* J.D., Harvard Law School (1998), B.A., University of Michigan (1993). Christiana Ochoa is a past associate of the New York office of the law firm Clifford Chance. She has worked as a visiting professor at the University of the Andes in Bogotá, Colombia and has worked for a number of human rights organizations throughout Latin America. The author would like to thank Timothy Lynch, Christiana Zilke, Todd Ochoa, Max Ochoa, William Aceves, Erin Han, Kara DelTufo, and Michelle Picheny for their thoughtful comments to this Article.
1 Samuel Johnson, Samuel Johnson’s Dictionary: A Modern Selection 25 (E.L. McAdam, Jr. & George Milne eds., 1964) (1755).
2 See, e.g., Kenneth Minogue, The History of the Idea of Human Rights, in Hum. Rts. Reader 3, 3–5 (Walter Laqueur & Barry Rubin eds., 1989). “It is easy enough to give a date to inventions like the steam engine, but to say when an idea first became current is much more difficult. In trying to detect this moment, we must use the familiar distinction between the medieval and the modern world.” Id. at 5.
3 For example, the definition of trafficking in women continues to be highly contested. See, e.g., Janie Chuang, Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Contexts, 11 Harv. Hum. Rts. J. 65, 65–68 (1998); Stephanie Farrior, The International Law on Trafficking in Women and Children for Prostitution: Making It Live Up to Its Potential, 10 Harv. Hum. Rts. J. 213, 214–16 (1997); Susan Jeanne Toepfer & Bryan Stuart Wells, The Worldwide Market for Sex: A Review of International and Regional Legal Prohibitions Regarding Trafficking in Women, 2 Mich. J. Gender & L. 83, 91–93 (1994).
4 See Robin Tolmach Lakoff, Talking Power 102 (1990).
5 The terms “specialized languages,” “professional languages,” and “languages for special purposes” are used synonymously herein and are the terms used in linguistic studies to explain the phenomenon of languages formed by a specific profession to adequately express the nuances that develop in the pursuit of that profession.
Language for special purposes is like a microscope in areas where technical registers develop. Likewise, only small fragments of reality are made the subject of discussion, and from a very peculiar viewpoint at that. Yet the vocabulary that is necessary for taking part in such a discussion is far greater than the lexicon of general language.
Florian Coulmas, Language and Economy 276–77 (1992).
6 See generally Kiuanne Anthony & Henry Louis Gates, The Dictionary of Global Culture 520 (1997) (defining important cultural contributions and traditions from various regions around the world).
7 See, e.g., Noberto Bobbio, The Great Dichotomy: Public/Private, in Democracy & Dictatorship: The Nature and Limits of State Power 2 (Peter Kennealy, trans.); Int’l Ass’n of Democratic Lawyers, Law in the Service of Peace: Two Concepts 39, 45(1963); David Kennedy, Receiving the International, 10 Conn. J. Int’l L. 1, 4–5 (1994); Robert Howse & Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization ¶ 3 (2000), at http://www.ichrdd.ca/english/commdoc/publications/ globalization/wtoRightsGlob.html (last visited Oct. 1, 2002); see also Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. Pa. L. Rev. 1423, 1424 (1982) (noting how the public/private distinction was brought into the core of legal discussion by the evolution of the market as the central legitimating institution).
8 A good example of this broad definition of international economic law is provided by Joel R. Paul:
In its broadest sense, international economic law includes all national and international legal norms that affect transnational movements of goods, services, capital and labor. The field may include subjects like international business transactions, private international law, international trade law, immigration law, European Communities law, comparative law, transnational litigation, international arbitration procedure, and aspects of banking, competition, employment, environmental, intellectual property, securities, tax, and telecommunications laws that regulate transnational transactions.
