2. Background to Problem
A. CESR in Ecuador
Some years ago, the Center for Economic and Social Rights undertook an investigation of the human impacts of oil development in the Ecuadorian Amazon. The investigation initially set out to focus on the government’s human rights obligations despite the fact that it was a private company, Texaco, that was responsible for the brunt of the damage.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, that the damage was a natural and inevitable price to pay for the country’s development. 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.6
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 don't sign covenants, that the government bears the responsibility to ensure these rights. In their eyes, Texaco was the villain. Texaco had operated for years in the Amazon as practically a government unto itself, had annual earnings four times the size of Ecuador’s GNP, and had the active support of the U.S. government. Even had the Ecuadorian government been disposed to control the company, few believed it could.
Under the 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 community’s long-overdue sense of injustice and resolve.
B. Principle of State Sovereignty Underlying 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. International law has long been considered the exclusive province of state actors – treaties 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.7
The distinction was premised on a notion of the state as the ultimate guardian of the welfare of its population. 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.8
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.
C. The Impact of Traditional Interpretations: the Legitimation of the Status Quo
The narrow focus of human rights law on state responsibility is not only out of step with current power relations, it tends to obscure them. The exclusive concern with national governments distorts the reality of the growing weakness of national-level authority, serving to shield other actors from greater responsibility. It also creates a false sense of rigidity or inevitability about social and political hierarchies and existing inequities.9 International human rights law perpetuates the notion 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.10
The real potential of the human rights lies in its ability to change the way people perceive themselves vis a vis the government and other actors. Rights rhetoric provides a mechanism for reanalyzing and renaming “problems” as “violations,” something that needn't and shouldn't 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.11 Rights make it clear that violations are neither inevitable nor natural, but arise from deliberate decisions and policies. In their demand for 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.
5 The Inter-American Commission on Human Rights has just released a report of its investigation of this issue. OAS - IACHR, Report on the Situation of Human Rights in Ecuador Doc. 10, rev.1, (D.C., 1997).
6 See Center for Economic and Social Rights, Rights Violations in the Ecuadorian Amazon: the Human Consequences of Oil Development, (1994).
7 One prominent scholar puts the rise of human rights and self-determination into the following context: “The two great doctrines have subverted the very foundations of the world community by introducing changes, adjustments and realignments to many political and legal institutions… To be sure, they have not changed the actual structure of that community or the main rules of the game. Sovereign states have remained the true holders of power; each powerful state continues in the main to deal with national interests. Nevertheless, the two doctrines have introduced the seeds of subversion into this framework, destined sooner or later to undermine and erode the traditional structures and institutions, and gradually to revolutionize those structures and institutions.” Cassesse, Antonio, Human Rights in a Changing World 13 (1990).
8 Commission on Global Governance, Our Global Neighborhood 3 (1995).
9 The psychological and sociological affects of such legal distinctions as state/individual, public/private have been described by scholars associated with Critical Legal Studies. See e.g.Klare, Karl, The Public Private Distinction in Labor Law, Univ. Penn. L. R. 1358, 1417 (1982) (“The primary effect of the public/private distinction is to inhibit the perception that the institutions in which we live are the product of human design and can therefore be changed”); See also Trimble, Philip, Review Essay: International Law, World Order, and Critical Legal Studies, 42 Stan. L. Rev. 811 (1990); Jochnick, Chris & Normand, Roger The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Int’l L. J. 49 (1994).
10 Feminist scholars have gone far towards debunking the public/private distinction in human rights: “A reason often given in considering atrocities to women not human rights violations, politically or legally, is that they do not involve acts by states. They happen between non-state actors, in civil society. … But the state is not all there is to power. To act as if it is produces an exceptionally inadequate definition for human rights when so much of the second class status of women, from sexual objectification to murder, is one by men to women prior to express state involvement.” Catherine MacKinnon, On torture: A Feminist Perspective on Human Rights in Kathleen Mahoney and P. Mahoney (eds.), Human Rights in the Twenty-First Century 21 (1993).
11 See generally, Freire, Paulo, Pedagogy for the Oppressed (Herder and Herder, 1970).
