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.