content, and their applicability to non-state actors, constitutes a critical step towards challenging the conditions that create and tolerate poverty.
5 The Inter-American Commission on Human Rights has just released a report of its investigation of this issue. OAS - IACHR, Report on the Situation of Human Rights in Ecuador Doc. 10, rev.1, (D.C., 1997).
6 See Center for Economic and Social Rights, Rights Violations in the Ecuadorian Amazon: the Human Consequences of Oil Development, (1994).
7 One prominent scholar puts the rise of human rights and self-determination into the following context: “The two great doctrines have subverted the very foundations of the world community by introducing changes, adjustments and realignments to many political and legal institutions… To be sure, they have not changed the actual structure of that community or the main rules of the game. Sovereign states have remained the true holders of power; each powerful state continues in the main to deal with national interests. Nevertheless, the two doctrines have introduced the seeds of subversion into this framework, destined sooner or later to undermine and erode the traditional structures and institutions, and gradually to revolutionize those structures and institutions.” Cassesse, Antonio, Human Rights in a Changing World 13 (1990).
8 Commission on Global Governance, Our Global Neighborhood 3 (1995).
9 The psychological and sociological affects of such legal distinctions as state/individual, public/private have been described by scholars associated with Critical Legal Studies. See e.g.Klare, Karl, The Public Private Distinction in Labor Law, Univ. Penn. L. R. 1358, 1417 (1982) (“The primary effect of the public/private distinction is to inhibit the perception that the institutions in which we live are the product of human design and can therefore be changed”); See also Trimble, Philip, Review Essay: International Law, World Order, and Critical Legal Studies, 42 Stan. L. Rev. 811 (1990); Jochnick, Chris & Normand, Roger The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Int’l L. J. 49 (1994).
10 Feminist scholars have gone far towards debunking the public/private distinction in human rights: “A reason often given in considering atrocities to women not human rights violations, politically or legally, is that they do not involve acts by states. They happen between non-state actors, in civil society. … But the state is not all there is to power. To act as if it is produces an exceptionally inadequate definition for human rights when so much of the second class status of women, from sexual objectification to murder, is one by men to women prior to express state involvement.” Catherine MacKinnon, On torture: A Feminist Perspective on Human Rights in Kathleen Mahoney and P. Mahoney (eds.), Human Rights in the Twenty-First Century 21 (1993).
11 See generally, Freire, Paulo, Pedagogy for the Oppressed (Herder and Herder, 1970).
A broader conception of human rights is consistent with their original foundation in human dignity. International law generally is understood to be based on a mix of customary practice and consent. States are either bound to those norms that achieve the distinction of customary law or those they explicitly consent to through treaties. However, human rights law has in large measure defied these narrow categories by suggesting an additional foundation – human dignity.
Human dignity makes certain claims on all other actors, state and non-state, regardless of custom or consent. The Universal Declaration of Human Rights and the twin covenants do not merely recognize those rights considered customary or previously consented to, but those derived “from the inherent dignity of the human person.”12 As Profesor Henkin explains:
The international system, having identified contemporary human values, has adopted and declared them to be fundamental law, international law. But in a radical derogation from the axiom of “sovereignty,” that law is not based on consent: at least it does not honor or accept dissent, and it binds particular states regardless of their objection… [nor] is it based on ancient axioms, or on traditional natural law, or on Roman law; it is not based on “custom” or on state practice at all.13
This is significant insofar as the emphasis on the human person places human rights beyond the narrowness of particular treaties or at a minimum suggests a broad interpretation of these treaties and their corresponding duties. Human rights obligations linked to human dignity may be violated by a host of actors; the exclusive focus on the state must be viewed as pragmatic or contingent, rather than necessary.
