Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights

by Chris Jochnick

from Human Rights Quarterly 21.1 (1999) 56-79

Chris Jochnick is the former Legal Director, Center for Economic and Social Rights
(CESR). This article is based on the experience and ideas of the directors
and staff of CESR, developed over four years of work in the field.

I. Introduction

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 also underscores the dangers of equating civil and political rights
with human dignity. The enduring and pervasive poverty suffered by well
over a billion people across the globe stands as an inescapable rebuke to
those ready to celebrate the "age of rights." ^{href="#_ftn1"
name="_ftnref1">1}

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 nongovernmental
organizations (NGOs) and governments has produced a model of human rights
advocacy that is limited to civil liberties and state action. ^{href="#_ftn2"
name="_ftnref2">2} While the narrow focus on civil
liberties has been widely criticized and an increasing number of NGOs are
now addressing economic, social, and cultural rights (ESCR), the singular
focus on state action endures. This focus fails to address the roots of
many violations — particularly violations of ESCR — that increasingly lie
beyond national borders.

This article suggests a fuller interpretation of human
rights obligations, making 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 the most influential
non-state actors — corporations, financial institutions, and third-party
states ^{href="#_ftn3"
name="_ftnref3">3} — more accountable for their role in creating and
sustaining poverty. This article will outline the role of these sectors in
ESCR violations and the extent to which they are governed by human rights
instruments. The focus on impact and accountability is meant to
demonstrate the importance of, and the legal basis for, broadening human
rights advocacy to address additional actors.




name="_ftn1">¹ UNDP, Human Development Report 2, 88 (1998)
(citing latest world development indicators).

name="_ftn2">² This article will not address the many historical
reasons for these biases in the movement, nor the pragmatic reasons that
continue to restrain many advocates. For recent commentaries on these
trends, see Makau Matua, Human Rights Ideology, 36 U. Va. Int'l
L.J. 589 (1996); Legia Bolivar, Derechos Economicos, Sociales y
Culturales: Derribar Mitos, Enfrentar Retos, Tender Puentes: una Vision
desde la (in)Experiencia de America Latina, in 5 Estudios Basicos
de Derechos Humanos (Instutito Interamericano de Derechos Humanos ed.,
1996). See also Chris Jochnick, A New Generation of Human Rights
Activism, Human Rights Dialogue: Carnegie Council, Sept. 1997,
at 3-5 (citing examples of NGOs addressing economic, social, and cultural
rights).

name="_ftn3">³ The term third-party states is meant to describe all
other states beyond the one in question.

II. Background to the Problem of Global Poverty

A. The Center for Economic and Social Rights
in Ecuador

Some years ago, the Center for Economic and Social Rights
(CESR) undertook an investigation of the impact of oil development on
humans in the Ecuadorian Amazon. ^{href="#_ftn4"
name="_ftnref4">4} The investigation initially focused on the
government's human rights obligations despite the fact that a private
company, Texaco, was responsible for the brunt of the damage. ^{href="#_ftn5"
name="_ftnref5">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
and that the damage was a natural and inevitable price to pay for the
country's development. ^{href="#_ftn6"
name="_ftnref6">6} 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.
^{href="#_ftn7"
name="_ftnref7">7}

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 do not sign covenants
guaranteeing human rights, and that only the state is responsible for
ensuring these rights. ^{href="#_ftn8"
name="_ftnref8">8} In the communities' eyes, Texaco was the villain.
^{href="#_ftn9"
name="_ftnref9">9} Texaco had operated for years in the Amazon as
practically a state unto itself, with annual global earnings four times
the size of Ecuador's GNP and the active support of the US government.
^{href="#_ftn10"
name="_ftnref10">10} Even if the Ecuadorian government had been
disposed to control the company, few believed it could. ^{href="#_ftn11"
name="_ftnref11">11}

Under these 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 communities' long-overdue sense of injustice and resolve.

B. The Principle of State Responsibility as
the Basis for the Human Rights Regime

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. ^{href="#_ftn12"
name="_ftnref12">12} International law has long been considered the
exclusive province of state actors, as treaties, the primary instruments
of international law, 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. ^{href="#_ftn13"
name="_ftnref13">13}

The distinction between individuals as the holders of
rights and states as the holders of duties was premised on a notion of the
state as the ultimate guardian of its population's welfare. 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. ^{href="#_ftn14"
name="_ftnref14">14}

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. ^{href="#_ftn15"
name="_ftnref15">15}

C. The Impact of Traditional Interpretations:
The Legitimization of the Status Quo

The narrow focus of human rights law on state
responsibility is not only out of step with current power relations, but
also tends to obscure them. The exclusive concern with national
governments not only distorts the reality of the growing weakness of
national-level authority, but also shields other actors from greater
responsibility. The focus on state responsibility also creates a false
sense of rigidity or inevitability about social and political hier-archies
and existing inequities. ^{href="#_ftn16"
name="_ftnref16">16} International human rights law perpetuates the notions 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.
^{href="#_ftn17"
name="_ftnref17">17}

The real potential of human rights lies in its ability to
change the way people perceive themselves vis-à-vis the government
and other actors. Rights rhetoric provides a mechanism for reanalyzing and
renaming "problems" as "violations," and, as such, something that need not
and should not 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. ^{href="#_ftn18"
name="_ftnref18">18} Rights make it clear that violations are neither
inevitable nor natural, but arise from deliberate decisions and policies.
By demanding 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.

name="_ftn4">⁴ See Center for Economic and Social Rights,
Rights Violations in the Ecuadorian Amazon: The Human Consequences of Oil
Development 1 (1994).

name="_ftn5">⁵ The Inter-American Commission on Human Rights has just
released a report of its investigation of this issue. Report on the
Situation of Human Rights in Ecuador, Inter-Am. Comm'n on Hum. Rts.,
O.A.S. Doc. OEA/Ser.L/V/11.96, doc.10 rev.1 (1997).

name="_ftn6">⁶ See Center for Economic and Social Rights,
supra note 4, at x.

name="_ftn7">⁷ See id. at 6. See also Additional
Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights ("Protocol of San Salvador"),
OEA/Ser.P/ XVIII.O.2, art. 11 (1989) (guaranteeing the right to a healthy
environment); African Charter on Human and Peoples' Rights, adopted
26 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, art. 26 (entered into
force 21 Oct. 1986), reprinted in 21 I.L.M. 58 (1982)
(providing examples of treaties guaranteeing the right to a healthy
environment).

name="_ftn8">⁸ See Center for Economic and Social
Rights, supra note 4, at 3.

name="_ftn9">⁹ See id. at x.

name="_ftn10">¹⁰ See id. at 22.

name="_ftn11">¹¹ See id. at 28.

name="_ftn12">¹² For information on the international legal system
dating back to the 1600s, see generally H. Lauterpacht, The Grotian
Tradition in International Law, 23 Brit. Y.B. Int'l L. 1
(1946). For information on the principle of state responsibility, see
generally Rosalyn Higgins, International Law and How We Use
It 39-46 (1996).

name="_ftn13">¹³ 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.