Joel R. Paul, The New Movements in International Economic Law, 10 Am. U.J. Int’l L. & Pol’y 607, 609 n.9 (1995). Similarly, the Restatement (Third) of Foreign Relations Law defines International Economic Law as “all the international law and international agreements governing economic transactions that cross state boundaries or otherwise have implications for more than one state, such as those involving movement of goods, funds, persons, intangibles, technology, vessels or aircraft.” Restatement (Third) of Foreign Relations Law Part VIII, Introductory Note at 261 (1987). There is continued debate, however, over which components of international law make up this term. Joel P. Trachtman describes this debate by delineating arguments for a distinction between international business law and international economic law. Under this view, international business law would remain outside of the scope of public international law while international economic law would be included within it:
A related purported distinction between international business law and international economic law is the distinction between transactions and trade. Transactions, in this sense, are between private persons (or public persons treated more or less as private persons), while trade is a matter of public policy and mercantilism or protectionism. The distinction is one between levels of analysis. Analysis at the individual or firm level of economic organization is transactional, while analysis at the state or higher level is economic. Because the substantive body of law governing the individual is still predominantly domestic, this distinction implicates the domestic-international dichotomy.
Joel P. Trachtman, Introduction: The International Economic Law Revolution, 17 U. Pa. J. Int’l Econ. L. 33, 38 (1996). These debates use the definition of economic law as a battleground for the debate over what economic activity should be included within the realms of public versus private international law. The disagreement reveals that in order to address all facets of economic activity, a definition of economic law similar to Joel Paul’s and the Restatement (Third) of Foreign Relations Law is necessary since the definition Trachtman illustrates merely masks and reiterates the private/public distinction.
9 See Bobbio, supra note 7, at 7, 15–17; Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. Pa. L. Rev. 1349, 1349–57 (1982); Trachtman, supra note 8, at 34. For example, Joel Trachtman, in commenting on this debate, critiques the definition of private international law as follows:
I note the emptiness of the category “private international law.” Private international law is not separate from public international law. As many realists and critical legal theorists long ago pointed out, “private law” is an oxymoron. Rather, the important underlying issue is that there are at least two kinds of persons subject to law: private persons and states. The two types of applicable law may be quite different.
Trachtman, supra note 8, at 34. Another exception should be noted. The Secretariat of the United Nations Commission on Human Rights and the Subcommission for the Promotion and Protection of Human Rights (formerly the Subcommission for the Prevention of Discrimination and Protection of Minorities) asserts that all international law is public international law. This body insists that any legal instrument, private or public, that involves more than one state is a matter of public concern and is therefore a matter of public international law. Telephone Interview with Tamara Kunanayakam, Human Rights Commission Secretariat, United Nations, (Aug. 1996) (on file with author). Ms. Kunanayakam is currently directing the Working Group on Forced and Involuntary Disappearances under the auspices of the United Nations Office of the High Commissioner for Human Rights in Geneva, Switzerland.
10 Louis Henkin et al., International Law: Cases and Materials 45 (3d ed., 1993).
11 Black’s Law Dictionary 1244 (7th ed. 1999).
12 “Justice Story coined the term, ‘private international law,’ to describe the principles governing conflicts which he derived from the law of nations.” Paul, supra note 8, at 610.
13 Id.; Trachtman, supra note 8, at 40.
14 For example, in Economic Order and International Law, Wilhelm Ropke elaborated on what he called “[t]he converging interest of the science of international law and of economics in the connection between economic order and international law.” Wilhelm Ropke, Economic Order and International Law, 86 Recueil des Cours 203, 212 (1954).
15 Paul, supra note 8, at 612–13.
16 This range of instruments and institutions emerged from the United States’ and British desire to stem the economic disorder that resulted from the departure of the pre-World War I gold standard-based monetary system, the ensuing nationalist economic policies, and the ill-effects of the Great Depression. Henkin et al., supra note 10, at 1417–18.
17 Id. at 1394.
18 Some 730 people from forty-four countries—mostly allied nations—attended the conference. Victor L. Urquidi, Reconstruction vs. Development: The IMF and the World Bank, in Bretton Woods, supra note 28, at 13.
19 Id. at 4.
20 Id. at 38–40.
21 Victor L. Urquidi of Mexico, one such advocate, recalled a talk he gave at the Littauer School at Harvard University in 1944.
I began by reminding the audience that . . . Latin America . . . was well within the lowest category of income . . . per head in the world, productivity was low, and we showed every feature of underdevelopment. We needed to raise farm productivity and widen our domestic markets as a basis for industrialization, for which we required “investment for development purposes, better technique, and more education.” I saw all this as an argument for obtaining foreign assistance. . . . I did not see private investment alone as doing the job, given the need for social reforms . . . . I feared that, unfortunately, the Bank for Reconstruction and Development (I actually said that “one almost forgets to add this word”) would place “too little emphasis on development” and that its operations “would be mostly to supplement private investors . . . instead of lending its own money,” whereas we were “by no means sure of being able to resort to private capital on reasonable terms”; among other things, “investors . . . will be after profits, or lower corporation taxes, but [would not be] interested in our organic development or industrialization as a whole.”