Despite common perception to the contrary, international law has long contemplated duties for non-state actors. 14 Early treaties outlawing piracy and slavery were clearly directed at private parties.15 The 1948 Genocide Convention declares that “persons committing genocide … shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.”16 The Nuremberg Tribunal lent strong support to this principle by trying both state actors and private individuals: "international law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal when done by a private individual
All of the major human rights treaties contemplate both private and state duties. As the Universal Declaration states: “The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall … promote respect for these rights and freedoms…”20 The American Declaration of the Rights and Duties of Man (as suggested by the name) is even clearer about private duties: “The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man.”21 The covenants reaffirm the obligations of individuals: "the individual, having duties to other individuals and to the community to which he[sic] belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant."22
C. Global Changes Supporting a Broader Human Rights Vision
Over the past half century, the vision of the powerful state sovereign has become increasingly anachronistic. Today’s governments are besieged by a host of outside actors over whom they have ever decreasing capacity to control.23 Rapid privatization, free trade agreements, economic integration, and the explosion of TNCs, have tremendously limited government prerogatives, particularly among the smaller, developing countries.24
No longer … can states pretend to be autonomous. The most important forces that affect people’s lives are global in scale and consequences. Even the most powerful states recognize serious global constraints on their capacity to affirm their own national interest above all else
The global changes limiting state capacities are particularly relevant to the field of ESCR.26 While civil liberties and formal political rights are generally consistent with the demands of the market place, ESCR are often at odds.27 Neo-liberal reforms have gradually whittled away at state authority over economic and social spheres. Human welfare and the environment have been increasingly left to the vagaries of the market, with governments playing almost a secondary role in trying to ensure basic levels of welfare for their populations.28 The UN Special Rapporteur on ESCR describes the changes in these terms:
The flurry of many States romantically to embrace the market as the ultimate solution to all of society’s ills, and the corresponding rush to denationalize and leave economics, politics and social matters to the whims of the private sector, although the theme of the day, will inevitably have an impact upon the full realization of economic, social, and cultural rights.29
12 Preamble of ICESCR and ICCPR. “The American states have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality," American Declaration, Intro.
13 Louis Henkin, Sibley Lecture: Human Rights and State “Sovereignty,” 25 Ga. J. Int’l & Comp. L. 31, 38 (1994).
14 For a broad discussion of the application of human rights to non-state actors, see Chapman, Andrew, Human Rights in the Private Sphere 89-133 (1993); Paust, Jordan J., The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv. Human Rts. J. 51 (1992).
15 See Paust, id. at 51-58.
16 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Feb. 23, 1989) art. 4.
20 Universal Declaration of Human Rights, preamble.
21 The American Declaration, Preamble. The Declaration elaborates specific duties of the individual in articles 19-38. See comparable articles in both the African Charter on Human and Peoples’ Rights (arts. 27-29) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 17).
22 Preamble, ICCPR and ICESCR.
23 For a legal analysis of the implications of recent global changes, see Grossman, Claudio & Bradlow, Daniel Are We Being Propelled Towards a People-Centered Transnational Order?, 9 Am. U.J. Int’l L. & Pol’y 1(1993); Matthews, Jessica, The Age of Non-State Actors, Foreign Affairs, (Jan/Feb, 1997) (“The absolutes of the Westphalian system – territorially fixed states where everything of value lies within some state’s borders; a single secular authority governing each territory and representing it outside its borders; and no authority above states -- are all dissolving.”).
24 See generally, Global Dreams, Richard Barnet & John Cavanagh (1995).
26 Perhaps most strikingly in the assumption of free market reformers that short-term suffering is necessary for long-term growth, and that growth alone will provide for the general welfare. As the UN Committee on ESCR cautions, “full realization of human rights can never be achieved as a mere by-product, or fortuitous consequence, of some other developments, no matter how positive. For that reason, suggestions that the full realization of economic, social and cultural rights will be a direct consequence of, or will automatically flow from the enjoyment of civil and political rights are misplaced.” UN Doc. E/1993/22, Annex III.
27 While the positive/negative distinction between CPR and ESCR should not be exaggerated, the promotion of ESCR would seem to require a stronger state with greater resources. Moreover, the legal norms and most powerful institutions governing international relations are more amenable to CPR than ESCR.
28 Certainly, these reforms have often brought economic growth, but it is growth without any guarantees for the general welfare of the population, and just as often the poorest sectors been left even further impoverished. See UNDP, Human Development Reports, 1990 - 1996; Juan Luis Londoño, Poverty, Inequality, and Human Capital Development in Latin America, 1950-2025, (World Bank Latin American and Caribbean Studies, 1996). This is not to overlook essential factors in exacerbating poverty fully under the control of the state, such as corruption and poor planning.
29 Türk, Danilo The Realization of Economic, Social and Cultural Rights: Final Report E/CN.4/Sub.2/1992/16 ¶27 (1992).
As state authority declines, human rights advocates must look to those sectors that have rushed in to fill the void. Non-state actors and third party governments play a direct and indirect role in a wide range of human rights violations, and their responsibilities have been alluded to in a growing number of human rights resolutions and legal codes. These instruments provide a starting point from which to seek more concrete obligations.
