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).