Id. at 43.
22 Id.
23 Urquidi, supra note 18, at 47.
24 Id.
25 The goals of the IMF are set out in Article I of its Articles of Agreement. Articles of Agreement of the International Monetary Fund, as amended, Apr. 1, 1978, 29 U.S.T. 2203, T.I.A.S. No. 8937.
26 Henkin et al., supra note 10, at 1419.
27 Irving S. Friedman, The International Monetary Fund: A Founder’s Evaluation, in The Political Morality of the International Monetary Fund 19 (Robert J. Meyers ed., 1987).
28 Henkin et al., supra note 10, at 1396; Simon Reisman, The Birth of a World Trading System: ITO and GATT, in The Bretton Woods-GATT System: Retrospect and Prospect After Fifty Years 83–85 (Orin Kirshner ed., 1996)[hereinafter Bretton Woods].
29 Reisman, supra note 28, at 85.
30 Id. at 85–86.
31 Id. at 86.
32 Henkin et al. describe the history of the NAFTA as follows:
In March, 1985, President Reagan and [Canadian] Prime Minister Mulroney asked their trade officials to explore ways to eliminate barriers to trade and investment between the United States and Canada. Under Congressionally granted “fast track” authority, negotiations began in 1986. The United States and Canada reached an agreement on the framework of a free trade area in 1987. And on January 1, 1989, the Canada-United States Free Trade Agreement came into effect. 27 I.L.M. 293 (1988) . . . . The favorable reception . . . moved the member states to open negotiations with Mexico with the aim of bringing about a North American Free Trade Agreement. These negotiations led to a signing of an agreement with Mexico at the end of 1992.
Henkin et al., supra note 10, at 1547.
33 For an overview of the history of the European Economic Community and a comparison between it and the NAFTA, see John P. Fitzpatrick, The Future of the North American Free Trade Agreement: A Comparative Analysis of the Role of Regional Economic Institutions and the Harmonization of Law in North America and Western Europe, 19 Hous. J. Int’l L. 1, 10–23 (1996).
34 See generally Theophilus Fuseini Maranga, The Colonial Legacy and the African Common Market: Problems and Challenges Facing the African Economic Community 10 Harv. BlackLetter L. J. 105 (1993) (discussing the past and present challenges to the African Economic Community as a result of the lingering effects of colonialism).
35 These include the Caribbean Community, the Andean Pact Organization, the Latin American Integration Association, and the Latin American Free Trade Association and MERCOSUR.
36 See generally Lim Siong Hoon, Asean Takes First Step to Regional Customs Grouping, Fin. Times (London), Oct. 9, 1991, at 3 (reporting that in October 1991, the member countries of the Association of South East Asian Nations (ASEAN) announced their creation of an Asian Free Trade Area, consisting of Brunei, Indonesia, Malaysia, the Philippines, Singapore, and Thailand, with the objective of creating a single market within 15 years); Association of Southeast Asian Nations web site, at http://www.asean.org (last visited Oct. 2, 2002) (offering up-to-date information about the status and progress of ASEAN negotiations and legal documents).
37 An International Conference to Study Arab Economic Union, ArabicNews.Com, (November 20, 1997) ¶ 2, at http://www.arabicnews.com/ansub/Daily/Day/971120/1997112024. html (last visited Oct. 2, 2002); see also Mosad Zineldin, Globalisation and Economic Integration Among Arab Countries, ¶ 5, at http://www.hf.uib.no/smi/pao/zineldin.html (last visited Oct. 2, 2002).
