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}