[*PG273]PROTECTING HUMAN RIGHTS IN A GLOBALIZED WORLD
Abstract: The shift in sovereignty accompanying globalization has meant that non-state actors are more involved than ever in issues relating to human rights. This development poses challenges to international human rights law, because for the most part that law has been designed to restrain abuses by powerful states and state agents. While globalization has enhanced the ability of civil society to function across borders and promote human rights, other actors have gained the power to violate human rights in unforeseen ways. This Article looks at the legal frameworks for globalization and for human rights, then asks to what extent globalization is good for human rights and to what extent human rights are good for globalization. It then considers several legal responses to globalization as they relate to the promotion and protection of human rights. This Article concludes that responses to globalization are significantly changing international law and institu-tions in order to protect persons from violations of human rights committed by non-state actors.
International human rights law aims primarily to protect individuals and groups from abusive action by states and state agents.1 Recent developments throughout the world, including failed states, economic deregulation, privatization, and trade liberalization across borderscomponents of what has come to be known as globalizationhave led to the emergence of powerful non-state actors who have resources sometimes greater than those of many states.2 Two opposing views of globalization and its relationship to human rights have emerged: some see the two topics as mutually reinforcing and positive in improving human well-being, while others view globalization as posing new threats not adequately governed by existing international human rights law.
[*PG274] The legal relationship between globalization and human rights can be analyzed from the perspective of economic regulation as well as that of human rights law, examining first whether international economic law sufficiently supports or takes into account human rights concerns, then considering the extent to which human rights law takes into account globalization and economic interests. In respect to both inquiries, the fundamental question is whether a human rights system premised on state responsibility to respect and ensure human rights can be effective in a globalized world.
This Article will discuss the framework of international human rights law and that related to globalization, i.e., international trade, technology, and investment law. It studies the relationship between globalization and human rights, assuming that international society accepts human rights as a fundamental goal and globalization as a generally positive phenomenon. After considering whether or not globalization is favorable to the promotion and protection of human rights, and whether or not the promotion and protection of human rights is favorable to globalization, the Article examines several approaches for the promotion and protection of human rights in the era of globalization: (1) emphasizing state responsibility for the actions of non-state actors; (2) imposing international legal obligations directly on non-state actors, including international institutions, multilateral enterprises, and individuals; (3) encouraging private regulation through corporate codes of conduct, product labeling, and other consumer or corporate actions; and (4) involving non-state actors directly in the activities of international organizations to promote and protect human rights.
The Article concludes that responses to globalization are significantly changing international law and institutions in order to protect persons from violations of human rights committed by non-state actors. To the extent that these changes have brought greater transparency to and participation in international organizations, globalization has produced unintended benefits and further challenges to the democratic deficit in global governance.3 At the same time, an emphasis on subsidiarity and a strengthening of weak states and their institutions may be necessary to ensure that globalization does not mean a decline in state promotion and protection of human rights. To ensure that such strengthening does not lead to further [*PG275]human rights violations, the international community should make concerted multilateral efforts to enhance its ability to respond to human rights violations, rather than unleashing each state to control what it views as the sins of the private sector.
Globalization is a multidimensional phenomenon, comprising numerous complex and interrelated processes that have a dynamism of their own.4 It involves a deepening and broadening of rapid transboundary exchanges due to developments in technology, communications, and media.5 Such exchanges and interactions occur at all levels of governance6 and among non-state actors,7 creating a more interdependent world.
Globalization is not new,8 although its forms and the technology that spurs it have changed. Globalization today is most often associ[*PG276]ated with economic interdependence, deregulation, and a dominance of the marketplace that includes a shifting of responsibilities from state to non-state actors.9 Economic globalization has been accompanied by a marked increase in the influence of international financial markets and transnational institutions, including corporations, in determining national policies and priorities.10 In addition, information and communications technology has emerged as a dominant force in the global system of production, while trade in goods, services, and financial instruments are more prevalent than any time in history.11
Some see this emergence of cross-border networks of production, finance, and communications as posing profound challenges to traditional concepts of state sovereignty. Richard Falk has spoken of the disabling of the state as guardian of the global public good12 in the face of a shift of power and autonomy from the state to markets. Kenichi Ohmae refers to a borderless world in which [m]ore than anything else, the burgeoning flow of information directly to consumers is eroding the ability of governments to pretend that their national economic interests are synonymous with those of their people.13 He adds that, [i]n todays world there is no such thing as a purely national economic interest.14 Perhaps the same may be said for national political interests. Other authors refer to the decline of the western nation state.15 The presence of weakened and failed states is an unde[*PG277]niable modern phenomenon,16 yet there is no clear causal link between globalization and failed states.17 Moreover, state sovereignty remains the international frame of reference,18 even if the exact contours of sovereignty change over time, as they have throughout history.19
Paul Streeten has pointed out that globalization can come from above, in the form of multinational firms, international capital flows, and world markets, or it can come from below, reflecting the concerns of individuals and groups throughout the world.20 It seems evident that globalization has enhanced the ability of civil society to function across borders and promote human rights. The past two decades have seen a shift to multi-party democratic regimes, as more than 100 countries ended rule by military dictatorships or single parties. Pressed by an international network of non-governmental organizations and activists, the international protection of human rights itself can be seen as an aspect of globalization, reflecting universal [*PG278]values about human dignity that limit the power of the state and reduce the sphere of sovereignty.21
Global technology and the information revolution have limited the ability of governments to control the right to seek, receive, and transmit information within and across boundaries. Ideas and information can circulate more freely, as can individuals. The number of televisions per 1000 persons doubled between 1980 and 1995, while the number of Internet subscribers exceeds 700 million persons. Free circulation enhances the ability to inform all persons about rights and avenues of redress. It also makes it more difficult for governments to conceal violations and allows activists more easily to mobilize shame in order to induce changes in government behavior.22 Information technology and the media also can be used, however, to violate human rights when the government is weak. In Rwanda, the radio and television channel Radio-Télévision Libre des Mille Collines was an important avenue for inciting genocide.23 Internet too has been used for hate speech.24
The multiple and sometimes contradictory impacts of globalization are reflected in the complete disagreement of views over the pattern and direction of globalization. Proponents point to a rise in average incomes for the world as a whole. Opponents note that there is persistent inequality and poverty. The World Bank Development Report estimates that, at purchasing power parity, the per capita GDP in the richest twenty countries in 1960 was eighteen times that of the [*PG279]poorest twenty countries.25 By 1995, the gap had widened to thirty-seven times.26 According to the International Labor Organization (ILO), only 24%of the worlds foreign direct investment (FDI) went to developing countries in 1999, down from 38% over the period 199397, and 80% of recent investment went to only ten developing countries.27 Wealth concentration is not only seen among countries, but among individuals as well. According to the UNDP Human Development Report 1999, the assets of the three wealthiest individuals in the world is more than the combined gross national product of all least developed countries, while the annual sales of one transnational corporation exceeds the combined gross domestic product of Chile, Costa Rica, and Ecuador.28
Globalization, thus, has created powerful non-state actors that may violate human rights in ways that were not contemplated during the development of the modern human rights movement.29 This development poses challenges to international human rights law, because, for the most part, that law has been designed to restrain abuses by powerful states and state agents, not to regulate the conduct of non-state actors themselves or to allow intervention in weak states when human rights violations occur.30 An increasingly globalized civil society is likely to respond to economic globalization by opposing liberalized trade and investment regimes that are not accompanied by accountability, transparency, public participation, and respect for fundamental rights.