Antonio Cassesse, Human Rights in a Changing World
13 (1990).

name="_ftn14">¹⁴ Commission on Global Governance, Our Global
Neighborhood 3 (1995).

name="_ftn15">¹⁵ See Higgins, supra note 12, at
39-55, 146-59 (elaborating on the definition of "actors" under
international law, and state responsibility).

name="_ftn16">¹⁶ The psychological and sociological effects of such
legal distinctions as state/individual and public/private have been
described by scholars associated with Critical Legal Studies. See
Karl Klare, The Public/Private Distinction in Labor Law, 130 U.
Pa. L. Rev. 1358, 1417 (1982) ("The primary effect of the
public/private distinction is thus to inhibit the perception that the
institutions in which we live are the product of human design and can
therefore be changed."); see also Phillip R. Trimble, Review
Essay: International Law, World Order, and Critical Legal
Studies, 42 Stan. L. Rev. 811 (1990); Chris Jochnick &
Roger Normand, The Legitimation of Violence: A Critical History of the
Laws of War, 35 Harv. Int'l L.J. 49 (1994).

name="_ftn17">¹⁷ 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 Human Rights in the
Twenty-First Century: A Global Challenge 21 (Kathleen Mahoney &
Paul Mahoney eds., 1993).

name="_ftn18">¹⁸ Paulo Freire, Pedagogy of the Oppressed (Myra
Bergman Ramos trans., The Seabury Press 1970).

III. Basis for a Broader Vision

A. Rooting Human Rights in Human Dignity

A broader conception of human rights is consistent with
their original foundation in human dignity. ^{href="#_ftn19"
name="_ftnref19">19} International law generally is understood to be
based on a mix of customary practice and consent. States are either
bound by those norms that achieve the distinction of
customary law or those that 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 actors, state
and non-state, regardless of custom or consent. The Universal Declaration
of Human Rights and the twin covenants of 1966 do not merely recognize
those rights that are considered customary or to which states have
previously consented, but also acknowledge those rights derived "from the
inherent dignity of the human person." ^{href="#_ftn20"
name="_ftnref20">20} As one leading jurist 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. ^{href="#_ftn21"
name="_ftnref21">21}

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. Thus human rights obligations linked to human
dignity may be violated by a host of actors including non-parties to the
treaties; the exclusive focus on the state must be viewed as pragmatic and
contingent, rather than necessary.

B. Legal Support for a Broader Vision of
Human Rights

Despite common perception to the contrary, international
law has long contemplated duties for non-state actors. ^{href="#_ftn22"
name="_ftnref22">22} Early treaties outlawing piracy and slavery were clearly directed at private parties. ^{href="#_ftn23"
name="_ftnref23">23} The imposition of duties on private parties is
also found in the 1948 Genocide Convention, which declares that "persons
committing genocide . . . shall be punished, whether they are
constitutionally responsible rulers, public officials or private
individuals." ^{href="#_ftn24"
name="_ftnref24">24} 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. . . . The
application of international law to individuals is no novelty." ^{href="#_ftn25"
name="_ftnref25">25} The 1950 Principles of the Nuremberg Charter and
Judgment state: "Any person who commits an act which constitutes a crime
under international law is responsible therefor and liable to punishment."
^{href="#_ftn26"
name="_ftnref26">26} The Geneva Conventions also contain a minimum set
of obligations applicable to all parties to a conflict, regardless of
their status as state or non-state actors. ^{href="#_ftn27"
name="_ftnref27">27}

Likewise, 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." ^{href="#_ftn28"
name="_ftnref28">28} 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." ^{href="#_ftn29"
name="_ftnref29">29} Both the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) 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." ^{href="#_ftn30"
name="_ftnref30">30}

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 an have
ever-decreasing capacity to control. Rapid privatization, free trade
agreements, economic integration, and the explosion of transnational
corporations (TNCs) have tremendously limited government prerogatives,
particularly among the smaller, developing countries.

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 . . . . [T]he organization of
political life within a fragmented system of states appears to be
increasingly inconsistent with emerging realities. ^{href="#_ftn31"
name="_ftnref31">31}

The global changes limiting state control are
particularly relevant to the field of ESCR. ^{href="#_ftn32"
name="_ftnref32">32} While civil liberties and formal political rights
are generally consistent with the demands of the market place, ESCR are
often at odds with these demands. ^{href="#_ftn33"
name="_ftnref33">33} 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. 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. ^{href="#_ftn34"
name="_ftnref34">34}

The application of human rights laws to non-state actors
is thus well supported under international law, and is all the more
critical to today's world. Not surprisingly then, the movement to apply
human rights to these actors, thought nascent, is already underway.

name="_ftn19">¹⁹ For examples of human rights' original foundation in
human dignity, see Universal Declaration of Human Rights, adopted
10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., (Resolutions,
part 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 Am. J.
Int'l L. Supp. 127 (1949) [hereinafter UDHR]; International Covenant
on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200
(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, pmbl., U.N. Doc. A/6316
(1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976)
[hereinafter ICCPR]; International Covenant on Economic, Social and
Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N.
GAOR, 21st Sess., Supp. No. 16, pmbl., U.N. Doc. A/6316 (1966), 993
U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR].

name="_ftn20">²⁰ ICCPR, supra note 19, pmbl.; ICESCR,
supra note 19, pmbl. "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." See also American Declaration
of the Rights and Duties of Man, signed 2 May 1948,
OEA/Ser.L/V/II.71, Introduction (1988) [hereinafter American Declaration].

name="_ftn21">²¹ Louis Henkin, Sibley Lecture: Human Rights and
State "Sovereignty," 25 Ga. J. Int'l & Comp. L. 31, 38
(1994).

name="_ftn22">²² For a broad discussion of the application of human
rights to non-state actors, see Andrew Clapham, Human Rights in the
Private Sphere 89-133 (1993). See also Jordan J. Paust,
The Other Side of Right: Private Duties Under Human Rights Law, 5
Harv. Hum. Rts. J. 51 (1992).

name="_ftn23">²³ See Paust, supra note 22, at
56-57.

name="_ftn24">²⁴ Convention on the Prevention and Punishment of the
Crime of Genocide, adopted 9 Dec. 1948, 78 U.N.T.S. 277, art. IV
(entered into force 12 Jan. 1951) (entered into force for
U.S. 23 Feb. 1989).

name="_ftn25">²⁵ Transcript of Proceedings, Nuremberg Tribunal, 41
Am. J. Int'l L. Supp. 172 (1947). The 1945 Charter of the
International Military Tribunal (IMT), reprinted in The Laws of
Armed Conflicts: A Collection of Conventions, Resolutions, and Other
Documents 825 (Deitrich Schindler & Jiri Toman eds., 1988),
enshrined the idea that individuals have duties under international law.
See Affirmation of the Principles of International Law Recognized by
the Charter of the Nuremberg Tribunal, U.N. GAOR, G.A. Res. 95(1),
U.N. Doc. A/64/Add.1, at 188 (1947).

name="_ftn26">²⁶ Principles of International Law Recognized in the
Charter of the Nurmeburg Tribunal and in the Judgment of the Tribunal,
adopted 2 Aug. 1950, princ. 1, U.N. Doc.A/1316, reprinted in
2 Y.B. Int'l L. Comm'n 374 (1950).