38 Henkin et al., supra note 10, at 1394–95. By 1994 developed countries had negotiated over 500 bilateral investment treaties with developing countries. A.A. Fatouros, Towards an International Agreement on Foreign Direct Investment, in Organization for Economic Co-operation and Development, Towards Multilateral Investment Rules 50 (1996). Of the over 1,100 treaties listed in a 1999 publication by the World Bank Group’s International Centre for Settlement of Investment Disputes, more than 800 had been concluded since 1987 and the list of countries party to such treaties had grown to 155. Int’l Centre for Settlement of Inv. Disputes, Introduction to Bilateral Investment Treaties, at http://www.worldbank.org/icsid/treaties/intro.htm (last visited Oct. 2, 2002). In May 1995, the complexity of this web of instruments led the Organization for Economic Co-operation and Development (OECD) to conduct negotiations among OECD member states for a Multilateral Agreement on Investment (MAI). The MAI’s goal was to “provide a broad multilateral framework for international investment with high standards for the liberalization of investment regimes and investment protection and with effective dispute settlement procedures.” . . . . “After a three-year period of intense and highly contested negotiations, lasting until May 1998, and a six-month pause during which no official meetings on the MAI took place, negotiations ceased in December 1998.” OECD Financial, Fiscal, and Enterprise Affairs, Multilateral Agreement on Investment: Documentation from the Negotiation, at http://www1.oecd.org/daf/mai/intro.htm (last visited Sept. 28, 2002).
For a good introduction to the problem of developing a code of conduct for companies, see United Nations, Economic and Social Council, Commission on Human Rights, Principles Relating to the Human Rights Conduct of Companies, U.N. Doc. E/CN.4/Sub.2/2000/WG.2/WP.1/ (2000); see also Henkin et al., supra note 10, at 96 (stating that general multinational treaties lay down rules of behavior that are of a “fundamentally norm-creating character” that form the basis for a general rule of law).
39 The debate surrounding NAFTA is a good example of opposition to an international trade treaty from large portions of a population. See, e.g., Harry Browne, Green Groups, Maturing Relationships, 5 Borderlines 31, ¶ 1, available at http://www.us-mex.org/ borderlines/1997/bl31/bl31gren.html (last visited Nov. 10, 2002). For example, there has been Canadian opposition to NAFTA. See Iryll Umel, Capital Watch: NAFTA’s Drain on Canadian Sovereignty, Washington Report on the Hemisphere ¶ 5 (Aug. 6, 2001) at http://www.coha.org/WRH_issues/21.14-CW-Nafta.htm (last visited Nov. 10, 2002).
40 See, e.g., Amnesty International USA, Latin America: Human Rights Violations Against Trade Unionists 1–5 (1991); Amnesty International USA, Philippines: Human Rights Violations and the Labour Movement 1–3 (1991).
41 See, e.g., Aguinda v. Texaco, Inc., No. 01–7756L, 2002 U.S. App. LEXIS 16540, at *1 (2d Cir. Aug. 16, 2002). See discussion infra note 88.
42 See generally Lawyers Comm. for Human Rights & Nat’l Res. Def. Council, Working Paper: An Int’l Framework for Addressing the Problems Posed by Int’l Trade in Banned or Severely Restricted Prod. (1983) (arguing that importing nations must give informed consent before they allow banned or severely restricted products to enter their territory and concluding that the United Nations must establish a framework that would allow every nation to protect its citizenry by mandating such informed consent regulations).
43 Human Rights Watch, Human Rights Watch World Report 1997: Events of 1996, at 356–61 (1996) (including an overview of 1996 activist efforts to encourage corporations to observe labor rights, environmental rights, rights of association and providing cursory information on the role of governments in balancing the promotion of human rights with the desire to attract capital investment). Notably this human rights issue, which just the year before had been relegated to the back of this organization’s annual report, appeared near the front of its 1998 report. In the 1998 report, “Multinational Corporations” appeared as the third campaign issue after landmines and the establishment of an International Criminal Court. See Human Rights Watch, Human Rights Watch World Report 1998: Events of 1997, at 415–22 (1997) [hereinafter World Report 1998](listing “Corporations and Human Rights” as the second special issue after “Prisons”).
44 Id.
45 See Human Rights Watch, Human Rights Watch World Report 2002: Events of 2001, at 564–73 (2002) [hereinafter World Report 2002].
46 Their first publication on this matter was The Lawyers Committee for Human Rights, The World Bank: Governance and Human Rights (1993).