The regulation of TNCs is perhaps the most pressing task for the promotion of ESCR. Most developing countries face individual corporations with revenues many times larger than their domestic economies. TNCs account for more than half of the top one hundred economies in the world, 30 and a mere 300 of them are estimated to control a quarter of the world’s productive assets.31 Grouped together in trade associations, with the active support of the industrial countries in which they are headquartered, TNCs exercise an inordinate influence over local laws and policies. Their impact on human rights ranges from a direct role in violations (i.e. abuses of employees or the environment) to indirect support of governments guilty of violations. The conduct of TNCs can similarly have dramatic impact on poverty, either by directly impacting human welfare (e.g. denying communities the ability to feed themselves) or influencing relevant government policies and laws (e.g. relating to land, agriculture, technology, employment, subsidies).
TNCs pose a difficult issue for human rights advocates because of the fact that they are already subject to domestic regulation. Corporations are established through special grants of their incorporating countries and are presumably subject to all of the national laws under which they operate. 32 To the extent that private businesses are involved in violations, most human rights advocates would look to the government’s failure to regulate. But, the power and elusiveness of TNCs pose special problems that require more direct application of rights standards. These standards may either come through international treaty or more refined codes of conduct for industries, individual companies, or contractors.
TNCs are reachable indirectly through the government's obligations to “protect” human rights.33 As explained by the Inter-American Court of Human Rights, a state violates the rights of its citizens “when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.”34 The obligation to protect ESCR requires that governments effectively regulate private parties like TNCs through legislation and enforcement.35 The fact that corporate abuses are often systematic and in many ways sanctioned by the state, make these violations ripe for examination by human rights bodies.
The limitations to this approach have prompted numerous efforts to bring TNCs under international law. Going back almost thirty years, codes of conduct have been developed by inter-governmental and non-governmental groups.36 Unfortunately, none of these codes has proved effective beyond a very limited sphere of corporate activities. The UN Commission on Transnational Corporations spent twenty years drafting and negotiating a comprehensive code for TNCs.37 While the code was never adopted, its human rights provisions are relevant insofar as they were the product of lengthy consideration and achieved consensus among the drafters:38
- Transnational Corporations should respect the social and cultural objectives, values and traditions of the countries in which they operate…
- Transnational Corporations shall respect human rights and fundamental freedoms in the countries in which they operate…
- In their social and industrial relations, transnational corporations shall not discriminate on the basis of race, color, sex, religion, language, social, national and ethnic origin or political or other opinion.39
Recent international conferences and UN body resolutions continue to push for human rights and environmental accountability from corporations. The Rio Declaration and the Copenhagen Declaration on Social Development both underscore the responsibilities of TNCs with regard to the development and the environment.40 The UN Secretary General has stated that TNCs have a duty to promote the right to development,41 and both the UN General Assembly and the Commission on Human Rights have addressed the need for TNCs to promote human rights, and urged them to avoid causing violations.42 While specific duties have yet to be elaborated at this level, these various resolutions and declarations evince a continuing interest in applying rights obligations directly to corporations.43
In recent years, individual corporations, industry associations, and NGOs have developed codes of conduct covering various human rights issues, (though rarely by name). These codes have covered a range of activities from working conditions, wages, free association, child labor, discrimination, and environmental pollution, to investment in countries deemed gross violators of human rights. While there is promise in some of these efforts, they carry a risk of legitimating (and thereby facilitating) existing practices as much as restraining them.44 The fact that the codes are voluntary and largely established through TNC initiative has tended to preclude them from impinging significantly on corporate interests, and certainly not sufficiently to address the massive violations of ESCR in which TNCs play a role.
A great deal of attention has been devoted to the human rights impacts of IFIs like the World Bank45 and International Monetary Fund (IMF). These institutions play a vital role in the ability of governments to provide for the general welfare of their populations, and the projects they fund often directly implicate both CP and ESCR violations. Their potential for violations is directly related to the tremendous influence they exercise over the economies of developing countries: the World Bank is the largest source of international funding for development programs, and the imprimatur of the IMF is often the critical condition for access to other sources of funding and investment.