name="_ftn27">²⁷ Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field (Geneva I),
adopted 12 Aug. 1949, 6 U.S.T. 3114, T.I.A.S. No. 3362, 75 U.N.T.S.
31, (entered into force 21 Oct. 1950) (entered into force for
the U.S. 2 Feb. 1956); Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (Geneva II), opened for signature 12 Aug. 1949, 6 U.S.T. 3217,
T.I.A.S. No. 3363, 75 U.N.T.S. 85 (entered into force 21 Oct. 1950)
(entered into force for U.S. 2 Feb. 1956); Geneva Convention
Relative to the Treatment of Prisoners of War (Geneva III), adopted
12 Aug. 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135
(entered into force 21 Oct. 1950) (entered into force for the
U.S. 2 Feb. 1956); Geneva Convention Relative to the Protection of
Civilian Persons in Time of War (Geneva IV), adopted 12 Aug. 1948,
6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 (entered into
force 21 Oct. 1950) (entered into force for U.S. 2 Feb. 1956)
[hereinafter Geneva Conventions]. The legal obligations of "dissident
armed forces or other organized armed forces" were later expanded through
Protocol II Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed
Conflicts, adopted 8 June 1977, art. 1, ¶ 1, U.N. Doc. A/32/144,
1125 U.N.T.S. 513 (entered into force 7 Dec. 1978), reprinted
in 16 I.L.M. 1442 (1977).

name="_ftn28">²⁸ UDHR, supra note 19, pmbl.

name="_ftn29">²⁹ American Declaration, supra note 19, pmbl. The
American Declaration elaborates specific duties of the individual in
Articles 19-38. Id. See comparable articles in both the
African Charter on Human and Peoples' Rights, supra note 7, arts.
27-29 and Article 17 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, opened for signature 4
Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force
3 Sept. 1953).

name="_ftn30">³⁰ ICCPR, supra note 19, pmbl.; ICESCR,
supra note 19, pmbl.

name="_ftn31">³¹ R.B.J. Walker & Saul H. Mendlovitz,
Interrogating State Sovereignty, in Contending Sovereignties:
Redefining Political Community 1 (R.B.J. Walker & Saul H.
Mendlovitz eds., 1990), cited in Henry Steiner & Philip
Alston, International Human Rights in Context 151 (1996).

name="_ftn32">³² This is perhaps most striking 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.

Statement to the World Conference on Human Rights in
Behalf of the Committee in Economic, Social and Cultural Rights, U.N.
ESCOR, Comm'n on Econ., Soc. & Cult. Rts., 7th Sess., Supp. No. 2, at
82, ¶ 3, U.N. Doc. E/1993/22E/C.12/1992/2, Annex III (1993).

name="_ftn33">³³ While the positive/negative distinction between civil
and political rights (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.

name="_ftn34">³⁴ Danilo Türk, Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, The Realization of Economic, Social and Cultural Rights
(Final Report), U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on
Prevention of Discrimination and Protection of Minorities, 44th Sess.,
Provisional Agenda Item 8, at 27, ¶ 98, U.N. Doc. E/CN.4/Sub.2/1992/16
(1992) [hereinafter Türk Report].

IV. Human Rights and the Impact of Non-State and Third-Party State Actors

As state authority declines, human rights advocates must
look to those sectors that have filled the void. Non-state actors and
third-party states 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. ^{href="#_ftn35"
name="_ftnref35">35} These instruments provide a starting point from
which to seek more concrete obligations that attach to non-state actors,
like TNCs and IFIs, as well as to third-party states.

A. Transnational Corporations


The regulation of TNCs is perhaps the most pressing task
for the promotion of ESCR. Most developing countries face individual TNCs
with revenues many times larger than their domestic economies. TNCs
account for almost half of the top one hundred economies in the world,
^{href="#_ftn36"
name="_ftnref36">36} and a mere 200 of them are estimated to control a
quarter of the world's productive assets. ^{href="#_ftn37"
name="_ftnref37">37} Grouped together in trade associations with the
active support of their home countries, TNCs exercise an inordinate
influence over local laws and policies. Their impact on human rights
ranges from a direct role in violations, such as abuses of employees or
the environment, to indirect support of governments guilty of widespread
repression. ^{href="#_ftn38"
name="_ftnref38">38} The conduct of TNCs can also have a dramatic
impact on poverty, either by directly undermining human welfare (e.g.
limiting a community's access to land or food) or influencing relevant
government policies and laws (e.g. relating to agriculture, technology,
employment, subsidies).

Corporations are established through special grants of
their incorporating countries and are presumably subject to all of the
national laws under which they operate. ^{href="#_ftn39"
name="_ftnref39">39} To the extent that private businesses are involved
in violations, most advocates would look to the
government's failure to regulate. TNCs are thereby reachable indirectly
through the government's obligations to "protect" human rights. ^{href="#_ftn40"
name="_ftnref40">40} 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." ^{href="#_ftn41"
name="_ftnref41">41} The obligation to protect ESCR requires that
governments effectively regulate private parties like TNCs through
legislation and enforcement. ^{href="#_ftn42"
name="_ftnref42">42} The fact that corporate abuses are often
systematic and in many ways sanctioned by the state makes these violations
ripe for examination by human rights bodies.

However, the overwhelming political and economic
influence of TNCs requires more direct application of rights standards.
^{href="#_ftn43"
name="_ftnref43">43} These standards may either come from international
treaties or specific codes of conduct for industries or individual
companies.

There have been numerous efforts to bring TNCs under
international law. Thirty years ago, inter-governmental and
nongovernmental groups were already developing codes of conduct for TNCs.
^{href="#_ftn44"
name="_ftnref44">44} Unfortunately, none of these codes has proved
effective beyond a very limited sphere of corporate activities. More
recently, the UN Commission on Transnational Corporations produced a
comprehensive code for TNCs after twenty years of drafting and
negotiating. ^{href="#_ftn45"
name="_ftnref45">45} While the code was never adopted, its human rights
provisions are relevant insofar as they are the product of lengthy
consideration, and consensus, among the drafters. ^{href="#_ftn46"
name="_ftnref46">46} These human rights provisions mandate, among other
things, that

[t]ransnational corporations should respect
the social and cultural objectives, values and traditions of the
countries in which they operate. . . . ^{href="#_ftn47"
name="_ftnref47">47} 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, colour, sex, religion,
language, social, national and ethnic origin or political or other
opinion. ^{href="#_ftn48"
name="_ftnref48">48}

Recent international conferences and UN body resolutions
continue to push for human rights and environmental accountability from
corporations. For example, the Rio Declaration ^{href="#_ftn49"
name="_ftnref49">49} and the Copenhagen Declaration on Social
Development ^{href="#_ftn50"
name="_ftnref50">50} both underscore the responsibilities of TNCs with
regard to development and the environment. In
addition the UN Secretary General has stated that TNCs have a duty to
promote the right to development. ^{href="#_ftn51"
name="_ftnref51">51} Likewise, both the UN General Assembly ^{href="#_ftn52"
name="_ftnref52">52} and the Commission on Human Rights ^{href="#_ftn53"
name="_ftnref53">53} have addressed the need for TNCs to promote human
rights and prevent further violations. While specific duties have yet to
be elaborated, these various resolutions and declarations evince a
continuing interest in applying rights obligations directly to
corporations. ^{href="#_ftn54"
name="_ftnref54">54}