47 Lawyers Comm. for Human Rights, In the Name of Development: Human Rights and the World Bank in Indonesia, A Joint Report of the Lawyers Committee for Human Rights and The Institute for Policy Research and Advocacy 1 (1995) [hereinafter In the Name of Development]. Subsequent reports of the Lawyer’s Committee for Human Rights are also committed to this goal.
48 Attention from the World Bank and other international financial institutions to human rights will be discussed in Part II, Section C.
49 Barbara A. Frey, The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights, 6 Minn. J. Global Trade 153, 158 (1997).
50 Id.
51 Id.
52 Draft United Nations Code of Conduct on Transnational Corporations, U.N. Center on Transnational Corporations, Special Sess. (Mar. 7–18, 1983 and May 9–20, 1983), U.N. Doc. E/C.10/1982/6 (1986) [hereinafter Draft Code]; Draft United Nations Code of Conduct on Transnational Corporations, U.N. ESCOR, Comm. Transnational Corporations, Special Sess. (June 11–29, 1984), U.N. Doc. E/C.10/1984/s/5 (1984). The mandate to issue this Code of Conduct for Transnational Corporations was prompted by three factors. First, international economic law scholars held that host countries should abide by certain standards concerning treatment of foreign investors. They believed such standards should be enforced at the international level. Second, a widespread demand for some sort of international standards of behavior emerged from both concerns that TNCs were interfering with the traditional social and cultural objectives of their host countries and evidence of corporate misconduct, corruption, and interference in internal state matters. Third, rights advocates and international economic actors alike believed a Code of Conduct was necessary in order to assure uniformity, predictability, and accountability. Outstanding Issues in the Draft Code of Conduct on Transnational Corporations, U.N. ESCOR, Commission on Transnational Corporations, Special Sess. (June 17–21, 1985), at 6–7, U.N. Doc. E/C.10/1985/s/2 (1985).
53 Gillian White, The New International Economic Order: Principles and Terms, in International Economic Law and Developing States 48–49 (Hazel Fox ed., 1992) [hereinafter Developing States].
54 There is general consensus that there will not be further negotiations on the Draft Code. See id. at 49; Henkin et al., supra note 10, at 1458. In fact, the Centre on Transnational Corporations no longer exists as an autonomous entity and has been made one part of the Transnational Corporations and Management Division of the Division of Economic and Social Development of ECOSOC. During the period in which the Centre on Transnational Corporations drafted the Code of Conduct, it had been an autonomous body within the U.N. Secretariat. Henkin et al., supra note 10, at 1454, 1458–59. Importantly, the Commission agreed on draft provisions on the recognition of state sovereignty, adherence to the cultural and economic imperatives of the host country, and respect for human rights and fundamental freedoms. Draft Code, supra note 52, ¶¶ 6, 9, 12, 13.
55 This intergovernmental working group of experts had a two-year mandate for its work. In 1998, under Commission on Human Rights Resolution 1998/72, the Commission on Human Rights established an open-ended Working Group on the Right to Development to “monitor and review progress made in the promotion and implementation of the right to development as elaborated in the Declaration on the Right to Development.” The Right to Development, U.N. High Comm. Hum. Rts., Comm. Hum. Rts. Res. 1998/72, ESCOR, Supp. No. 3, at 229, U.N. Doc. E/CN.4/RES./1998/72 (1998). Numerous statements of this body argue that the current concentration of economic and political power in transnational corporations stands as an obstacle to the realization of the right to development and to achieving equity in resource and income allocation. Declaration on the Right to Development, G.A. Res. 128, U.N. GAOR, 41st Sess., Supp. No. 53, at 186, U.N. Doc. A/RES/41/128 (1986); Report of the Working Group on the Right to Development on Its Second Session, U.N. ESCOR, Comm. Hum. Rts., 51st Sess., ¶ 59, U.N. Doc. E/CN.4/1995/11; Report of the Working Group on the Right to Development on Its First Session, U.N. ESCOR, Comm. Hum. Rts., 50th Sess., ¶ 91, U.N. Doc. E/CN.4/1994/21.
56 The Relationship Between the Enjoyment of Economic, Social, and Cultural Rights and the Right to Development, and the Working Methods of Transnational Corporations, U.N. High Comm. Hum. Rts., Sub-Commission on Prevention of Discrimination and Protection of Minorities, Res. 1998/8, U.N. Doc. E/CN.4/Sub.2/RES/1998/8 (1998).