[*PG280] The result may be viewed as a clash of globalizations.31 The clash plays out in the international institutional and normative system that has separated human rights matters from economic policy and regulation, creating distinct institutions, laws, and values for each field. Integrating them is no easy task; indeed, some commentators view a conflict as inevitable.32
The development of human rights law in response to globalization is not new, and there is nothing inherent in the international system that would prevent further protective measures. The movement against the slave trade, which was largely a private enterprise, and to combat the more indiscriminate or destructive forms of weaponry, such as gas warfare and dum-dum bullets, are early examples of international movements to counter the negative side of international trade and technology. Broader efforts to establish international protection for human rights can be traced to the surge of globalization and the emergence of international markets that occurred at the end of the nineteenth century.33 During this period, the telephone, the telegraph, and radio transmissions first opened the world to rapid transboundary communications; the development of railroads and steamships allowed trade to move more quickly from one market to another, while the abuses associated with industrialization provoked efforts to improve working conditions and the standard of living in many countries.
Efforts to avoid competitive distortions and enhance the protection of fundamental rights of workers necessitated international labor standards. The resulting movement led to the creation of the ILO in 1919.34 Unlike all subsequent international organizations, the ILO [*PG281]engaged all the relevant actors in its operations from the beginning. Using a tripartite structure of representation, the ILO ensured the participation of business, labor, and governments in developing worker rights and minimum labor standards for member states.35 While the standards adopted are addressed to member states for implementation, compliance requires the cooperation of the non-state actors as well, because the organization primarily aims to respond through regulation to poor treatment of labor by private industry. Such regulation is made easier by the participation of labor and business in the law-making and supervisory procedures of the ILO.
The international protection of civil and political rights emerged later, becoming an aim of the international community at the end of World War II in response to the atrocities committed during that conflict. While human rights theory supports the claims of rights holders against all others,36 international human rights law treats the [*PG282]state as the principal threat to individual freedom and well being.37 In the post-World War II paradigm, the state and its agents are obliged to respect and ensure rights. Indeed, some acts are explicitly defined as human rights violations only if committed by state agents or those acting in complicity with them.38 If rights are violated, the state is obligated to ensure domestic remedies to correct the harm are available.39 A failure to do so may allow the individual to bring a complaint against the state before an international tribunal. No international procedures exist at present whereby an injured individual may directly hold responsible the individual perpetrator of the harm.40
Despite the emphasis on state responsibility, international human rights instruments continue to recognize human rights that are violated predominately by non-state actors, for example, freedom from slavery and forced labor. The duty imposed in such instances, however, remains primarily on the state to ensure the right against the slave holders and employers of forced labor. Human rights instruments also speak to the obligations of non-state actors. The first gen[*PG283]eral international human rights instrument, the American Declaration of the Rights and Duties of Man (American Declaration), begins its preamble with an exhortation to all individuals to conduct themselves with respect for the rights and freedoms of others. It clearly views individuals as having duties towards each other.41 The Universal Declaration of Human Rights (Universal Declaration), adopted some six months later, refers to itself as a common standard of achievement for all peoples and all nations, to the end that every individual, and every organ of society shall strive to promote respect for, and observance of, the rights.42 Article 1 of the Universal Declaration specifically refers to the behavior of individuals towards each other.43 This is complemented at the close of the Universal Declaration with a firm statement that, [n]othing in this Declaration may be interpreted as implying for any [s]tate, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.44 Human rights law also imposes individual responsibility for some human rights violations45 and other acts46 designated as crimes under international law. These offenses require the state where the offender is found to try or extradite the individual, and in a few instances may allow prosecution before an [*PG284]international tribunal.47 More generally, Article 28 of the Universal Declaration recognizes that, [e]veryone is entitled to a social and international order in which the rights and freedoms set for in th[e] Declaration can be fully realized.48 From this may emerge the principle that respect for human rights applies to all societal relations locally, regionally, and globally. Thus, although positive human rights law generally addresses state action or inaction, the theoretical and positive foundation is there to apply human rights guarantees to non-state actors.
In recent years, the many facets and importance of the complex interplay of human rights and globalization are reflected in the multiple studies conducted on aspects of globalization by the human rights organs of the United Nations (U.N.). The Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission) has undertaken studies on transnational corporations,49 on the impact of globalization on the enjoyment of human rights generally,50 the impact of globalization on racism and xenophobia,51 the relationship between the enjoyment of human rights and income distribution,52 and on human rights as the primary objective of international trade, [*PG285]investment, and finance policy and practice.53 Beginning in 1998, the Commission on Human Rights (Commission) established a working group on the impact of structural adjustment programs on economic, social, and cultural rights.54 The working group is largely composed of developing countries, with France, Germany, and Italy representing industrialized countries among the sixteen states participating. The Commission also has appointed an independent expert on the topic.55
Both the Commission and the Sub-Commission have adopted resolutions on globalization and human rights.56 The Sub-Commission also unanimously adopted a resolution on trade liberalization and its impact on human rights,57 in which it asked all governments and forums of economic policy to take fully into consideration the obligations and principles of human rights in the formulation of international economic policy. At the same time, the resolution expressed opposition to unilateral sanctions and to negative conditionality on trade as a means to integrate human rights into the policies and practices governing international economic matters. The resolution requested the High Commissioner for Human Rights to cooperate with the World Trade Organization (WTO) and its member states to underline the human dimension of free trade and investments and to take measures to see that human rights principles and obligations are fully taken into account in future negotiations in the framework of the WTO.
Finally, it is noteworthy that human rights law not only potentially imposes duties on non-state economic actors, it guarantees rights es[*PG286]sential for the furtherance of globalization. It protects the right to property, including intellectual property, freedom of expression and communications across boundaries, due process for contractual or other business disputes, and a remedy before an independent tribunal when rights are violated. Furthermore, the rule of law is an essential prerequisite to the long-term conduct of trade and investment.
Intrinsic to globalization is the contemporary legal and institutional framework within which the regimes of international trade, finance, and investment are being conducted. In general, economic globalization has a focus on economic efficiency, the goal being to improve economic well being through efficient market exchanges.58 The system is based upon enhancing the economic well being of nations through trade, on the theory that gains are maximized through the unrestricted flow of goods across national boundaries.59 The system rests upon a view of humans as economic beings that seek to maximize wealth and self-interested satisfaction of personal preferences.60 In a pure economic model, values outside efficiency are irrelevant, even pernicious because they complicate or hamper the trading system.61
[*PG287] The legal dimensions of the framework are expressed in international economic law and the institutional structure of the Bretton Woods multilateral lending institutions and the WTO. International trade and finance institutions were created largely to operate on the economic model and generally exclude from consideration other values of international society, like human rights and environmental protection.