Additional efforts have been made by individual
corporations, industry associations, and NGOs to develop codes of conduct
covering various human rights, though rarely by name. ^{href="#_ftn55"
name="_ftnref55">55} These codes have covered a range of activities
from working conditions, wages, free association, child labor,
discrimination, environmental pollution, and investment in countries
deemed gross violators of human rights. While there is promise in some of
these efforts, they carry a risk of legitimizing, and thereby
facilitating, existing practices as much as restraining them. The fact
that the codes are voluntary and largely established through corporate
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. ^{href="#_ftn56"
name="_ftnref56">56}

B. International Financial Institutions

A great deal of attention has been devoted to the human
rights impacts of IFIs like the World Bank ^{href="#_ftn57"
name="_ftnref57">57} and the International Monetary Fund (IMF). These
institutions play a vital role in the ability of governments, particularly
those of developing countries, to provide for the general welfare of their
popula-tions. For example, 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. ^{href="#_ftn58"
name="_ftnref58">58} In addition, the projects they fund often directly
implicate violations of both civil and political rights (CPR) and ESCR.
Their potential for violations is directly related to the tremendous
influence they exercise over the economies of developing countries.

Structural adjustment packages (SAPs) demanded by both
the World Bank and the IMF often have widespread, serious impacts on human
welfare. ^{href="#_ftn59"
name="_ftnref59">59} 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) increasing basis
for the export economy; (i) decreasing imports; and (j) privatization of
heretofore public enterprises. ^{href="#_ftn60"
name="_ftnref60">60}

These policies have been particularly devastating to
vulnerable sectors of the population, such as the poor, women, and
children. ^{href="#_ftn61"
name="_ftnref61">61} Additionally, many of the development projects
funded by the World Bank have involved gross human rights abuses,
including forced evictions. ^{href="#_ftn62"
name="_ftnref62">62}

Beyond the substantive impacts, IFI involvement in
development decisions often moves 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 over SAPs, both of which
have broad ramifications for development policies, are almost exclusively
carried out behind closed doors with only the
involvement of the finance ministries. ^{href="#_ftn63"
name="_ftnref63">63} 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."
^{href="#_ftn64"
name="_ftnref64">64}

While the World 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." ^{href="#_ftn65"
name="_ftnref65">65}

However, while these charter limitations provide the Bank
and the IMF with a defense against CPR obligations, they pose no
ostensible limitation to ESCR obligations. ^{href="#_ftn66"
name="_ftnref66">66} On the contrary, both the World Bank and the IMF
increasingly consider poverty alleviation and a
number of related welfare concerns (even going so far as to consider
issues of income distribution) to be central to their missions. ^{href="#_ftn67"
name="_ftnref67">67} As the President of the World Bank forcefully
declared at last year's meeting of the World Bank and the IMF: "We must
address the issues of long-term equitable growth on which prosperity and
human progress depend . . . . We must focus on social issues . . . if we
do not have greater equity and social justice, there will be no political
stability and without political stability no amount of money put together
in financial packages will give us financial stability." ^{href="#_ftn68"
name="_ftnref68">68} These goals are well supported by the respective
Articles of Agreement. For example, the World Bank's authorized purposes
include promoting "the long-range balanced growth of international trade .
. . thereby assisting in raising productivity, the standard of living and
conditions of labor in their territories." ^{href="#_ftn69"
name="_ftnref69">69} The IMF's charter refers to the "expansion and
balanced growth of international trade" and the "promotion and maintenance
of high levels of employment and real income." ^{href="#_ftn70"
name="_ftnref70">70} Since the early 1990s, the IMF has described its
goals as "high quality" growth, which the Managing Director contrasts with
"growth at the expense of the poor or the environment." ^{href="#_ftn71"
name="_ftnref71">71}

As specialized agencies of the United Nations, the World
Bank and the IMF are obligated to promote the UN's human rights mission,
and as international organizations they are at least responsible for not
violating customary international human rights law. "[B]oth institutions
[the IMF and the World Bank], like any other United Nations body or any
other subject of international law, are bound by the Charter of the United
Nations and have a duty to respect the postulates formulated in the
Preamble to the Charter . . . the objectives of the Organization in the
area of international economic and social cooperation (Arts. 55 and 56),
specific provisions aimed at their realization and which are contained in
the Charter as well as in other international instruments including, inter
alia, the International Covenants on Human Rights, international
conventions, including the international labour conventions, and
resolutions and declarations of the United Nations." ^{href="#_ftn72"
name="_ftnref72">72} The UN Committee on Economic,
Social and Cultural Rights has underscored the human rights obligations of
these institutions, noting that "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," ^{href="#_ftn73"
name="_ftnref73">73} and that "[i]nternational financial institutions
promoting measures of structural adjustment should ensure that such
measures do not compromise the enjoyment of the right to adequate
housing." ^{href="#_ftn74"
name="_ftnref74">74}

These obligations are further highlighted and bolstered
by recent UN conferences that have made explicit reference to IFIs, urging
them to "assess . . . the impact of their policies and programmes on the
enjoyment of human rights" ^{href="#_ftn75"
name="_ftnref75">75} and underscoring their "special responsibility"
^{href="#_ftn76"
name="_ftnref76">76} to promote human rights through international
cooperation. ^{href="#_ftn77"
name="_ftnref77">77} Additionally, the UN Commission on Human Rights
has recently issued a number of resolutions touching on IFI
responsibilities. ^{href="#_ftn78"
name="_ftnref78">78}

C. Third-Party States

Inevitably, as the world grows smaller and more tightly
integrated, 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 also may be implicated in
violations abroad relating to actors, such as TNCs, or activities
emanating from within their borders, such as environmental contamination.
^{href="#_ftn79"
name="_ftnref79">79}

Recognizing that third-party states have impacts beyond
their borders, several human rights instruments and bodies have been
established to govern the consequences. The United Nations itself was
established to promote international cooperation, and this intent is found
in all of the major human rights documents. ^{href="#_ftn80"
name="_ftnref80">80} For example, the UN Charter calls on members to
take "joint and separate action" ^{href="#_ftn81"
name="_ftnref81">81} to promote the following UN purposes: "(A) higher
standards of living, full employment, and conditions of economic and
social progress and development; (B) solutions of international economic,
social, health, and related problems; . . . and © universal respect for,
and observance of, human rights." ^{href="#_ftn82"
name="_ftnref82">82} In addition, the Universal Declaration of Human
Rights recognizes that "[e]veryone, as a member of society . . . is
entitled to [the] realization, through national effort and international
co-operation . . . of []economic, social and cultural rights." ^{href="#_ftn83"
name="_ftnref83">83} Similarly, the ICESCR underscores the "essential
importance of international co-operation" particularly in relation to the
right to food. ^{href="#_ftn84"
name="_ftnref84">84} Finally, the UN Committee on Economic, Social, and
Cultural Rights has made it clear that development assistance and
cooperation are matters of human rights, stating that

[t]he 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 law, international
co-operation for development and thus for the realizations of economic,
social and cultural rights is an obligation of all States. ^{href="#_ftn85"
name="_ftnref85">85}