Structural adjustment packages (SAPs) demanded by both the World Bank and the IMF often have widespread, and serious impacts on human welfare.46 The UN Special Rapporteur on ESCR lists the following components of SAPs that threaten human rights: (a) devaluation of local currency, (b) decrease of government expenditure on public services, © abolition of price controls, (d) imposition of wage controls, (e) reduction of trade and foreign exchange controls, (f) restrictions on domestic credit, (g) reduction of the role of the state in the economy, (h) increase the basis for the export economy (i) decreasing imports, and (j) privatization of public enterprises. These policies have been particularly devastating to vulnerable sectors of the population, such as the poor, women, and children.47 Additionally, many of the development projects funded by the Bank have involved gross human rights abuses, including forced evictions.48
Beyond the substantive impacts, IFI involvement in development decisions often move the locus of decision-making further from affected communities, making policies less transparent, participatory, and accountable to traditional democratic processes. Negotiations with the IMF over debt reduction and structural adjustment programs (SAPs) with broad ramifications for development policies are almost exclusively carried out behind closed doors with only the involvement of the finance ministries.49 The Special Rapporteur’s study of IFIs concludes that “the relative decline of national sovereignty and domestic control over local economic processes and resources and the corresponding growth in the level to which the international financial agencies directly influence domestic policy decisions are clearly aspects of the adjustment process which conclusively affect economic, social, and cultural rights.”50
While the Bank and IMF readily concede their impact on human rights, they have refused to hold themselves accountable to human rights standards. They have justified this policy on the basis of their constitutive charters which arguably limit their mandate to the consideration of “economic” factors – distinguishing human rights concerns as “political.”51 .
While these limitations have provided the Bank and the IMF defense against CPR obligations, they pose no ostensible limitation to ESCR obligations. 52 On the contrary, both the Bank and the IMF increasingly consider poverty alleviation and a number of related welfare concerns (even going so far as issues of income distribution) to be central to their missions. These goals are well supported by the respective Articles of Agreement . The Bank’s authorized purposes include promoting “the long-range balanced growth of international trade
As “specialized agencies” of the United Nations, the Bank and the IMF are obligated to promote the UN’s human rights mission56 and as international organizations they are at least responsible for not violating customary international law relating to human rights.57 The UN Committee on Economic, Social, and Cultural Rights has underscored the human rights obligations of these institutions: “the international agencies should scrupulously avoid involvement in projects which, for example, involve the use of forced labour or large-scale evictions or displacement of persons…58 International financial institutions promoting measures of structural adjustment should ensure that such measure do not compromise the enjoyment of the right to adequate housing.”59
These obligations have been further highlighted and bolstered by recent UN conferences, all of which have made explicit reference to IFIs urging them to “assess the impact of their policies and programmes on the enjoyment of human rights”60 and underscoring their “special responsibility”61 to promote human rights through international cooperation.62 The UN Commission on Human Rights has also issued a number of recent resolutions touching on IFI responsibilities.63
As the world grows smaller and more tightly integrated, it is inevitable that states will play an increasingly important role in human rights violations beyond their borders. The impact of third party states comes through a variety of channels, including sanctions, development and military assistance, debt negotiations, trade agreements, and diplomatic relations. States may also be implicated in violations abroad relating to actors or activities emanating from within their borders (e.g. environmental contamination or TNCs).
The United Nations was established to promote international cooperation and this intent informs all of the major human rights documents.64 The UN Charter calls on members to take “joint and separate action” to promote the following UN purposes: “higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health, and related problems; and universal respect for, and observance of, human rights.”65 The Universal Declaration on Human Rights recognizes that “everyone, as a member of society … is entitled to the realization, through national effort and international co-operation … of economic, social, and cultural rights.” The ICESCR underscores the "essential importance of international assistance and cooperation" particularly in relation to the right to food.66
The UN Committee on ESCR has made it clear that development assistance and cooperation are matters of human rights: “The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international co-operation for development and thus for the realizations of economic, social and cultural rights is an obligation of all States.”67
Obligations relating to international cooperation are further bolstered by the UN Declaration on the Right to Development, which speaks of both private and state duties:68
All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfillment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development. … States have the primary responsibility for the creation of national and international conditions favorable to the realization of the right to development.69
The Working Group on the Right to Development underscored that the Declaration “should have a decisive influence not only on the domestic policies, but also on the foreign policies of States, either in their bilateral relations or in their contribution to regional and multilateral cooperation.”70
These clauses are bolstered by regional legal regimes that further tie the fates and obligations of neighboring countries. The OAS Charter proclaims the "consolidation on this continent of a system
Analogous obligations are contained in humanitarian law holding third party states responsible for the welfare of other civilian populations. Among these provisions, occupying countries are required to “facilitate the care and education of children" and to ensure the availability of "foodstuffs, medical stores, and other articles" for the civilian population under their control.72 Additionally, all parties to a conflict must ensure that their activities do not disproportionately harm non-combatants and must safeguard the free passage of medical supplies and foodstuffs for civilians.
