While this array of treaties, declarations, and resolutions demonstrates the interest and potential of bringing human rights to bear on NS3PS actors, real progress awaits more concrete acknowledgment of legal accountability. Non-state actors are only too eager to trumpet the importance of human rights and their particular contribution to promoting them, but they will rarely if ever broach actual human rights obligations. The literature of the World Bank is replete with details about its role in promoting ESCR, but never with a hint of legal obligation.79 TNCs are equally adept at appropriating the language of human rights to their benefit. The whole concept of human rights is undermined by the notion that institutions will promote them at their own discretion.
Defining a human right as such allows for a process of developing reciprocal duties, monitoring conduct, and holding actors accountable. Codes of conduct, policy directives, and legislation must be tied to the larger framework of human rights in order to ensure their positive and integrated contribution to human development and to imbue them with the necessary sense that rights and obligations derive from human dignity, and not generosity or whim.
Beyond pushing for explicit acknowledgment of accountability, the challenge for human rights advocates lies with the elaboration of specific duties. Towards that end, the following principles should be considered:
First, responsibility should correspond roughly to an actor’s influence and proximity to violations. The human rights system allots near total responsibility to the state based on its presumed control over violations. To the extent that other actors have assumed much of this influence and control they should assume some of the corresponding duties. The U.S. Supreme Court’s recognition of state-like obligations for certain private corporations with state-like authority provides an illuminating example.80 Likewise, humanitarian law places responsibility on non-state forces and outside countries based on their influence and control over the welfare of occupied or threatened populations; and international law implicates states in the activities of terrorist groups that they harbor or finance. The International Court of Jurist’s decision holding the United States government responsible for the acts of the Contras was based on the government’s proximity and degree of influence over this group’s violations of Nicaraguan sovereignty.81 Such cases suggest interesting parallels to state responsibility for the legalization, head-quartering, subsidization, and general promotion of TNCs abroad.
Second, all parties must be held to the most basic level of obligation, that of “respect.”82 At a minimum, the UN Charter and the various human rights treaties require that states and the specialized agencies ensure that their economic and political relations with other countries do not significantly threaten the ability of a country to provide for its population and do not encourage or facilitate violations: As the UN Committee on ESCR states:
Many activities undertaken in the name of “development” have subsequently been recognized as ill-conceived and even counter-productive in human rights terms. In order to reduce the incidence of such problems, the whole range of issues dealt with in the Covenant should, wherever possible and appropriate, be given specific and careful consideration.”83
The duty to respect must be understood to encompass government initiatives and activities that play a significant role in violations. Free trade agreements that fail to incorporate human rights concerns, foreign assistance that has negative impacts on certain sectors of the population, structural adjustment programs, excessive debt repayment schedules, and facilitating TNC activities without also strengthening controls, may all implicate this duty to respect. Given the dramatic and growing gap between the richest and poorest countries, the duty to respect implicates a wide range of state policies that undergird the current global economy.84
Third, given the lack of legal precedents and guidelines, procedural obligations – transparency, monitoring, impact statements, consultation, participation, remedies – may provide the most effective starting point for advocacy around ESCR generally, and particularly with NS3PS actors.85 At some level, these obligations are less threatening (requiring impact statements and an accounting, for example) and more critical (for their capacity to bring affected populations into the process of defining and ensuring rights) than the other substantive components of ESCR.
79 The Bank’s submission to the World Conference on Human Rights is typical. In thirteen pages devoted to the importance of human rights and the many ways in which the Bank “is helping developing countries to make the enjoyment of economic and social human rights a reality” there is a studious avoidance of legal obligation. World Bank, The World Bank and the Promotion of Human Rights, A/Conf.157/PC/61/Add.19 (1993)
80 These cases have involved first amendment free speech rights trumping the corporation’s private property rights. See e.g. Marsh v. Alabama 326 U.S. 501 (1946).
81 Case Concerning Military and Paramilitary Activities in and against Nicaragua, Judgment of 27 June 1986, ICJ Rep. ¶ 107-109. The Inter-American Commission has recently held the Cuban government responsible for deaths caused by the acts of a private shipping company.
82 See supra note 33; Eide, Asbjørn Right to Adequate Food as a Human Right (1989).
83 UN Committee on ESCR, General Comment #2, ¶7
84 See generally report of UN Special Rapporteur on Income Distribution, José Bengoa, Provisional report on the relationship between the enjoyment of human rights, in particular economic, social and cultural rights, and income distribution E/CN.4/Sub.2/1996/14 (1996) (showing that global percentage of GDP of richest 20% of countries has risen from 89.3% to 92.4% while poorest 20% has fallen from 0.13% to 0.7%).
85 The Bank has taken significant steps in terms of impact studies, consultations, access to information, and even some accountability (though not tied to human rights). The IMF, by contest, remains highly insular and continues to negotiate its agreements with only the participation of the finance ministries and Central Bank. See Bradlow, supra note 57.