Obligations relating to international cooperation are
further bolstered by the UN Declaration on the Right to Development,
^{href="#_ftn86"
name="_ftnref86">86} which speaks of both private and state duties:

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 ^{href="#_ftn87"
name="_ftnref87">87} . . . . States have the primary responsibility
for the creation of national and international conditions favorable to
the realization of the right to development. ^{href="#_ftn88"
name="_ftnref88">88}

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." ^{href="#_ftn89"
name="_ftnref89">89}

These international provisions are bolstered by regional
legal regimes that further tie the fates and obligations of neighboring
countries. For example, the OAS Charter proclaims the "consolidation on
this continent . . . of a system . . . based on
respect for the essential rights of man" ^{href="#_ftn90"
name="_ftnref90">90} and describes the "spiritual unity of the
continent" ^{href="#_ftn91"
name="_ftnref91">91} and the need for "close cooperation" ^{href="#_ftn92"
name="_ftnref92">92} in promoting the "fundamental rights of the
individual without distinction as to . . . nationality." ^{href="#_ftn93"
name="_ftnref93">93}

Analogous obligations are contained in those provisions
of humanitarian law that hold third-party states responsible for the
welfare of other civilian populations. ^{href="#_ftn94"
name="_ftnref94">94} For example, under one such provision, occupying
countries are required to "facilitate . . . the care and education of
children" ^{href="#_ftn95"
name="_ftnref95">95} and to ensure the availability of "foodstuffs,
medical stores, and other articles" for the civilian population under
their control. ^{href="#_ftn96"
name="_ftnref96">96} 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. ^{href="#_ftn97"
name="_ftnref97">97}

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 civil and political rights, and some labor rights. ^{href="#_ftn98"
name="_ftnref98">98} The European Community conditions development
assistance on 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." ^{href="#_ftn99"
name="_ftnref99">99}

Governments, particularly those with significant
international influence, are also under obligation to respect ESCR in
their multilateral assistance. ^{href="#_ftn100"
name="_ftnref100">100} The Maastricht Guidelines, one of the most
authoritative texts on the ICESCR, declares that "[t]he obligations of
States to protect economic, social and cultural rights 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." ^{href="#_ftn101"
name="_ftnref101">101}

States also have obligations relating to the activities
of TNCs with headquarters 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." ^{href="#_ftn102"
name="_ftnref102">102} Furthermore, the Maastricht Guidelines state
that "[t]he 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." ^{href="#_ftn103"
name="_ftnref103">103}

name="_ftn35">³⁵ See Report of the Secretary-General,
infra note 38 (listing UN resolutions and related codes directed at
TNCs).

name="_ftn36">³⁶ See Tony Clarke, Mechanisms of Corporate
Rule, in The Case Against the Global Economy 297, 298
(Jerry Mander & Edward Goldsmith eds., 1996); see also Sarah
Anderson & John Cavanagh, The Top 200: The Rise of Global
Corporate Power (1996), available in < href="http://www.corpwatch.org/corner/glob/ips/top200.html">http://www.corpwatch.org/corner/glob/ips/top200.html>
(noting that 51 of the world's 100 largest economies are corporations).

name="_ftn37">³⁷ See Economist, 27 Mar. 1993, at
5-6, cited in Anderson & Cavanagh, supra
note 36, at n.10; see also Anderson & Cavanagh,
supra note 36, at Introduction.

name="_ftn38">³⁸ See generally The Realization of Economic, Social
and Cultural Rights: The Impact of the Activities and Working Methods of
Transnational Corporations on the Full Enjoyment of All Human Rights, in
Particular Economic, Social and Cultural Rights and the Right to
Development, Bearing in Mind Existing International Guidelines, Rules and
Standards Relating to the Subject-Matter, Report of the
Secretary-General, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on
Prevention of Discrimination and Protection of Minorities, U.N. Doc.
E/CN.4/Sub.2/1996/12 (1996) [hereinafter Report of the
Secretary-General]; Diane Orentlicher & Timothy Gelatt, Public
Law, Private Actors: The Impact of Human Rights on Business Investors in
China, 14 Nw. J. Int'l L. & Bus. 1, 66 (1993).

name="_ftn39">³⁹ It is worth noting that originally the license to
establish a corporation was considered a privilege that bound the
incorporators to conduct business in a socially-conscious manner. As one
US 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."
Richard L. Grossman & Frank T. Adams, Exercising Power over
Corporations Through State Charters, in The Case Against the Global
Economy, supra note 36, at 378 (citing the Supreme Court of
Virginia's reasoning in an unnamed 1809 case). Today, there are only the
most minimal social obligations attached to incorporation, and governments
are even less inclined to impose restrictions on TNCs operating abroad.

name="_ftn40">⁴⁰ 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 Summary Record of the 20th Meeting of
the Committee on Economic, Social and Cultural Rights, U.N. ESCOR,
Comm. On Econ., Soc. & Cult. Rts., 3d Sess., 20th Mtg., ¶ 6,
E/C.12/1989/SR.20 (1989) (discussing Asbjørn Eide's report); see
also G.J.H. van Hoof, The Legal Nature of Economic, Social, and
Cultural Rights: A Rebuttal of Some Traditional Views, in
The Right to Food 97, 107 (Philip Alston & Katarina Tomas=evski
eds., 1984) (including the additional duty to promote).

name="_ftn41">⁴¹ Velásquez Rodríguez Case, ¶ 166, Case 7920, Ser. C,
No. 4, Inter-Am. Ct. H.R. 35, O.A.S. Doc. OEA/Ser.L/V/III.19, doc. 13
(1988) (judgment of 29 July 1988), reprinted in 28 I.L.M.
291, ¶ 166. See also Case 7615, Inter-Am. Ct. H.R., O.A.S. Doc.
OEA/Ser.L/V/II.66, doc. 10 rev. 1 (10 Oct. 1985), reprinted in
Inter-Am. Y.B.H.R. 264 (1987) (holding the 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).

name="_ftn42">⁴² See Matthew Craven, The International
Covenant on Economic, Social and Cultural Rights 109-14 (1995).

name="_ftn43">⁴³ According to the UN Secretary-General, "the emergence
of an integrated international production system, increased locational
mobility of TNCs and their monopolistic and oligopolistic tendencies have
increased the bargaining power of TNCs and have been associated with a
loss of decision-making capacity by States, especially in developing
countries. Increasing pressures to compete internationally for capital,
markets and labour contribute to reducing the margin of manoeuvre
available to States." The Realization of Economic, Social and Cultural
Rights: The Relationship Between the Enjoyment of Human Rights, in
Particular, International Labour and Trade Union Rights, and the Working
Methods and Activities of Transnational Corporations, Background Document
Prepared by the Secretary-General, U.N. ESCOR, art. 99, U.N. Doc.
E/CN.4/Sub.2/1995/11 (1995).

name="_ftn44">⁴⁴ Codes have been produced by the International Labour
Organization (ILO), the Organization for Economic Cooperation and
Development (OECD), the European Economic Community (EEC), the
Organization of American States (OAS), the International Chamber of
Commerce (ICC), and the International Confederation of Free Trade Unions
(ICFTU), among others. See generally Peter Muchlinski,
Multinational Enterprises and the Law (1995). See also Legal
Problems of Codes of Conduct for Multinational Enterprises 407-49
(Norbert Horn ed., 1980).