Governments have recognized some of these obligations by incorporating them into foreign assistance and trade relations. By law (if rarely in practice) US trade and foreign assistance is conditioned on an array of CPR, and some labor rights.73 The European Union’s conditions on development assistance cover a fuller range of human rights:
Cooperation shall be directed towards development centered on man, the main protagonist and beneficiary of development, which thus entails respect for and promotion of all human rights. The rights in question are all human rights, the various categories thereof being indivisible and inter-related … civil and political rights; economic, social and cultural rights.”74
Governments are also under obligation to respect ESCR in their multilateral assistance, particularly those countries with significant influence.75 The Maastricht Guidelines, one of the most authoritative texts on the ICESCR, holds: “the obligations of states extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members.”76
States also have obligations relating to the activities of TNCs head-quartered under their jurisdiction. The Charter of Economic Rights and Duties of States provides that “states should cooperate with each other in the exercise of every state to regulate and supervise the activities of TNCs within its national jurisdiction and take measures to ensure that such activities comply with its law, rules and regulations and conform with its economic and social policies…”77 The Maastricht guidelines state that “the obligation to protect includes the State’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social, and cultural rights.” (emphasis added).78
30 Tony Clarke Mechanisms of Corporate Rule, in Mander & Goldsmith The Case against the Global Economy 298 (Sierra Club Books, 1996); Anderson, Sarah & Cavanagh, John, The Top 200: The Rise of Global Corporate Power, (Institute for Policy Studies, 1996)
31 The Economist, Mar. 27, 1993, at 5-6, cited in Barnet & Cavanagh, supra note 24.
32 It is worth noting that originally the license to establish a corporation was considered a privilege that bound the incorporaters to conduct business in a socially-conscious manner. As one U.S. court declared in 1809, if the applicants purpose “is merely private or selfish; if it is detrimental to, or not promotive of, the public good, they have no adequate claim upon the legislature for the privileges.” Supreme Court of Virginia, cited in Grossman & Adams, Exercising Power over Corporations Through State Charters in Mander & Goldsmith, supra note 30, at 378. Today, there are only the most minimal social obligations attached to incorporation, and the governments are even less inclined to impose restrictions on TNCs operating abroad.
33 Human rights obligations are commonly broken down into three levels: “respect” (abstain from interference), “protect” (prevent others from interfering), and “fulfill” (take the necessary steps to ensure satisfaction). See UN Committee on ESCR, E/C.12/1989/SR.20 (discussion of Asbjorn Eide’s report); See also Van Hoof, The Legal Nature of Economic, Social, and Cultural Rights: A Rebuttal of Some Traditional Views, in Alston, Philip and Tomasevski, Katarina (eds.) The Right to Food (1985) (including the additional duty to promote).
34 Velasquez Rodriguez v. Honduras (1989) 28 ILM 291, ¶166. See also Case 7615 Inter-Am. C.H.R. OEA/ser. L./V./11.66, doc. 10 rev. 1 (state accountable for violations against Yanomami Indians caused by private persons). The Inter-American Commission has also recently held the Cuban government responsible for deaths caused by the acts of a private shipping company (decision not yet released).
35 See Craven, Matthew The International Covenant on Economic, Social and Cultural Rights 109-114 (Oxford, 1995).
36 Codes have been produced by the ILO, the OECD, the EEC, the OAS, the ICC, and the ICFTU, among others. See generally, P.T. Muchlinski, Multinational Enterprises and the Law (1995).
37 Development and International Economic Co-operation: Transnational Corporations, UN ESCOR, 2d Sess., UN Doc. E/1990/94 (1990) (“UN Draft Code of Conduct”).
38 See generally, Frey, Barbara The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights, 6 Minn. J. Global Trade 153 (1997).