The international trade regime is clearly marked by a commitment to open markets.62 The Uruguay Round agreements that concluded with the establishment of the WTO63 expanded the substantive reach of international trade regulation to include trade-related aspect of intellectual property,64 trade in services,65 and trade-related investment measures.66 Yet, within the legal instruments and policies related to trade and investment there can be found some considerations of human rights. The General Agreement on Tariffs and Trade (GATT) allows states to ban the importation of products stemming from prison labor.67 In addition, GATT Article XX(a) permits trade measures necessary to human morals.68 GATT Article XX(b) allows [*PG288]measures necessary to protect human, animal or plant life or health.69 All of these exceptions are limited by the Article XX chapeau that requires the measures taken not be a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.70
The agreement establishing the WTO refers to reciprocal arrangements for tariff reductions and the elimination of discriminatory treatment in international trade relations.71 Yet, the annexes to the WTO Agreement comprise seventeen interwoven trade agreements that accord rights indirectly to individuals and other non-state actors.72 Among the rights protected are those of intellectual property.73 The General Agreement on Trade in Services (GATS) applies most-favored nation and national treatment principles to service suppliers, requiring that governments accord non-national service suppliers treatment no less favorable than that granted to suppliers from any other country.74 The earlier GATT Article X requires remedies before independent tribunals for those affected by the application of national laws and public information about those laws and regulations.75 The WTO extends these procedural rights to the agreements on antidumping, subsidies, intellectual property, and services.76
In jurisprudence and statements of international officials, the rights of non-state actors are beginning to be considered. In a 1999 panel decision, the panel stated that, the multilateral trading system is, per force, composed not only of States but also, indeed mostly, of individual economic operators whose needs should be a factor in deciding disputes brought to the WTO.77 The U.N. Secretary-General [*PG289]has found that the goals and principles of the WTO agreements and those of human rights law have much in common in part because the WTO agreements seek to create a liberal and rules-based multilateral trading system according to which states can trade under conditions of fair competition.78
Yet, efforts to strengthen human rights protections in trade law have run into difficulties. The WTO Singapore Ministerial Declaration made reference to international labor standards, yet primarily affirmed the jurisdiction of the ILO over the matter.79 Before and during the meeting of member states of the WTO in Seattle, developing countries opposed any discussion or negotiation on worker rights. Industrialized countries recommended enhanced cooperation between the secretariats of the WTO and the ILO, while the United States called for the elaboration of a working program dedicated to employment standards. It seems clear that at present the WTO would oppose the use of unilateral or multilateral trade sanctions for human rights violations. Regional economic bodies have more easily raised human rights matters.80
With globalization, the International Monetary Fund (IMF) and the World Bank have received considerable attention because of the substantial impact they can have on human rights, although both initially resisted taking human rights into account in their operations.81 The General Counsel of the World Bank at first rejected the idea that the Bank should take into account human rights concerns, arguing a need to honor the Banks Charter82 and to respect the specialisation of different international organisations.83 Recently, the World Bank [*PG290]has begun to consider the human dimension of its work and it has declared that the alleviation of poverty is its main objective. The Bank has also been active in designing mechanisms to address the issue of the debt burden, culminating in the highly indebted poor countries (HIPC) initiative.
These efforts mark a shift from the Washington Consensus methods of structural adjustment and economic liberalization that were applied in the 1980s and early 1990s to the macroeconomic policies of developing countries.84 The Washington Consensus privileged market forces, and the Bank followed by promoting privatization programs that took the state out of health, education, and housing. Reduced social spending transferred resources to the private sector and, in some cases, to the military. Human rights activists responded by demanding greater attention to human rights and a social safety net to meet the basic needs of individuals.
Largely as a result of scrutiny from non-governmental organizations and activists concerned about increasing wealth disparity, increased unemployment and other failures to improve the human condition in the countries subject to Bank operations, the Bank has begun to pay attention to social safety nets, human rights, and the notion of good governance. By 1990, the General Counsel determined that, [v]iolation of political rights may . . . reach such proportions as to become a Bank concern due to significant direct economic effects or if it results [in violation of] international obligations.85 In 1998, the Bank published a report on development and human rights emphasizing equality and development and the protection of vulnerable groups.86 It also instituted its Inspection Panel to hear a narrow spectrum of complaints about violations of Bank policy.
The IMF has been less accommodating and remains under pressure to incorporate human rights concerns in its activities. After a difficult public encounter in May, 2001 between the IMF and the U.N. Committee on Economic, Social and Cultural Rights (CESCR), the latter invited three members of the CESCR to meet with the IMF in [*PG291]Washington on October 31, 2001, to have informal, private discussions to try to find some common ground and build confidence.
The IMF argues that its founding Charter mandates that it pay attention only to issues of economic nature. The IMF has issued a document on Good Governance,87 said to respond to the fact that, a much broader range of institutional reforms is needed if countries are to establish and maintain private sector confidence and thereby lay the basis for sustained growth.88 The IMFs concerns still appear confined to:
Issues such as institutional reforms of the treasury, budget preparation and approval procedures, tax administration, accounting, and audit mechanisms, central bank operations, and the official statistics function. Similarly, reforms of market mechanisms would focus primarily on the exchange, trade, and price systems, and aspects of the financial system. In the regulatory and legal areas, IMF advice would focus on taxation, banking sector laws and regulations, and the establishment of free and fair market entry.89
The Good Governance document emphasizes combating corruption and the need to establish transparent operational systems within states; there is no mention of human rights. The Guidelines also say nothing about the IMF itself and its operations.
While both the World Bank and the IMF have modified their policy stances to reduce the emphasis on structural adjustment policies to give greater emphasis to poverty reduction, the ILO still faults them for failing to give enough importance to employment. In its view, a number of country experiences clearly show that integration in global markets is compatible with successful social policy, provided there are adequate national social security systems, functioning systems of social dialogue and relatively low income inequality.90
There is considerable debate over the question of whether or not globalization is good for human rights. One view is that globalization [*PG292]enhances human rights, leading to economic benefits and consequent political freedoms.91 The positive contributions of globalization have even led to the proposal that it be accepted as a new human right.92 In general, trade theory predicts a significant increase in global welfare stemming from globalization, indirectly enhancing the attainment of economic conditions necessary for economic and social rights. Many thus believe that market mechanisms and liberalized trade will lead to an improvement in the living standards of all people. Some also posit that free trade and economic freedom are necessary conditions of political freedom, or at least contribute to the rule of law that is an essential component of human rights.93 Certainly, globalization facilitates international exchanges that overcome the confines of a single nation or a civilization, allowing participation in a global community. There is also the possibility that economic power can be utilized to sanction human rights violators more effectively.94 Ease of movement of people, goods, and services are enhanced. Increased availability and more efficient allocation of resources, more open and competitive production and improved governance could lead to faster growth and more rights. In sum, Judith Bello argues that:
Trade liberalization promotes the growth of stability-promoting middle class all over the globe; trade enhances efficiency and wealth and thereby creates potential revenue for environmental protection. Trade creates jobs in developing as well as developed countries, thereby reducing the pressure on both illegal immigration and illicit drug trafficking. Trade liberalization is not a panacea for the worlds problems, but it can be part of a solution for many of them.95
The pro-globalization assumption that globalization is in the common good and market forces will achieve general well being is [*PG293]not a consensus view. Anne Orford, for example, argues that, [t]he trade and investment liberalization furthered by the Uruguay Round agreements entrenches a relationship between states and transnational corporations that privileges the property interests of those corporations over the human rights of local peoples and communities.96 As such, the economic and technological changes associated with globalization may lead to a world in which the state is no longer the principal threat to human rights, but one where the threats are more posed by multinational corporations, multilateral intergovernmental organizations, and transnational criminal syndicates or organized terrorists. The U.N. Development Program devoted its 2000 Human Development Report to Human Development and Human Rights in which it pointed out that, global corporations can have enormous impact on human rightsin their employment practices, in their environmental impact, in their support for corrupt regimes or in their advocacy for policy changes.97
It has been argued that values associated with human rights emerge with multinational free market growth, as the rule of law follows investors who seek predictability and safeguarding of investments, leading to strengthened independent institutions for civil and political rights, but human rights advocates assert that liberalization in trade, investment, and finance does not necessarily lead to general economic development or better human rights performance. According to the Oxfam Poverty Report:
Trade has the power to create opportunities and support livelihoods; and it has the power to destroy them. Production for export can generate income, employment, and the foreign exchange which poor countries need for their development. But it can also cause environmental destruction and a loss of livelihoods, or lead to unacceptable levels of exploitation. The human impact of trade depends on how goods are produced, who controls the production and marketing, how the wealth generated is distributed, and the terms upon which countries trade. The way in which the international trading system is managed has a critical bearing on all of these areas.98
[*PG294] Opponents of globalization see it as a threat to human rights in several ways. First, local decision-making and democratic participation are undermined when multinational companies, the World Bank, and the IMF set national economic and social policies. Second, unrestricted market forces threaten economic, social, and cultural rights such as the right to health, especially when structural adjustment policies reduce public expenditures for health and education. Third, accumulations of power and wealth in the hands of foreign multinational companies increase unemployment, poverty, and the marginalization of vulnerable groups.