name="_ftn45">⁴⁵ Development and International Economic
Co-operation: Transnational Corporations, Letter Dated 31 May 1990 from
the Chairman of the Reconvened Special Session of the Commission on the
Transnational Corportation to the President of the Economic and Social
Council, U.N. ESCOR, Comm'n on Transnat'l Corps., 2d Sess., Agenda
Item 7, U.N. Doc. E/1990/94 (1990).

name="_ftn46">⁴⁶ See generally Barbara A. Frey, The Legal and
Ethical Responsibilities of Transnational Corporations in the Protection
of International Human Rights, 6 Minn. J. Global Trade 153
(1997) (underscoring the importance of the UN Code of Conduct).

name="_ftn47">⁴⁷ Draft Code of Conduct on Transnational
Corporations, adopted 1 Feb. 1988, U.N. ESCOR, ¶ 13, U.N. Doc.
E/1988/39/Add.1 (1988).

name="_ftn48">⁴⁸ Id. ¶ 14. The word choice of "shall" and
"should" reflects a prioritization of human rights principles over
cultural concerns.

name="_ftn49">⁴⁹ Rio Declaration on Environment and Development,
adopted 13 June 1992, U.N. Con-ference on Environment and
Development, U.N. Doc. A/CONF.151/26 (vol.I) (1992), reprinted in
31 I.L.M. 874 (1992).

name="_ftn50">⁵⁰ Copenhagen Declaration on Social Development and
Programme of Action, Report of the World Summit for Social Development,
adopted 12 Mar. 1995, U.N. Doc. A/CONF.166/9 (1995) [hereinafter
Copenhagen Declaration], available in
<gopher://gopher.undp.org/70/00/unconfs/wssd/summit/off/a — 9.en>.

name="_ftn51">⁵¹ See Report of the Secretary-General, supra note
38, ¶ 80.

name="_ftn52">⁵² See The Impact of Property on the Enjoyment
of Human Rights and Fundamental Freedoms, adopted 11 Feb. 1988, G.A.
Res. 42/115, U.N. GAOR, 42d Sess., Agenda Item 105, at 2, U.N. Doc.
A/42/115 (1988).

name="_ftn53">⁵³ See Commission on Human Rights, C.H.R. Res.
1987/18; C.H.R. Res. 1988/19.

name="_ftn54">⁵⁴ 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.

name="_ftn55">⁵⁵ The most well-publicized codes include those of
Levi's, Reebok, Sears, and Philips Van-Heusen. See generally Lance
A. Compa & Tashia Hinchliffe, Private Labor Rights Enforcement
Through Corporate Codes of Conduct, 33 Colum. J. Transnat'l L.
(1995).

name="_ftn56">⁵⁶ See Gerry Spence, 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.").

name="_ftn57">⁵⁷ Reference to the World Bank is intended to include
both the International Bank for Reconstruction and Development and the
International Development Association.

name="_ftn58">⁵⁸ See Gustav Ranis, The World Bank Near the
Turn of the Century, in Global Development Fifty Years After
Bretton Woods 72-77 (Roy Culpeper et al. eds., 1997); Türk
Report, supra note 34.

name="_ftn59">⁵⁹ As one former Bank official states, "[E]verything 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 Diana E. Moller, Intervention, Coercion, or Justifiable Need?: A
Legal Analysis of Structural Adjustment Lending in Costa Rica, 2
Sw. J.L. & Trade Americas 483, 543 n.126 (1995).

name="_ftn60">⁶⁰ The Realization of Economic, Social and Cultural
Rights, Second Progress Report Submitted by Mr. Danilo Türk,
Special Rapporteur, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on
Prevention of Discrimination and Protection of Minorities, 43d Sess.,
Agenda Item 8, ¶ 85, U.N. Doc. E/CN.4/Sub.2/1991/17 (1991).

name="_ftn61">⁶¹ See id. ¶¶ 113-65.

name="_ftn62">⁶² See generally Bruce Rich, Mortgaging the
Earth: The World Bank, Environmental Impoverishment, and the Crisis of
Development (1994) (describing the history of ill-advised Bank
projects and their impact on local communities).

name="_ftn63">⁶³ See Daniel D. Bradlow, The World Bank, the
IMF, and Human Rights, 6 Transnat'l L. & Contemp. Probs.
47, 77-78 (1996).

name="_ftn64">⁶⁴ The Realization of Economic, Social and Cultural
Rights, Final Report Submitted by Mr. Danilo Türk, Special
Rapporteur, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention
of Discrimination and Protection of Minorities, U.N. Doc.
E/CN.4/Sub.2/1992/16 (1992).

name="_ftn65">⁶⁵ Articles of Agreement of the International Bank for
Reconstruction and Development, 7 Dec. 1945, art. IV, §10, 60 Stat. 1440,
2 U.N.T.S. 134, as amended, 16 U.S.T. 1942, (17 Dec. 1965) [hereinafter
IBRD Articles], available in < href="http://www.worldbank.org/html/extdr/backgrd/ibrd/arttoc.htm">http://www.worldbank.org/html/extdr/backgrd/ibrd/arttoc.htm>
("The Bank and its officers shall not interfere in the political affairs
of any member . . . . Only economic considerations shall be relevant. . .
."); Articles of Agreement of the International Monetary Fund, 27 Dec.
1945, 60 Stat. 1401, 2 U.N.T.S. 39, as amended, 20 U.S.T. 2775, art. IV, §
3(b), (1 Apr. 1978) [hereinafter IMF Articles], available in < href="http://www.imf.org/external/pubs/ft/aa/aa04.htm">
http://www.imf.org/external/pubs/ft/aa/aa04.htm#3> ("respect the
domestic social and political policies of members, and in applying these
principles . . . pay due regard to the circumstances of members"). The
Bretton Woods institutions (the IBRD 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.

name="_ftn66">⁶⁶ See Ibrahim F.I. Shihata, The World Bank and
Human Rights: An Analysis of the Legal Issues and the Record of
Achievements, 17 Denv. J. Int'l L. & Pol'y 39, 48-49
(1988).

While . . . there are limits on the possible extent to
which the World 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 human right which the World Bank has been
promoting throughout its history.