39 UN Draft Code of Conduct, at 7. The word choice of “shall” and “should” reflects a prioritization of human rights principles over cultural concerns.
40 See e.g. Agenda 21 chap 30, ¶30.1; and, A/CONF. 166/9, ¶12(e)).
41 E/CN.4/1421 (1980).
42 UNGA resolution 42/115; Commission on Human Rights resolutions 1987/18 and 1988/19.
43 The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities has recently begun to focus attention on TNCs and human rights. See resolutions 1995/34, 1996/39.
44 Spence, G. With Justice for None 277 (1988) ("Most see the in-house ethics efforts of corporations being adopted more for public relations than for the good of the public. The truth is, corporations are no more capable of acting ethically than they are of acting lovingly.");
45 Reference to the World Bank is intended to include both the International Bank for Reconstruction and Development and the International Development Association.
46 As one former Bank official states, “everything we did from 1983 onward was based on our new sense of mission to have the south ‘privatised’ or die; towards this end we ignominiously created economic bedlam in Latin America and Africa.” Davison Budhoo, cited in Moller, Diana, Intervention, Coercion, or Justifiable Need? A Legal Analysis of Structural Adjustment Lending in Costa Rica, 2 Sw. J. of L. & Trade Am. 483, 504 (1995).
47 Türk, Danilo The Realization of Economic, Social and Cultural Rights: Second Progress Report E/CN.4/Sub.2/1991/17, ¶113-165 (1992).
48 See generally, Rich, Bruce, Mortgaging the Earth: the World Bank, Environmental Impoverishment, and the Crisis of Development (Beacon Press, 1994).
49 See Bradlow, Daniel, The World Bank, the IMF, and Human Rights, 6 Trans. L. & Contemporary Probs. 47, 77, 78 (1996)
50 Türk, supra note 47, at ¶42
51 “The Bank and its officers shall not interfere in the political affairs of any member… Only economic considerations shall be relevant” Bank Articles of Agreement, art IV, sec. 10; “respect the domestic social and political policies of members, and in applying these principles.. pay due regard to the circumstances of members.” IMF Articles of Agreement, art IV, sec. 3(b). The Bretton Woods institutions (the Bank and the IMF) were originally conceived as the “economic” partner to the “political” UN institution. However, both institutions have already broadened the interpretation of economic consideration to include “good governance” and environmental concerns on the grounds that these issues have economic impacts. The Inter-American Development Bank charter contains similar provisions against considering human rights. The European Bank for Reconstruction and Development, on the other hand, considers human rights to be central to its purposes.
52 “While there are limits on the possible extent to which the Bank can become involved with human rights, especially those of civil and political nature, the Bank certainly can play, and has played, within the limits of its mandate, a very significant role in promoting various economic and social rights… The right to development is one right which the World Bank has been promoting throughout its history.” I. Shihata, The World Bank and Human Rights: An Analysis of the Legal Issues and the Record of Achievements, 17 Den. J. Int’l L. & Pol’y, 48-49 (1988). There are strong arguments for rejecting these interpretations against CPR. See e.g. Skogly, Sigrun, Structural Adjustment and Development: Human Rights – An Agenda for Change, 15 Hum Rts Q. 751 (1993), Rajagopal, Balakrishnan Crossing the Rubicon: Synthesizing the Soft International Law of the IMF and Human Rights, 11 Bos. U. Int’l L. J. 81 (1993).
56 The actual level of obligation is ambiguous because of the status of the World Bank and the IMF as both “specialized agencies” and “independent international organizations,” (intentionally immunizing them to some extent from UN influence). See Skogley, supra note 52.
57[57] Derek W. Bowett, The Law of International Institutions, (4th ed. 1982) (cited in Bradlow, supra note 49 at 47).
58 U.N. Committee on ESCR, General Comment #2, ¶6.
59 U.N. Committee on ESCR, General Comment #4, ¶19
60 The Vienna Declaration and Program of Action (A/CONF. 157/23, Part II, ¶2)
61 Agenda 21, U.N. Doc. A/CONF.151/26 (volIII) ¶38.41
62 See generally Copenhagen Declaration on Social Development.
63 Commission on Human Rights, res. 1993/12, and res. 1994/11.
64 See e.g. UNGA Resolutions 1316 (XIII) (12/12/58); 2158 (XXI) (11/25/66); 3281 (XXIX) (12/12/74) (cited in Advisory Committee on Human Rights and Foreign Policy, Netherlands Ministry of Foreign Affairs Report #18: Economic, Social and Cultural Human Rights 28, 29 (1994) (concluding that “an obligation to provide international aid may in general be said to exist when another State is no longer capable of independently realising the absolute minimum norms of ESC rights.”).
