V. Towards a Fuller Accountability

While this array of treaties, declarations, and
resolutions demonstrates the interest and potential of bringing human
rights to bear on non-state and third-party state actors, real progress
awaits more concrete acknowledgment of legal
accountability. Non-state actors are only too eager to trumpet the
importance of human rights, but they will rarely broach actual human
rights obligations. The literature of the World Bank is replete with
commentary about its role in promoting ESCR, but never suggests actual
legal obligations. ^{href="#_ftn104"
name="_ftnref104">104} TNCs are equally adept at appropriating the
language of human rights to their benefit. ^{href="#_ftn105"
name="_ftnref105">105} 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
the positive and integrated contribution of these legal obligations to
human development. Furthermore, tying legal obligations to human rights
imbues these laws 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 almost total responsibility to the state based on the presumption
that the state has control over violations. However, because other actors
have assumed much of this influence and control they should assume some of
the corresponding duties. The US Supreme Court's recognition of state-like
obligations for certain private corporations with state-like authority
provides an illuminating example. ^{href="#_ftn106"
name="_ftnref106">106} Likewise, humanitarian law places responsibility
on non-state forces and third-party states based on their influence and
control over the welfare of occupied or threatened populations. For
example, international law implicates states in the activities of
terrorist groups that they harbor or finance. Thus, the International
Court of Justice's decision holding the US government
responsible for the acts of the Nicaraguan Contras was based on the
government's proximity and degree of influence over the Contras'
violations of Nicaraguan sovereignty. ^{href="#_ftn107"
name="_ftnref107">107} Such an imposition of state responsibility
suggests interesting parallels for the legalization, headquartering,
subsidization, and general promotion of TNCs abroad.

Second, all parties must be held to the most basic level
of obligation, that of "respect." ^{href="#_ftn108"
name="_ftnref108">108} At a minimum, the UN Charter and the various
human rights treaties require that states and specialized agencies ensure
that their economic and political relations with other countries neither
significantly threaten the ability of a country to provide for its
population nor 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
[ICESCR] should, wherever possible and appropriate, be given specific
and careful consideration. ^{href="#_ftn109"
name="_ftnref109">109}

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 the facilitation of TNC activities without
corresponding controls, may all implicate this duty to respect. Given the
dramatic and growing gap between the richest and poorest countries, the
duty to respect may implicate a wide range of state policies that
undergird the current global economy. ^{href="#_ftn110"
name="_ftnref110">110}

Third, given the lack of legal precedents and guidelines,
procedural obligations, such as transparency, monitoring, impact
statements, consultation, participation, and remedies, may provide the
most effective starting point for advocacy around ESCR, particularly with
non-state and third-party state actors. ^{href="#_ftn111"
name="_ftnref111">111} Compared to other substantive components of
ESCR, these obligations, such as requiring impact statements and an
accounting, are less threatening and at the same time more crucial because
of their capacity to bring affected populations into the process of
defining and ensuring rights.