Id. There are strong arguments for rejecting these
interpretations against CPR. See Sigrun I. Skogly, Structural
Adjustment and Development: Human Rights — An Agenda for Change, 15
Hum. Rts. Q. 751 (1993); Balakrishnan Rajagopal, Crossing the
Rubicon: Synthesizing the Soft International Law of the IMF and Human
Rights, 11 B.U. Int'l L.J. 81 (1993).

name="_ftn67">⁶⁷ For information on the World Bank's consideration of
poverty alleviation, see Ibrahim F.I. Shihata, The World Bank in a
Changing World 87 (1991). See generally World Bank, Poverty
Reduction and the World Bank (1996). For information on the IMF's
consideration of welfare concerns, see Enrique R. Carrasco & M. Ayhan
Kose, Income Distribution and the Bretton Woods Institutions: Promoting
an Enabling Environment for Social Development, 6 Transnat'l L.
& Contemp. Probs. 1, 43-45 (1996).

name="_ftn68">⁶⁸ Excerpts from Remarks at Global Lenders' Talks,
N.Y. Times, 7 Oct. 1998, available in < href="http://www.nytimes.com/library/world/global/100798imf-text.html">http://www.nytimes.com/library/world/global/100798imf-text.html>.

name="_ftn69">⁶⁹ IBRD Articles, supra note 65, art. I(iii).

name="_ftn70">⁷⁰ IMF Articles, supra note 65, art. I(ii).

name="_ftn71">⁷¹ Michel Camdessus, cited in James Polak, The
Changing Nature of IMF Conditionality (Essays in International Law
Series No. 184, Sept. 1991).

name="_ftn72">⁷² Question of the Realization in All Countries of the
Economic, Social and Cultural Rights Contained in the Universal
Declaration of Human Rights and in the International Covenant on Economic,
Social and Cultural Rights, and Study of Special Problems Which the
Developing Countries Face in Their Efforts to Achieve These Human Rights:
Ways and Means to Carry out a Political Dialogue Between Creditor and
Debtor Countries in the United Nations System, Based on the Principle of
Shared Responsibility, Report of the Secretary-General, U.N. ESCOR,
Comm'n on Hum. Rts., ¶ 50, U.N. Doc. E/CN.4/1996/22 (1996).

name="_ftn73">⁷³ International Technical Assistance Measures,
General Comment No. 2, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts.,
4th Sess., ¶ 6, U.N. Doc. E/C.12/1990/23 (1990).

name="_ftn74">⁷⁴ The Right to Adequate Housing, General Comment
No. 4, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 6th Sess., ¶ 19,
U.N. Doc. E/C.12/1991/4 (1992). See also Globalization and Economic,
Social and Cultural Rights: Statement by the Committee on Economic, Social
and Cultural Rights, Comm. on Econ., Soc. & Cult. Rts. (1998)
("The Committee wishes to emphasize that international organizations, as
well as the governments that have created and manage them, have a strong
and continuous responsibility to take whatever measures they can to assist
governments to act in ways which are compatible with their human rights
obligations and to seek to devise policies and programmes which promote
respect for those rights.").

name="_ftn75">⁷⁵ Vienna Declaration and Programme of Action, U.N. GAOR,
World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part II, ¶ 2, U.N.
Doc. A/CONF.157/23 (1993), reprinted in 32 I.L.M. 1667 (1993).

name="_ftn76">⁷⁶ Report of the United Nations Conference on
Environment and Development, U.N. Conference on Environment and
Development, Agenda 21, ¶ 38.41, A/Conf.151/26 (Vol. III) (1992).

name="_ftn77">⁷⁷ See generally Copenhagen Declaration,
supra note 50.

name="_ftn78">⁷⁸ The Realization of Economic, Social and Cultural
Rights: Preliminary Set of Basic Policy Guidelines on Structural
Adjustment Programmes and Economic, Social and Cultural Rights, Report of
the Secretary-General Prepared in Pursuance of Resolution 1994/37,
U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of
Discrimination and Protection of Minorities, U.N. Doc.
E/CN.4/Sub.2/1995/10 (1995) (listing the various resolutions of the UN
bodies).

name="_ftn79">⁷⁹ See, e.g., Trail Smelter Arbitration (U.S. v.
Can.) (1941), 3 U.N.R.I.A.A. 1938 (1949).

name="_ftn80">⁸⁰ See, e.g., International Co-Operation for
Economic Development of Under-Developed Countries, G.A. Res.
13/1316(XIII), U.N. GAOR, 13th Sess., Supp. No. 18 (1958); Permanent
Sovereignty over Natural Resources, G.A. Res. 21/2158 (XXI), U.N.
GAOR, 21st Sess., Supp. No. 16 (1966); Charter of Economic Rights and
Duties of States, G.A. Res. 32/3281 (XXIX), U.N. GAOR, 29th Sess.,
Supp. No. 31 (1974), cited in Advisory Committee on Human Rights
and Foreign Policy, Netherlands Ministry of Foreign Affairs Report No. 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").

name="_ftn81">⁸¹ U.N. Charter art. 56, signed 26 June
1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into
force 24 Oct. 1945).

name="_ftn82">⁸² Id. art. 55(A)-©.

name="_ftn83">⁸³ UDHR, supra note 19, art. 22.

name="_ftn84">⁸⁴ ICESCR, supra note 19, art. 11. Third-party
state obligations are reaffirmed in the Universal Declaration on the
Eradication of Hunger and Malnutrition, adopted by World Food
Conference, Rome, U.N. Doc E/CONF.65/20, at 1, ¶¶ 2, 8, 11 (1974) ("[A]ll
countries, and primarily the highly industrialized countries . . . should
[inter alia] 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.").

name="_ftn85">⁸⁵ The Nature of States Parties Obligations,
General Comment No. 3, adopted 13-14 Dec. 1990, U.N. ESCOR, Comm.
on Econ., Soc. & Cult. Rts., 5th Sess., 49th & 50th mtgs., ¶ 14,
U.N. Doc. E/C.12/1990/8 (1990).

name="_ftn86">⁸⁶ Declaration on the Right to Development,
adopted 4 Dec. 1986, G.A. Res. 41/128, U.N. GAOR, 41st Sess., Supp.
No. 53, Agenda Item 101, at 186, U.N. Doc. A/41/53 (1987). 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.

Mohammed Bedjaoui, The Right to Development, in
International Law: Achievements and Prospects 1177, 1182 (Mohammed
Bedjaoui ed., 1991), quoted in Steiner & Alston,
supra note 33, at 1117. See also Copenhagen Declaration,
supra note 31, ¶ 17©; Charter of Economic Rights and Duties of
States, supra note 80, at 50, art. 2(2)(b) (maintaining that
states should cooperate in the exercise of the right of every state "to
regulate and supervise the activities of TNCs within its national
jurisdiction").

name="_ftn87">⁸⁷ Declaration on the Right to Development,
supra note 86, art. 2(2).

name="_ftn88">⁸⁸ Id. art. 3(1).

name="_ftn89">⁸⁹ Question of the Realization of the Right to
Development: Report of the Working Group on the Right to Development on
Its Third Session, U.N. ESCOR, Comm'n on Hum. Rts., ¶ 71, U.N. Doc.
E/CN.4/1995/27 (1994).

name="_ftn90">⁹⁰ Charter of the Organization of American States, 30
Apr. 1948, Introduction, 2 U.S.T. 2394 (entered into force 13 Dec.
1951), reprinted in 33 I.L.M. 981 (1994).

name="_ftn91">⁹¹ Id. art. 3(l).

name="_ftn92">⁹² Id.

name="_ftn93">⁹³ Id. art. 3(k). The Inter-American Commission on
Human Rights recently ruled that "conduct on the part of one state . . . [
can have] the effect of violating the rights of persons in another OAS
state." Case 10,573, Inter-Am C.H.R. (1993), reprinted in
Inter-Am Y.B.H.R. 476 (1993).

name="_ftn94">⁹⁴ See generally Geneva Conventions, supra
note 27.

name="_ftn95">⁹⁵ Geneva IV, supra note 27, art. 50.