65 UN Charter arts. 55 and 56.
66 ICESCR, art. 11. Third party state obligations are reaffirmed in the Universal Declaration on the Eradication of Hunger and Malnutrition (1974) (“all countries and primarily the highly industrialized countries... should make all efforts to disseminate the results of their research work to Governments and scientific institutions of developing countries” ... parties should cooperate to promote “a more equitable and efficient distribution of food between countries" and to "improve access to markets.")
67 UN Committee on ESCR, General Comment, #3, ¶14 (1990).
68 UN Declaration on the Right to Development, UNGA Res. 41/128 of 4 December 1986. The president of the International Court of Justice calls the right to development “the core right from which all others stem… In reality the international dimension of the right to development is nothing other than the right to an equitable share in the economic and social well-being of the world. It reflects an essential demand of our time since four fifths of the world’s population no longer accept that the remaining fifth should continue to build its wealth on their poverty.” Debjaoui, Mohammed, The right to Development” cited in Steiner and Alston, supra note 25 at 1117. See also the Copenhagen Declaration on Social Development ¶17©; Charter of Economic Rights and Duties of States, art 2(2)(b) (“States should cooperate in the exercise of the right of every State to regulate and supervise the activities of TNCs within its national jurisdiction”).
69 Declaration, arts. 2(2), 3(1).
70 E/CN.4/1995/27, ¶71.
72 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, arts. XXIII, L.
73 Sec. 502B of the Foreign Assistance Act of 1961 as amended, 22 USCA sec. 2304; The Trade and Tariff Act of 1984 lists the following items covered by the Act: right of association, right to organize and bargain collectively, a prohibition on the use of any form of forced or compulsory labor; a minimum age for the employment of children, and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health. 98 Stat. 3018, 19 U.S.C. 2101, Title V, sec. 503.
74 Fourth ACP-EEC Convention, Dec. 1, 1989, 29 I.L.M. 783, art. 5 (1990). The Lomé Conventions govern trade cooperation, foreign aid, and technical assistance of the European Community. The European Community operates under the principle that measures against a government “should avoid penalizing the population of the country in question and particularly its poorest sections.” See Marantis, Demetrios Human Rights, Democracy, and Development: The European Community Model, 7 Harv. Hum. Rts. J. 1 (1994).
75 For instance, in the World Bank’s weighted voting scheme, a few individual countries like the United States can exercise decisive influence.
76 Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, (Jan. 1997). The Maastricht Guidelines were elaborated by a group of more than thirty experts under the auspices of the International Commission of Jurists, the Urban Morgan Institute on Human Rights, and the Centre for Human Rights of the Faculty of Law of Maastricht University. Under U.S. law, Executive Directors to multilateral development banks are prohibited from voting for any action or proposed loan that would have a significant effect on the human environment, unless an environmental impact assessment has been provided to the Director by the Bank at least 120 days in advance of the vote and a comprehensive summary is provided to the public. Pelosi Amendment; other legislation covers human rights and poverty, though only weakly; 22 U.S.C. sec. 262d (1994).
77 Charter, art. 2(2)(b).
78 The Maastricht Guidelines, ¶18 (1997).
While this array of treaties, declarations, and resolutions demonstrates the interest and potential of bringing human rights to bear on NS3PS actors, real progress awaits more concrete acknowledgment of legal accountability. Non-state actors are only too eager to trumpet the importance of human rights and their particular contribution to promoting them, but they will rarely if ever broach actual human rights obligations. The literature of the World Bank is replete with details about its role in promoting ESCR, but never with a hint of legal obligation.79 TNCs are equally adept at appropriating the language of human rights to their benefit. The whole concept of human rights is undermined by the notion that institutions will promote them at their own discretion.
Defining a human right as such allows for a process of developing reciprocal duties, monitoring conduct, and holding actors accountable. Codes of conduct, policy directives, and legislation must be tied to the larger framework of human rights in order to ensure their positive and integrated contribution to human development and to imbue them with the necessary sense that rights and obligations derive from human dignity, and not generosity or whim.