Some criticism has been particularly strong. In resolution 1997/11, the U.N. Sub-Commission on the Promotion and Protection of Human Rights asked El Hadji Guissé to prepare a working document on the impact of the activities of transnational corporations on the realization of economic, social, and cultural rights. The report, delivered in June, 1998, is a wholesale condemnation of economic globalization.99 It begins, [t]odays economic and financial systems are organized in such a way as to act as pumps that suck up the output of the labour of the toiling masses and transfer it, in the form of wealth and power, to a privileged minority.100 Given this opening, it is not surprising that Guissé finds little in globalization that assists in the realization of human rights. Yet, he agrees that the pursuit of profit is not necessarily incompatible with the promotion and protection of human rights.
Globalization is leading to greater problems of state capacity to comply with human rights obligations, particularly economic, social, and cultural rights,101 such as trade union freedoms,102 the right to work, and the right to social security. It also may have a dispropor[*PG295]tionate effect on minorities.103 Cooperation internationally and from non-state actors is needed in the face of an undoubted concentration of wealth in the hands of multinational enterprises, greater than the wealth of many countries. Globalization is a particular issue for women, because they often bear a disproportionate burden of poverty, which may be exacerbated by economic restructuring, deregulation,104 and privatization.105 Investors have demonstrated a preference for women in the soft industries such as apparel, shoe- and toy-making, data-processing, and semi-conductor assemblingindustries that require unskilled to semi-skilled labor, leading women to bear the disproportionate weight of the constraints introduced by globalization.106 The process of economic liberalization has also led to growth in the informal sector and increased female participation therein. Employment in the informal sector generally means that employment benefits and mechanisms of protection are unavailable.107 Underemployment seems to be as big a problem as open unemployment.
It also has been asserted that states feel compelled to ease labor standards, modify tax regulations, and relax other standards to attract foreign investment,108 seen especially in the export production zones (EPZs) where employment may be plentiful, but working conditions poor. Labor unions claim that EPZs are sometimes designed to undermine union rights,109 deny or restrict rights to free association, expression, and assembly.110 There are some twenty-seven million work[*PG296]ers employed in such zones worldwide.111 It is estimated that the number of developing countries with EPZs increased from twenty-four in 1976 to ninety-three in 2000, with women providing up to 80% of the labor force.112
Another impact observed in many countries is a shift from companies hiring permanent employees with job security and benefits, to the use of contingent or temporary workers lacking health care, retirement, collective bargaining arrangements, and other security available to the permanent work force.113 As with other negative impacts of globalization, this one also has more severe impacts on women,114 minorities, and migrant workers.115 Women comprise the largest segment of migrant labor flows, both internally and internationally. States often do not include migrant workers in their labor standards, leaving women particularly vulnerable.116 Overall, only some 20% of the worlds workers have adequate social protection.117 In addition, some 3000 people a day die from work-related accidents or disease.118
Globalization also has produced an important new type of transboundary criminal enterprise. International crimes that involve or impact human rights violations are increasing: illegal drug trade, arms trafficking, money laundering, and traffic in persons are all facilitated by the same technological advances and open markets that assist in human rights. Traffic in women for sexual purposes is estimated to involve more than $7 billion a year, but the sex trade is not [*PG297]the only market for humans. Coercion against agricultural workers, domestic workers, and factory workers also is evident.
Crime syndicates are rivaling multinational corporations for economic power, threatening the security and well being of large numbers of persons. The free movement of capital, which is a prior condition to the growth in foreign investment, permits money laundering in the absence of exchange controls or other appropriate regulation. The free circulation of goods can bring stolen automobiles, smuggled sex workers, and torture implements, as well as fresh fruit and vegetables. At the same time, new technologies also permit the easier pirating of intellectual property. Indigenous groups and local communities challenge the very foundations of intellectual property protection, particularly when applied to pharmaceuticals necessary to ensure the right to life and to health.
Certain human rights are particularly threatened by globalization. Respect for private life needs protection against personal data collection. Cultural and linguistic rights can also suffer under global assault, but the evidence seems contradictory. There is no doubt that globalization facilitates the transfer of cultural manifestations and cultural property. A study by the U.N. Economic and Social Council (UNESCO) indicates that commerce in cultural property tripled between 1980 and 1991 under the impulse of satellite communications, Internet, and videocassettes.119 Yet, in this field, as in others, mergers and acquisitions have concentrated ownership to the detriment of local industry. The Hollywood film industry represented 70% of the European market in 1996, more than double what it was a decade earlier, and constituted 86% of the Latin American market. In the opposite direction, traditional cultures across the world are being transmitted and revived in multiethnic states through the movement of peoples, their languages, and their beliefs.
Economic globalization has been criticized for protecting investors to the detriment of local people, arguably increasing unemployment and underemployment. To make conditions better for investors, the World Bank and IMF impose economic reform that may lead to human rights violations, including an increase in infant and child mortality rates.120 In addition, structural reform usually mandates [*PG298]trade liberalization, something industrialized countries have not been similarly pressured to do. States may or may not be weakened, but the weakest within states are further marginalized. Lack of accountability results from the inability to exercise rights of political participation or information about key decisions. Structural adjustment may require cutting public expenditure for health and education, social security, and housing. Labor deregulation, privatization, and export-oriented production increase income disparity and marginalization in many countries.121 This leaves the main function of the state to be policing and security, which may lead either to increased political repression or to violent protests and political destabilization.
According to the independent expert appointed by the U.N. to study the impact of structural adjustment programs on human rights, there are two main consequences of such programs. First, they have led to a significant erosion of the living standards of the poor and investment in the productive sectors of many countries; second, such countries have ceded their right to independently determine their countrys development priorities . According to the expert, structural adjustment shifted from being a mechanism to handle national debt into a vehicle for deregulation, trade liberalization, and privatizationall reducing the role of the state in national development. Properly structured debt relief is essential to alleviate poverty and build democratic institutions.122
The formation and enhancement of transboundary religious, tribal, corporate, or associational allegiances are aspects of globalization that have both positive and negative aspects. They may challenge the nationality link and loyalty of individuals towards the territorial state. Networks of human rights activists forming an international civil society are an important component in the protection of human rights. Their formation and work is enhanced by information technology and ease of movement. Networks linked by air, telecommunications, media, and the Internet allow shared ideas and the formation of shared values. The human rights activists of the world share values with each other and a commitment to universal compliance with human rights norms that transcend nationality and particular cultural [*PG299]values. These activists have in turn pressured corporations to accept social responsibility in their global dealings. On the negative side, international criminal syndicates and terrorist groups form the same transboundary allegiances and threaten the security of all. The problems then become those of states that are too weak, not states that are too strong.
The dominant view among economists and policy makers in multilateral financial institutions appears to be that any hindrances to global trade and investment are bad for development in general. Recent studies, however, suggest that business and economic indicators are better in developing countries that have more favorable civil and political rights than in repressive regimes.123 Mancur Olson explains that the majority in whose interests a democratic government is ruling demand smaller growth-retarding exaction from the minority and pay greater attention to the supply of growth-promoting public goods than does a dictatorship, even when the majority is acting out of pure self-interest.124 According to his analysis, the dispersal of political power and the emergence of representative government have often been the trigger for faster economic growth. So, prosperity is not only good for democracy, but democracy seems good for prosperity. A feature in the poorest countries is the absence or poor enforcement of contract and property rights, which are necessary for advanced markets and rapid growth.