57 Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations on its Fourth Session, U.N. ESCOR, Comm. Hum. Rts., Sub-Commission on the Promotion and Protection of Human Rights, 54th Sess., U.V. Doc. E/CN.4/Sub.2/2002/13 (2002); World Report 2002, supra note 45, at 571.
58 Secretary-General Proposes Global Compact on Human Rights, Labor, Environment in Address to World Economic Forum in Davos, U.N. Doc. SG/SM/6881/Rev.1* (1990) a-vailable at http://www.un.org/partners/business/davos.htm (last visited Oct.2, 2002). Most interesting about the Global Compact is the Secretary - General’s suggestion to the private actors that they have the power to encourage sovereign states over which they have influence to adhere to the principles of the Global Compact. He also encourages these private actors to behave in accordance with the Global Compact, even in locations that may not afford these protections to their own people. Id.
59 See The Global Compact, Overview, available at http://www.unglobalcompact.org/ Portal / (last visited Nov. 8, 2002). The overview states that the Global Compact is “based on nine principles in the areas of human rights, labour, and the environment.” These prin-ciples are “derived from universal consensus based on” the Universal Declaration of Human Rights, The International Labour Organization’s (ILO) Declaration on Fundamental Principles and Rights at Work, and The Rio Declaration on Environment and Development.
60 OECD, Declaration on International Investment and Multinational Enterprises, in The OECD Declaration and Decisions on International Investment and Multinational Enterprises: Basic Texts, 5–6 (Nov. 8, 2000), available at http://www.olis. oecd.org/olis/2000doc.nsf/c5ce8ffa41835d64c125685d005300b0/c125692700623b74c1256991003b5147/$FILE/00085743.PDF (last visited Oct. 2, 2002). [hereinafter OECD Declaration]. In Annex 1 to that document the member states also adopted Guidelines for Multinational Enterprises. OECD, The OECD Guidelines for Multinational Enterprises, in OECD Declaration supra, at 7-10 [hereinafter OECD Guidelines]. These Guidelines “aim to ensure that the operations of [multinational] enterprises are in harmony with government policies to strengthen the basis of mutual confidence between enterprises and the societies in which they operate . . . .” Id. at 7. The Guidelines include provisions on “Employment and Industrial Relations” and “Environment.” Id. at 13–16.
61 At least one proponent of codes, guidelines, and declarations argues that these non-binding instruments can influence the behavior of governments and enterprises. See William C. Fredrick, The Moral Authority of Transnational Corporate Codes, 10 J. of Bus. Ethics, 165, 167 (1991). It is arguable that the Guidelines provide a valuable reference for future endeavors of the United Nations Centre on Transnational Corporations and the efforts of the International Labour Organization (ILO) to draft similar documents. (The ILO document will be discussed below.) The Guidelines are largely ineffectual, however. First, upon learning that the environmental provisions of the Guidelines were adopted in 1991, one may optimistically argue that such a recent addition to the Guidelines indicates that they could be modified again to include provisions ensuring that international human rights standards are observed by multinational enterprises. OECD Guidelines, supra note 60. Although the guidelines were recently clarified, they are unlikely be modified in the near future. Second, the Guidelines are voluntary, and there is no indication that OECD member-states intend to make corporate or investor adherence to the Guidelines a precondition of operating within their territory. In fact, this would probably be an express violation of current Guideline provisions, which are explicitly intended to be voluntary. Id. at 7. Finally, a 1991 decision of the OECD Council clarifies that, in addition to being voluntary, the Guidelines are non-enforceable, even against enterprises that commit to observing them. Id. at 33–34.
62 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy was adopted by the ILO on November 16, 1977, at the 204th Session of the ILO in Geneva. International Labor Organization Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 17 I.L.M. 422 (Nov. 16, 1977).
63 Jonathan I. Charney, Transnational Corporations and Developing Public International Law, 1983 Duke L.J. 748, 778 n.74.