Beyond pushing for explicit acknowledgment of accountability, the challenge for human rights advocates lies with the elaboration of specific duties. Towards that end, the following principles should be considered:
First, responsibility should correspond roughly to an actor’s influence and proximity to violations. The human rights system allots near total responsibility to the state based on its presumed control over violations. To the extent that other actors have assumed much of this influence and control they should assume some of the corresponding duties. The U.S. Supreme Court’s recognition of state-like obligations for certain private corporations with state-like authority provides an illuminating example.80 Likewise, humanitarian law places responsibility on non-state forces and outside countries based on their influence and control over the welfare of occupied or threatened populations; and international law implicates states in the activities of terrorist groups that they harbor or finance. The International Court of Jurist’s decision holding the United States government responsible for the acts of the Contras was based on the government’s proximity and degree of influence over this group’s violations of Nicaraguan sovereignty.81 Such cases suggest interesting parallels to state responsibility for the legalization, head-quartering, subsidization, and general promotion of TNCs abroad.
Second, all parties must be held to the most basic level of obligation, that of “respect.”82 At a minimum, the UN Charter and the various human rights treaties require that states and the specialized agencies ensure that their economic and political relations with other countries do not significantly threaten the ability of a country to provide for its population and do not encourage or facilitate violations: As the UN Committee on ESCR states:
Many activities undertaken in the name of “development” have subsequently been recognized as ill-conceived and even counter-productive in human rights terms. In order to reduce the incidence of such problems, the whole range of issues dealt with in the Covenant should, wherever possible and appropriate, be given specific and careful consideration.”83
The duty to respect must be understood to encompass government initiatives and activities that play a significant role in violations. Free trade agreements that fail to incorporate human rights concerns, foreign assistance that has negative impacts on certain sectors of the population, structural adjustment programs, excessive debt repayment schedules, and facilitating TNC activities without also strengthening controls, may all implicate this duty to respect. Given the dramatic and growing gap between the richest and poorest countries, the duty to respect implicates a wide range of state policies that undergird the current global economy.84
Third, given the lack of legal precedents and guidelines, procedural obligations – transparency, monitoring, impact statements, consultation, participation, remedies – may provide the most effective starting point for advocacy around ESCR generally, and particularly with NS3PS actors.85 At some level, these obligations are less threatening (requiring impact statements and an accounting, for example) and more critical (for their capacity to bring affected populations into the process of defining and ensuring rights) than the other substantive components of ESCR.
79 The Bank’s submission to the World Conference on Human Rights is typical. In thirteen pages devoted to the importance of human rights and the many ways in which the Bank “is helping developing countries to make the enjoyment of economic and social human rights a reality” there is a studious avoidance of legal obligation. World Bank, The World Bank and the Promotion of Human Rights, A/Conf.157/PC/61/Add.19 (1993)
80 These cases have involved first amendment free speech rights trumping the corporation’s private property rights. See e.g. Marsh v. Alabama 326 U.S. 501 (1946).
81 Case Concerning Military and Paramilitary Activities in and against Nicaragua, Judgment of 27 June 1986, ICJ Rep. ¶ 107-109. The Inter-American Commission has recently held the Cuban government responsible for deaths caused by the acts of a private shipping company.
82 See supra note 33; Eide, Asbjørn Right to Adequate Food as a Human Right (1989).
83 UN Committee on ESCR, General Comment #2, ¶7
84 See generally report of UN Special Rapporteur on Income Distribution, José Bengoa, Provisional report on the relationship between the enjoyment of human rights, in particular economic, social and cultural rights, and income distribution E/CN.4/Sub.2/1996/14 (1996) (showing that global percentage of GDP of richest 20% of countries has risen from 89.3% to 92.4% while poorest 20% has fallen from 0.13% to 0.7%).
85 The Bank has taken significant steps in terms of impact studies, consultations, access to information, and even some accountability (though not tied to human rights). The IMF, by contest, remains highly insular and continues to negotiate its agreements with only the participation of the finance ministries and Central Bank. See Bradlow, supra note 57.
The move away from state actors will be resisted by the many powerful interests that benefit from the relative immunity provided by narrow conceptions of human rights. However, in a world of growing poverty and marginalization, the constituency for a broader and truer vision of human rights grows ever larger and (thanks to new communications technology) ever more united. For the human rights regime to remain relevant to this constituency it must be free to challenge the full range of actors that currently threaten human dignity.