It also seems clear that establishment of the rule of law with protection for contracts and property rights is essential to maintaining security for international investment and trade. Tourism is the worlds fastest-growing industry, generating more than 10% of total international GNP, and is particularly harmed by images of repression, acts of terrorism, and the political instability that usually result from widespread human rights abuses. Judicial reform and the establishment of the rule of law with respect for human rights should be a priority, even if only for the instrumental reason to secure investment, prop[*PG300]erty, contracts, debts, and profits.125 As the U.N. Development Programs Human Development Report 2000 proclaims, [r]ights make human beings better economic actors.126
Like human rights, economic liberalization is concerned with restraining the power of the state. At the special session of the U.N. General Assembly to review progress since the 1995 Copenhagen World Summit for Social Development, the final document, adopted on July 1, 2000, makes special reference to the role and responsibilities of the private sector to work with governments to eradicate poverty, promote full employment and universal access to social services, and ensure that everyone has equal opportunities to participate in society. In turn, democratic rule and the rule of law inspires further global business activity, generating an upward spiral in rights protection. The text encourages corporate social responsibility and promotes dialogue among government, labor, and employer groups. It also expresses a belief in the relationship between economic growth and social development.127 The Copenhagen Declaration and Program of Action affirmed that social development and social justice cannot be attained in the absence of respect for all human rights and fundamental freedoms. The Sub-Commission on Promotion and Protection of Human Rights finds in major human rights instruments obligations and goals which are fundamental to the development process and to economic policy.128
None of the international human rights instruments imposes an economic model, free trade, or deregulation. Yet, as Anne Orford points out, there is a link between human rights and a liberal economic regime that may facilitate globalization.129 Liberal concepts of human rights identify the individual with property ownership and are linked with the emergence of capitalism.130 In contrast, the failure by some governments to respect core labor standards is likely to provoke [*PG301]trade tensions and lead to protectionist efforts. The stability of the worlds trading system may thus depend upon ensuring that an open trading system does not come at the price of human rights.
Globalization has led to an increased concern about the responsibility of all international actors to ensure the promotion and protection of human rights. International institutions and scholars have responded with various proposals for strengthening the international regime. First, human rights activists and institutions have begun to posit the primacy of human rights law. The Committee on Economic, Social and Cultural Rights (CESCR) has emphasized that, the realms of trade, finance and investment are in no way exempt from these general principles [on respect for human rights] and that international organizations with specific responsibilities in those areas should play a positive and constructive role in relation to human rights.131 The CESCR also asserts that competitiveness, efficiency, and economic rationalism must not be permitted to become the primary or exclusive criteria against which governmental and inter-governmental policies are evaluated.132
Second, state responsibility for failing to control the actions of private parties has received considerable attention in the case law of international tribunals133 and the work of the U.N.134 Third, international law is increasingly regulating non-state behavior directly. Fourth, private market mechanisms such as codes of conduct or consumer purchasing schemes have sought to influence corporate behavior. Finally, restructured international governance mechanisms are [*PG302]bringing a variety of international actors together to achieve common goals.
The first general trend, seen particularly among human rights advocates, has been to affirm the priority of human rights over other international legal regimes. According to this view, international economic policies cannot be exempt from conformity to international human rights law. States and international organizations are directly obliged to comply with those principles and obliged to ensure that private economic actors within their jurisdictions do not act in violation of those rights.135 In a 1998 statement on globalization and economic, social, and cultural rights, the CESCR expressed its concerns over the negative impact of globalization on the enjoyment of economic, social, and cultural rights, and called on states and multilateral institutions to pay enhanced attention to taking a rights-based approach to economic policy-making.136 The CESCR declared that the realms of trade, finance, and investment are in no way exempt from human rights obligations. Those concerns were raised again in the statement the CESCR addressed to the WTO Third Ministerial Conference in Seattle in November, 1999. The CESCR urged WTO members to adopt a human rights approach at the conference, recognizing the fact that, promotion and protection of human rights is the first responsibility of Governments.137 The CESCRs language echoes that of the Vienna Declaration and Program of Action,138 which affirmed that, the promotion and protection of human rights and fundamental freedoms is the first responsibility of government and that, the human person is the central subject of development. Similarly, the Copenhagen Declaration and Program of Action139 recommended to [*PG303]states the need to intervene in markets to prevent or counteract market failure, promote stability and long-term investment, ensure fair competition and ethical conduct, and harmonize economic and social development. The Sub-Commission on Promotion and Protection of Human Rights has expressly asserted the centrality and primacy of human rights obligations in all areas of governance and development, including international and regional trade, investment and financial policies, agreements, and practices.140 The Commission on Human Rights, for its part, has affirmed that, the exercise of the basic rights of the people of debtor countries to food, housing, clothing, employment, education, health services and a healthy environment cannot be subordinated to the implementation of structural adjustment policies and economic reforms arising from the debt.141 The special rapporteurs on globalization and its impact on the full enjoyment of human rights flatly assert that, the primacy of human rights law over all other regimes of international law is a basic and fundamental principle that should not be departed from.142
Can the primacy of human rights be justified in international law? An argument can be posited on the basis of treaty law. The U.N. Charter refers to human rights in its second preamble paragraph and lists human rights as the third of its purposes in Article 1, after maintenance of peace and security, and the development of friendly relations among nations based on equal rights and self-determination of peoples.143 The Charter not only makes human rights an aim of the organization, it obligates all member states to take joint and separate action with the U.N. to achieve universal respect for and observance of human rights and fundamental freedoms, as in Articles 55 and 56.144 Article 103 of the Charter provides that, in the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter [*PG304]shall prevail.145 This supremacy clause has been invoked to suggest that the aims and purposes of the U.N., maintenance of peace and security, and the promotion and protection of human rights, constitute an international public order to which other treaty regimes must conform.146 It may be argued, however, that there is no conflict between human rights and the international trade and financial regime because they regulate separate areas of human activity. In addition, some may point to the later in time rule of the Vienna Convention on the Law of Treaties.147 However, the Vienna Convention is not retroactive and, in any case, the provisions of Article 30 expressly provide that the later in time rule is without prejudiced to [A]rticle 103 of the United Nations Charter.148 As with domestic bills of rights, international human rights law may limit the implementation of other social goals to means and methods compatible with its contents. In practice, states and international organizations are taking action to increase the responsibility of state and non-state actors when their economic activities impact on human rights.
The second response to globalization is found in efforts to insist on state responsibility for the behavior of non-state actors. As far as human rights are concerned, this means the state is responsible for its acts and its omissions. The Restatement of U.S. Foreign Relations Law makes it clear that a state violates international law if it commits, encourages, or condones genocide, slavery, torture, or inhuman or degrading treatment.149 Complicity in human rights violations between state and non-state actors is a growing subject of interest and litigation.
The next question posed is whether or not a state is responsible for the acts of international organizations in which it participates. The International Covenant on Economic, Social and Cultural Rights (ICESCR),150 Article 2(1), provides that each state party will take steps, individually and through international assistance and coopera[*PG305]tion to achieve the rights in the Covenant.151 This means that voting in the World Bank or IMF for programs or policies that will lead to human rights regression in one or more states could be deemed to violate the voters obligations under the Covenant.152
Traditional interpretations of the ICESCR, Article 2, permit states to determine how and when they allocate resources for the realization of economic, social, and cultural rights.153 However, in its General Comment No. 3 on the nature of the states parties obligations under the ICESCR, the CESCR declared that concrete legal obligations are imposed by the Covenant under Article 2.154 State parties are obliged to realize minimum standards relating to each of the rights utilizing available resources in an effective manner. Violations can occur either through commission or omission.
The jurisprudence of the CESCR also recognizes minimum core obligations on the part of state parties that have to be fulfilled irrespective of resource or other constraints. In determining whether a state party has utilized the maximum of its available resources, attention shall be paid to the equitable and effective use of and access to available resources. States also may be responsible if they fail to exercise due diligence in controlling the behavior of non-state actors, such as transnational corporations, over which they exercise jurisdiction, when such behavior deprives individuals of their economic, social, and cultural rights.
The CESCR has consulted with multilateral institutions, specialized agencies, and non-governmental organizations (NGOs) in developing its approach to the issue of globalization. Other treaty-based human rights mechanisms have also shown concern over rising economic disparities that impact on their individual mandates. For example, the Committee examining periodic country reports under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), has shown great concern over the evidence of the feminization of poverty and the impact of economic policies on the rights of women.155 The Human Rights Committee, in General Com[*PG306]ment No. 28 dealing with equality of rights between men and women, gives some consideration to issues such as the feminization of poverty, declining social indicators, and gender inequity in employment within the framework of globalization.
