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.