name="_ftn96">⁹⁶ Id. art. 55.

name="_ftn97">⁹⁷ See id. art. 23.

name="_ftn98">⁹⁸ See Foreign Assistance Act of 1961 § 502(b), 22
U.S.C.A. § 2304 (1990). A 1984 amendment to the the Trade Act of 1974
incorporated the following items to be covered by the Act: "(A) right of
association; (B) right to organize and bargain collectively, © a
prohibition on the use of any form of forced or compulsory labor; (D) a
minimum age for the employment of children; and (E) acceptable conditions
of work with respect to minimum wages, hours of work, and occupational
safety and health." Pub. L. No. 98-573, 98 Stat. 3019.

name="_ftn99">⁹⁹ African, Caribbean and Pacific States-European
Economic Community Convention (Lomé IV), concluded 15 Dec. 1989,
art. 5, reprinted in 29 I.L.M. 783 (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."
Demetrios Marantis, Human Rights, Democracy, and Development: The
European Community Model, 7 Harv. Hum. Rts. J. 1 (1994).

name="_ftn100">¹⁰⁰ For instance, in the World Bank's weighted voting
scheme, a few individual countries like the United States can exercise
decisive influence.

name="_ftn101">¹⁰¹ Maastricht Guidelines on Violations of Economic,
Social, and Cultural Rights, ¶ 19 (Jan. 1997) [hereinafter
Maastricht Guidelines], reprinted in 20 Hum. Rts. Q.
691, 698 (1998). 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 for Human Rights, and
the Centre for Human Rights of the Faculty of Law of Maastricht
University. Under US 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, 103 Stat. at 2511 (codified
as amended at 22 U.S.C. § 262m-7 (1998)). Other legislation covers human
rights and poverty, though only weakly. See 22 U.S.C. § 262d
(1994).

name="_ftn102">¹⁰² Charter of Economic Rights and Duties of
States, supra note 80, art. 2(2)(b).

name="_ftn103">¹⁰³ Maastricht Guidelines, supra note 100,
¶ 18 (emphasis added).

V. Towards a Fuller Accountability

While this array of treaties, declarations, and
resolutions demonstrates the interest and potential of bringing human
rights to bear on non-state and third-party state actors, real progress
awaits more concrete acknowledgment of legal
accountability. Non-state actors are only too eager to trumpet the
importance of human rights, but they will rarely broach actual human
rights obligations. The literature of the World Bank is replete with
commentary about its role in promoting ESCR, but never suggests actual
legal obligations. ^{href="#_ftn104"
name="_ftnref104">104} TNCs are equally adept at appropriating the
language of human rights to their benefit. ^{href="#_ftn105"
name="_ftnref105">105} 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
the positive and integrated contribution of these legal obligations to
human development. Furthermore, tying legal obligations to human rights
imbues these laws 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 almost total responsibility to the state based on the presumption
that the state has control over violations. However, because other actors
have assumed much of this influence and control they should assume some of
the corresponding duties. The US Supreme Court's recognition of state-like
obligations for certain private corporations with state-like authority
provides an illuminating example. ^{href="#_ftn106"
name="_ftnref106">106} Likewise, humanitarian law places responsibility
on non-state forces and third-party states based on their influence and
control over the welfare of occupied or threatened populations. For
example, international law implicates states in the activities of
terrorist groups that they harbor or finance. Thus, the International
Court of Justice's decision holding the US government
responsible for the acts of the Nicaraguan Contras was based on the
government's proximity and degree of influence over the Contras'
violations of Nicaraguan sovereignty. ^{href="#_ftn107"
name="_ftnref107">107} Such an imposition of state responsibility
suggests interesting parallels for the legalization, headquartering,
subsidization, and general promotion of TNCs abroad.

Second, all parties must be held to the most basic level
of obligation, that of "respect." ^{href="#_ftn108"
name="_ftnref108">108} At a minimum, the UN Charter and the various
human rights treaties require that states and specialized agencies ensure
that their economic and political relations with other countries neither
significantly threaten the ability of a country to provide for its
population nor 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
[ICESCR] should, wherever possible and appropriate, be given specific
and careful consideration. ^{href="#_ftn109"
name="_ftnref109">109}

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 the facilitation of TNC activities without
corresponding controls, may all implicate this duty to respect. Given the
dramatic and growing gap between the richest and poorest countries, the
duty to respect may implicate a wide range of state policies that
undergird the current global economy. ^{href="#_ftn110"
name="_ftnref110">110}

Third, given the lack of legal precedents and guidelines,
procedural obligations, such as transparency, monitoring, impact
statements, consultation, participation, and remedies, may provide the
most effective starting point for advocacy around ESCR, particularly with
non-state and third-party state actors. ^{href="#_ftn111"
name="_ftnref111">111} Compared to other substantive components of
ESCR, these obligations, such as requiring impact statements and an
accounting, are less threatening and at the same time more crucial because
of their capacity to bring affected populations into the process of
defining and ensuring rights.




name="_ftn104">¹⁰⁴ 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, U.N.
Doc. A/Conf.157/PC/61/Add.19 (1993).

name="_ftn105">¹⁰⁵ With rising pressure from human rights advocates,
corporations have become increasingly active in supporting and promoting
human rights issues. See, e.g., the web pages of Reebok, available
in < href="http://www.reebok.com/humanrights/moore.html">http://www.reebok.com/humanrights/moore.html>
and Royal Dutch Shell, available in < href="http://www.shell.com/values/content/1,1240,1216-1228,00.html">http://www.shell.com/values/content/1,1240,1216-1228,00.html>.

name="_ftn106">¹⁰⁶ These cases have involved a requirement on the part
of corporations to respect First Amendment free speech rights even when
they infringe upon private property rights. See, e.g., Marsh v.
Alabama, 326 U.S. 501 (1946).

name="_ftn107">¹⁰⁷ Military and Paramilitary Activities (Nicar. v.
U.S.), 1986 I.C.J. 4 (27 June) ¶¶ 107-09. The Inter-American
Commission has recently held the Cuban government responsible for deaths
caused by the acts of a private shipping company.

name="_ftn108">¹⁰⁸ See supra notes 34-35 and accompanying text.

name="_ftn109">¹⁰⁹ International Technical Assistance Measures,
supra note 73, ¶ 7.

name="_ftn110">¹¹⁰ See generally Provisional Report on the
Relationship between the Enjoyment of Human Rights, in Particular
Economic, Social and Cultural Rights, and Income Distribution, Submitted
by Mr. Josè Bengoa, U.N. Special Rapporteur on Income Distribution,
U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on the Prevention of
Discrimination and Protection of Minorities, 48th Sess., Agenda Item 8, ¶
9, U.N. Doc. E/CN.4/Sub.2/1996/14 (1996) (showing that the global
percentage of GDP of the richest 20% of countries has risen from 89.33% in
1980 to 92.42% by 1994, while the poorest 20% has fallen from 0.13% to
0.07% during the same time period).

name="_ftn111">¹¹¹ 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 contrast,
remains highly insular and continues to negotiate its agreements with only
the participation of the finance ministries and Central Bank. See
Bradlow, supra note 63, at 76-78.

VI. Conclusion

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.