A number of U.N. specialized agencies have also addressed the question of globalization. The ILO has long tackled the phenomenon. From the Copenhagen Social Summit in 1995 to the 1998 Declaration on Fundamental Principles and Rights at Work, the ILO has pressed for an international consensus on the content of the core labor standards that provide a social floor to the global economy.156 In 1998, the ILO adopted the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Convention No. 182).157 It also adopted its Declaration on Fundamental Principles and Rights at Work together with a follow-up procedure based upon technical cooperation and reporting. The principles have been incorporated into codes of conduct by the private sector and also used as a basis for action by various regional communities, such as the Southern African Development Community, MERCOSUR, and the Caribbean Community. U.N. bodies and specialized agencies, such as the U.N. Childrens Fund (UNICEF), the U.N. Educational, Scientific and Cultural Organization (UNESCO), the Office of the U.N. High Commissioner for Refugees (UNHCR), and the U.N. Environment Programme (UNEP), have all carried out work that has implications for the overall response by the U.N. to the phenomenon of globalization. On the regional level, the European Union, in the context of negotiations for the fourth Lomé Agreement with countries of Africa, the Caribbean, and the Pacific (ACP states), sought to include good governance in public affairs, democracy, respect for human rights, and respect for the rule of law, essential in the elements of the accord, with the termination of assistance for non-respect of any of the elements.
[*PG307] Finally, it may be asserted that both the home and the host states have obligations to regulate the conduct of multinational companies. The Trail Smelter Arbitration,158 the Corfu Channel Case,159 and the U.N. Survey of International Law all state the same principle: every states obligation not to allow knowingly its territory to be used contrary to the rights of other states.160 The Trail Smelter Arbitration involved a privately owned Canadian company that caused harm through its activities to farmers in the United States.161 Corporate decisions in one state to undertake activities in another state that involve human rights violations could similarly lead to recognition that both states have a duty to control the conduct of the multinational company.
In a third approach, the international community has been moving towards greater ascription of individual responsibility for human rights violations, both by state and by non-state actors. While states remain primarily responsible for ensuring the promotion and protection of human rights, increasing attention is being given to the responsibility under international law of inter-governmental organizations, business enterprises, and individuals. In this regard, the international legal system can no longer be described as one governing states alone. The Universal Declaration of Human Rights opened the door to this development by providing, in Article 30, that, [n]othing in this Declaration may be interpreted as implying for any [s]tate, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.162 Conceptually linked to this, the preceding article stipulates that, everyone has duties to the community in which alone the free and full development of his personality is possible.163
The special rapporteur on the relationship between the enjoyment of human rights, in particular economic, social, and cultural rights, and income distribution, views economic, social, and cultural rights as the set of basic rights which determines the limits of globalization.164 In Bengoas view, lack of education, early school leaving and structural poverty are not only general ethical issues but also vio[*PG308]lations of the human rights proclaimed by international law.165 He concludes that the great legal, political, and ethical challenge for the coming century will be the codification and enforceability of human rights in an internationalized market.166 Such an action requires taking into consideration the fact that the state is neither the sole agent nor the sole economic actor, despite its central responsibility, for the realization of economic, social, and cultural rights. Other important actors are transnational corporations, international organizations, trading and financial enterprises, and even such groups as private agencies providing assistance to the poor and needy.167 He suggests further development of codes of conduct for these non-state actors and in particular the formation of a Social Forum with the participation of all such actors. It is somewhat surprising that the suggestion is this modest, given his characterization of the globalized world as one where:
There is not only the enormous wealth of a few thousand, but also the corruption of many [s]tate authorities, the failure of [s]tate mechanisms and services to discharge their functions, the unregulated and uncontrolled presence of transnational corporations and companies, the authoritarian and unconsidered operation of international financial institutions, and the frequently futile action of organizations and institutions which are well-intentioned but which do not coordinate their activities in a stable and sustained manner.168
Another special rapporteur has remarked upon the lack of effective mechanisms to enforce the accountability of non-state actors.169 He asserts that enforcing respect for codes of conduct, trade union laws, and rights of association and expression may prove difficult, citing the example of the code on marketing breast milk substitutes.170
In respect to intergovernmental organizations, the theoretical basis for insisting that they adhere to human rights standards in their [*PG309]programs derives from their international legal personality.171 International organizations are entities created by states delegating power to achieve certain goals and perform specified functions. While not states, and not having the full rights and duties of states, international organizations take on rights and duties under international law. It would be surprising if states could perform actions collectively through international organizations that the states could not lawfully do individually.172 In other words, if states cannot confer more power on international organizations than they themselves possess, international organizations are bound to respect human rights because all the states that create them are legally required to respect human rights pursuant to the U.N. Charter and customary international law.
The Commission on Human Rights has begun to suggest, albeit very cautiously, that multilateral institutions must conform their policies and practices to human rights norms. In its Resolution 2001/32, the Commission recognized:
That multilateral mechanisms have a unique role to play in meeting the challenges and opportunities presented by globalization and that the process of globalization must not be used to weaken or reinterpret the principles enshrined in the Charter of the U.N., which continues to be the foundation for friendly relations among states, as well as for the creation of a more just and equitable international economic system.173
The resolution affirms not only the individual responsibility of states for human rights but also recognizes that, in addition to [s]tates separate responsibilities to their individual societies, they have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level.174 Subsequent to this, and in the most recent statement of the human rights bodies on the issue, the Sub-Commission adopted a resolution in which it considers that, at[*PG310]tention to the human rights obligations of governments participating in international economic policy formulation will help to ensure socially just outcomes in the formulation, interpretation and implementation of those policies.175 The Sub-Commission expresses its gratitude for discussions with the WTO, the IMF, and the World Bank, and attempts to walk a difficult line in reaffirming the importance and relevance of human rights obligations in all areas of governance and development, including international and regional trade, investment and financial policies and practices, while confirming that this in no way implies the imposition of conditionalities upon aid to development.176 It urges all governments and international economic policy forums to take international human rights obligations fully into account in international economic policy formulation.177
In its 1998 comment on globalization, the CESCR called for a renewed commitment to respect economic, social, and cultural rights, emphasizing that international organizations, as well as governments that have created and managed them, have a strong and continuous responsibility to take whatever measures they can to assist governments to act in ways that are compatible with their human rights obligations, and to seek to devise policies and programs that promote respect for those rights.178 The CESCR addressed itself in particular to the IMF and the World Bank, calling upon them to pay enhanced attention to human rights, including through encouraging explicit recognition of these rights, assisting in the identification of country-specific benchmarks to facilitate their promotion, and facilitating the development of appropriate remedies for responding to violations.179 The WTO also should devise appropriate methods to facilitate more systematic consideration of the impact upon human rights of particular trade and investment policies.180 The CESCRs recent General Comment on the right to food concerns food security within the context of globalization.181 It draws attention to the responsibilities of private actors, aside from the obligation of states parties to regulate appropriately their conduct, in the realization of the right to adequate [*PG311]food.182 The comment goes on to stipulate that, [t]he private business sectornational and transnationalshould pursue its activities within the framework of a code of conduct conducive to respect of the right to adequate food, agreed upon jointly with the Government and civil society.183 Furthermore, it calls upon the IMF and the World Bank to pay attention to the protection of the right to food in drawing up lending policies, credit, and structural adjustment programs.184 This approach by a treaty-based mechanism, focusing on the responsibilities of multilateral organizations as well as private actors in protecting human rights, is a significant step in international law.
International conferences also have called on international financial institutions to pay greater attention to human rights, through promotion and through assisting in the development of benchmarks to monitor compliance and remedies to respond to violations.185 In particular, social safety nets should be defined by reference to these rights and enhanced attention should be accorded to such methods to protect the poor and vulnerable in the context of structural adjustment programs.186 Social monitoring and impact assessments, similar to that done for the environment, are recommended to international financial institutions and to the WTO. Labor unions have called for including core labor standards in the future WTO work program.187
For individuals, international responsibility is also increasing. The U.N. Development Program Human Development Report 2000 calls for greater accountability of non-state actors, pointing out that, global corporations can have enormous impact on human rightsin their employment practices, in their environmental impact, in their support for corrupt regimes or in their advocacy for policy changes.188 The most egregious acts are proscribed as international crimes. The Nuremberg Military Tribunal189 and subsequent princi[*PG312]ples prepared by the U.N. International Law Commission190 made clear that neither government position nor government orders will free an individual from responsibility for the commission of an international crime.191 As was said in the Nuremberg judgment: crimes against international law are committed by men and not by abstract entities and it is only by punishing individuals who commit such crimes that international law can be upheld.192 The U.N. Security Council also has made clear the international liability of non-state as well as state actors who commit war crimes and other international crimes
The list of international crimes at Nuremberg were war crimes, crimes against peace, and crimes against humanity.193 The Convention on the Prevention and Punishment of the Crime of Genocide affirms that genocide, whether committed in peacetime or wartime, is a crime under international law and that, [p]ersons committing genocide . . . shall be punished, whether they are constitutionally responsible [rulers], public officials, or private individuals.194 In 1973, the U.N. similarly declared apartheid a crime against humanity and broadly imposed responsibility on individuals, members of organizations, institutions and State representatives.195 The International Law Commissions Draft Code of Crimes against the Peace and Security of Mankind holds that systematic or widespread violations of human rights constitute international crimes for which non-state as well as state actors may be responsible.196 Article 21 of the Draft Code of Crimes imposes individual responsibility for the commission of murder; torture; establishing or maintaining over persons a status of slav[*PG313]ery, servitude, or forced labor; persecution on social, political, racial, religious, or cultural grounds in a systematic manner or on a mass scale; and deportation or forcible transfer of the population.197
Recently, member states of international organizations have sought to reach misconduct that is transnational in character, but not specifically designated as an international crime. The Inter-American Convention on Violence against Women calls on state parties thereto to take action against state and non-state actors that commit violence against women in the public and private spheres, including family violence.198 On November 15, 2000, the U.N. General Assembly adopted a Convention against Transnational Organized Crime and a Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.199 This Convention calls on states to criminalize listed offenses, including money laundering and corruption, and to cooperate to combat transnational crime and to protect victims of crime.200 The Protocol on Trafficking expressly refers to the human rights of victims201 and to various human rights abuses such as forced labor, slavery, or practices similar to slavery.202 Natural and legal persons may be liable, and the proceeds of crimes confiscated and seized are to be used for the benefit of victims.
International organizations have taken up several problems where trade and human rights are linked, in the process enhancing global governance by bringing together state and non-state actors. The U.N. Security Council has expressed its concern about the role of the illicit diamond trade supporting the conflict in Sierra Leone and called upon the international diamond industry to cooperate on a ban on all rough diamonds from Sierra Leone.203 The Council requested the U.N. Secretary-General to appoint a panel of experts to monitor implementation of the ban.204 In addition, the resolution calls upon states, international organizations, the diamond industry, [*PG314]and other relevant entities to assist the government of Sierra Leone to develop a well-structured and well-regulated diamond industry.205 The World Diamond Congress, meeting in 2000 in Antwerp, proposed the creation of an international diamond council made up of producers, manufacturers, traders, governments, and international organizations to oversee a new system to verify the provenance of rough diamonds.
If the behavior of non-state actors violates international norms directly applicable to their conduct, they may be held responsible to their victims. Efforts to hold corporations accountable for conduct occurring in overseas operations have recently become prevalent in U.S. courts. Using the Alien Tort Claims Act, plaintiffs have sought to hold multinational companies liable for customary human rights violations and environmental harm in Burma, Nigeria, Ecuador, and India. In England as well, the House of Lords has upheld an action brought against an English-based multinational company by South African mineworkers suffering from asbestos related diseases. The use of international human rights law in presenting claims directly against industry is a relatively recent phenomenon and reflects the growing attention being paid to non-state actors in international law and the expectations that their behavior will be tested by norms previously directed at states and state agents. The draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters refers to human rights in Article 18, in reference to war crimes and grave violations of fundamental rights.
Further action is being taken by human rights bodies. In 1998, the U.N. Sub-commission for the Prevention of Discrimination and Protection of Minorities voted to establish a Working Group to examine over three years the effects of the working methods and activities of transnational corporations on human rights.206 The mandate of the Working Group is extensive and includes identification and examination of the effects of the activities of transnational corporations on the enjoyment of civil, cultural, economic, political, and social rights, the right to development, the right to a healthy environment, and the right to peace.207 It is to gather and examine information and reports, and prepare an annual list of transnational corporations to provide examples of the positive and negative impacts on human rights of their activities in the countries in which they operate.208 In addition, [*PG315]the Working Group is to assess how existing human rights standards apply to transnational corporations, including private initiatives and codes of conduct, and collect for study international, regional, and bilateral investment agreements.209
The Working Group has prepared a draft code of principles relating to the human rights conduct of companies, based upon relevant language from the codes of conduct by the U.N., the Organization for Economic Co-Operation and Development (OECD), the ILO, corporations, unions, and non-governmental organizations.210 The principles address a wide range of human rights issues, including non-discrimination, and freedom from harassment and abuse, slavery, forced labor and child labor, healthy and safe working environments, fair and equal remuneration, hours of work, freedom of association, and the right to collective bargaining, as well as war crimes and other international crimes.211 The fundamental rationale for the draft principles was to impose responsibility on companies commensurate with their increased power.212 During the meetings of the Working Group leading up to the principles, many non-governmental organizations argued in favor of drafting a legally binding instrument, on the basis that another voluntary code of conduct would be insufficient.213
The ILO remains the key institution concerned with the rights of workers throughout the world. To the extent that other organizations have become involved, the ILO seeks to determine whether or not their standards conform to those of the ILO and adopt a similar human rights approach. The ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy addresses the obligations of four groups: the enterprises themselves; workers groups; employers organizations; and governments. Its aims are to encourage the positive contributions of multinational companies to economic and social progress and to minimize the negative consequences that might accompany their activities. The Declaration provides that all four groups should respect the Universal Declaration of Human Rights and the two U.N. Covenants on Human Rights. The [*PG316]ILO also surveys the positive and negative effects of multinational activities based on information from workers, employers, and governments.
The OECD became a focus of controversy during its unsuccessful efforts to draft a Multilateral Agreement on Investment (MAI), a process that ended in December, 1998.214 Strikingly, both the investors pressing the MAI and those opposed to it were part of the globalized community and, according to one view, compromise the concept of national sovereignty and local control.215 Many of the issues raised concerned human rights, including some related to the negotiating process itself and its lack of transparency.216 In addition, NGOs were concerned about several substantive areas that seemed to seriously limit the sovereignty of states in favor of foreign investors.
Before and after the MAI negotiations, the OECD addressed issues of human rights. First, in 1995, it published guidelines on participatory development and good governance217 in which the members reiterated their adherence to international human rights norms.218 In 1996, OECD studied trade and labor standards, looking at core worker rights.219 Later, it adopted revised Guidelines for Multinational Enterprises on June 27, 2000,220 supported by follow-up procedures in the twenty-nine member states and four non-member states participating in the process.221 The Guidelines concern multinational enterprises operating in or from the thirty-three countries and [*PG317]apply to all operations worldwide. The revision added a human rights obligation, stating that, enterprises should . . . [r]espect the human rights of those affected by their activities consistent with the host governments obligations and commitments. It is significant that the Guidelines do not refer to policies or practices, but rather to the legal obligations of the host state. Every state has such obligations under the U.N. Charter, customary international law, and such human rights treaties as the state has ratified. The Guidelines impose a duty upon businesses to inform themselves of the relevant obligations and conform their conduct to them. The follow-up foresees a series of procedures involving consultations, good offices, conciliation, and mediation.
The U.N. Declaration Against Corruption and Bribery in International Commercial Transactions encourages social responsibility and ethical behavior, calling on partners to international transactions to observe the laws of the host countries, and take into account the impact of their activities on economic and social development and protection of the environment and human rights.
Yet another response to the intersecting issues of globalization and human rights has been to utilize market mechanisms and other forms of private regulation to impact corporate behavior. Pressure from international and national groups, as well as perceived long-term interests, have led many companies to take up the issue of human rights. A survey by the Ashridge Centre for Business and Society found that human rights issues caused more than one in three of the 500 largest companies to abandon a proposed investment project and nearly one in five to divest its operations in a country. Nearly half have codes of conduct that refer to human rights. The record is not clear, however, on implementation. The U.N. Development Program Human Development Report 2000 calls for better implementation of corporate codes of conduct, stating that, many fail to meet human rights standards, or lack implementation measures and independent audits.222 It suggests that the use of human rights indicators be extended to include the role of corporations.
Codes of conduct for human rights often result from pressure on companies to divest from countries with widespread and systematic human rights violations.223 Consumer boycotts and labeling initiatives [*PG318]such as Rugmark224 provide a means for persons concerned with labor conditions and human rights to use their purchasing power to influence corporate policy. Effective mobilization of international consumer pressure can substitute for regulation.225 A writer in the Economist has observed that, a multinationals failure to look like a good global citizen is increasingly expensive in a world where consumers and pressure groups can be quickly mobilised behind a cause.226 Such marketplace regulation has been criticized as lacking in the accountability and transparency that normally accompany the formation of laws.227
The final approach concerned with enhancing human rights in a globalized world is one that has broad implications for global governance generally. It seeks to enhance non-state participation in international organizations and other fora concerned with international regulation. While international organizations other than the ILO have limited participation for non-governmental entities, efforts are being made to develop more collaborative efforts between state and non-state actors within the framework of international organizations.
The U.N. Millennium Declaration228 resolves to give greater opportunities to the private sector, NGOs, and civil society in general to contribute to the realization of the Organizations goals and programs.229 The U.N. Global Compact Initiative aims to develop policy networks of international institutions, civil society, private sector organizations, and national governments to further human rights.230 The Initiative has taken up such issues as trade in diamonds in zones of conflict, corporate social responsibility generally, the inclusion of corporate behavior in the studies conducted by U.N. special rappor[*PG319]teurs on various human rights issues, and the impact of national litigation on corporate liability for human rights abuses in countries where the companies have operations.231 It is also concerned with the work of international financial institutions like the World Bank and regional organizations, such as the OECD.232
U.N. special rapporteurs have held discussions with private actors in exercising their mandates. The special rapporteurs on Sudan and on Afghanistan held dialogues with oil companies conducting activities in these countries; the special rapporteur on toxic waste met with a pharmaceutical company.233 The special rapporteur on the sale of children has worked with the International Chamber of Commerce requesting information about company initiatives benefitting children that could be proposed for action in various parts of the world.
Multinational companies also have been important in conflict resolution, especially in mobilizing information and communications technology. This was the case with the U.N. High Commissioner for Refugees in, for example, Kosovo.234 Successful partnership will require companies to shun corrupt leaders and work to build viable states that respect human rights.235 The joint U.N.-World Bank effort in East Timor demonstrates a broad engagement in rebuilding, including the development of judicial institutions and processes.236 Given the insecurity in many conflict and post-conflict areas, the cooperation of the U.N. and the World Bank with private enterprise will be necessary to ensure that the risks are properly shared, perhaps through more favorable terms for political-risk insurance.237 Humanitarian and human rights NGOs also must be part of the coalition, with the aim of overcoming the mutual distrust with which the business sector and NGOs view each other. To fully work, such a coalition may [*PG320]require restructuring international institutions to allow more effective participation by non-state actors.
Several multinational agreements have been concluded between international industry associations and workers organizations.238 These include the collective agreement between the International Transport Workers Federation and the International Maritime Employers Committee, an agreement that covers wages, minimum standards, and other terms and conditions of work, including maternity protection. In January, 2001 the two partners agreed upon the future development of labor standards in the international shipping industry to permit such standards to become the third pillar of the shipping industry, alongside maritime environmental and safety standards.239 The Spanish-based telecommunications company Telefonica and the Union Network International (UNI) similarly signed an agreement that covers some 120,000 workers represented by eighteen labor unions affiliated to UNI. Both sides agreed to respect ILO core labor standards covering freedom of association and the right to collective bargaining, non-discrimination, and freedom from forced labor and child labor. In all, the agreement referred to some fifteen ILO conventions and recommendations.
The question of whether or not non-economic, e.g., human rights values, are or should be incorporated in the trade regime remains debated. Richard Shell has proposed a stakeholder model of international government in which private commercial parties, indigent citizens in developing countries with weak governments, environmentalists, labor interests, . . . consumer groups, and others affected by trade would have a role in economic policy-making and dispute settlement in order to integrate non-economic values with economic ones.240 Human rights interest groups and other NGOs having consultative status241 have been prominent in various U.N. human [*PG321]rights meetings and in other international fora, but have had far less success in participating in the WTO.242 In general, more transparency and participation are needed.
The key international legal developments that appear to be emerging as a result of globalization, as discussed above, seem to be the following. First, human rights institutions and activists are asserting a primacy of human rights law over other fields of international law. Whether or to what extent this assertion will be accepted remains to be seen. Second, the international legal personality of inter-governmental organizations is seen to carry with it the obligation to conform to general international law norms, above and beyond the requirements of the constituting charters or constitutions of the organizations. Third, the imposition of responsibility for human rights violations on non-state actors appears to be increasing. This all leads to asking: does the state need strengthening?
Globalization has created centers of power that are alongside, even in competition with the power of states. Accountability for human rights violations and prevention of future ones must today and in the future take into account these non-state actors: the media, corporations, and international organizations such as the WTO and the World Bank. States and their agents are no longer the only or sometimes even the key actors responsible for ensuring that human rights and freedoms are guaranteed. As recent international developments have shown, there are multiple avenues to respond to this problem. The first is to strengthen the state and to insist on its responsibility for ensuring that non-state actors do not commit human rights violations.
There is no doubt a need to strengthen weak states that lack the institutions necessary to protect and ensure human rights. Institutions such as independent judiciaries must be formed and executive power, including the police and military, must be brought under the rule of law. At the same time it must be recognized that there are two problems with solely relying on strengthened individual state action. First, it raises the specter of powerful state agents again capable of and perhaps willing to use and abuse state power to prolong their time in [*PG322]office. The wisdom of political philosophers who called for a balance of and restraints on power must not be forgotten because the good old rule, [s]ufficeth them, the simple plan, [t]hat they should take, who have the power, [a]nd they should keep who can.243 The second problem is that even strong states are unable to deal unilaterally with all the challenges posed by globalization, especially when dealing with international crime, including terrorism. The amount of individual state strengthening that would be necessary to combat these problems would probably require an unacceptable retreat from basic human rights.
The alternative is to strengthen the weak states to enable them to protect human rights, while at the same time imposing increased international obligations on non-state actors through multilateral mechanisms. Thus, even though states will retain the primary responsibility for ensuring the promotion and protection of human rights, non-state actors will be held accountable when they undermine state efforts to do so or are complicit in violations undertaken by the state. Non-state actors have always had a pivotal role in developing the law of human rights; they now may take a further role as a result of globalization.