64 Id.
65 Douglass Cassel, Corporate Initiatives: A Second Human Rights Revolution, 19 Fordham Int’l L.J. 1963, 1974 (1996). For example, in 1996 the United States Department of Commerce issued Model Business Principles. In addition, other campaigns for codes of conduct include the No Sweat Campaign launched in 1996 by U.S. Labor Secretary Robert Reich; the “Trendsetter” list started by the Labor Department to encourage retailers to demonstrate a commitment to U.S. labor laws; and the Apparel Industry Partnership, which was also facilitated by the Labor Department. Deborah L. Spar, The Spotlight and the Bottom Line: How Multinationals Export Human Rights, 77 Foreign Affairs 7, 7–8 (Mar./Apr. 1998).
66 Business leaders who reject suggestions that they should be human rights reformers usually defend their positions by insisting that democracy and human rights are promoted by free trade rather than regulation of corporate conduct. See Frey, supra note 49, at n.13.
67 Organization for Economic Co-operation and Development, supra note 38, at 9. But see Paul Krugman, Pop Internationalism 6 (1997). Krugman argues that the belief that one country must compete with all the others as though in a global marketplace in order to attract foreign direct investment is flawed. He states:
In fact, however, trying to define the competitiveness of a nation is much more problematic than defining that of a corporation. The bottom line for a corporation is literally the bottom line . . . . Countries, on the other hand, do not go out of business. They may be happy or unhappy with their economic performance, but they have no well-defined bottom line. As a result, the concept of national competitiveness is elusive.
Id.
68 See, e.g., Cassel, supra note 65.
69 Restatement (Third) of the Foreign Relations Law of the United States § 402(1), (2) (1987).
70 According to the Restatement, a TNC is considered a national of the state under whose law it is organized or incorporated. Id. at cmt. e.
71Id. at § 403(1).
72Id. at § 414(1).
73Id. at cmt. c.
74 Joshua P. Eaton, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment, 15 B.U. Int’l L.J. 261, 280 n.98 (1997).
75 Frey states:
Economic sanctions are a tool used to punish offending governments; these sanctions have a direct impact on TNCs doing or seeking to do business in these countries. The U.S. Government has sought to extend its influence even further in the cases of Cuba, Iran, and Libya, by adopting legislation that would penalize non-U.S. businesses that have certain types of investments in these rogue states.
Frey, supra note 49, at 168–69 (citations omitted).
76 Daniel Schorr, What the World Thinks of ‘the Embargo,’ The Christian Science Monitor, Jan. 23, 1998, at http://www.csmonitor.com/durable/1998/01/23/opin/column.1. html (last visited Nov. 8, 2002).
77 The GATT/WTO system asserts equal treatment of investors and countries in like circumstances through Most Favored Nation (MFN) status as one of its fundamental principles. The Most Favored Nation provision of the draft documents for the Multilateral Agreement on Investments (MAI) provides one historical example of the international move to eliminate economic embargoes. OECD, The Multilateral Agreement on Investment (Report by the Chairman to the Negotiating Group), Annex 3 art. 2, 13–14 (May 1998), available at http://www1.oecd.org/daf/mai/pdf/ng/ng9817e.pdf (last visited Oct. 6, 2002). According to this provision, once a country grants a certain level of treatment to a foreign investor or a foreign investment from a particular country, it cannot then grant less favorable treatment to any other investment or investor. This principle of the MAI also would have required equal treatment among all target countries.
The Most Favored Nation provision of the MAI provides a valuable example of a general decline in the use of economic or trade sanctions to discourage governments from engaging in abusive practices. For a concise discussion of the decline of MFN status and the rise of Normal Trade Relations status, see, for example, International Trade Data System, Normal Trade Relations (Formerly Known as Most Favored-Nation status (MFN)), at www.itds.treas.gov/mfn.html (last updated Mar. 12, 2002). This would prevent governments from distinguishing between foreign investors or foreign investment targets based on countries’ human rights practices, labor treatment, or other criteria. It should be noted that by denying member states the ability to use economic sanctions and embargoes against nations that violate human rights, a valuable method of enforcing human rights may be eliminated. See Harvard Human Rights Program, The Multilateral Agreement on Investment: A Threat to International Human Rights Protection Mechanisms (1998) (on file with author) (outlining the human rights norms that would have been violated if the MAI had passed). Though not discussed at length herein, a recent article by Barbara Frey provides a comprehensive overview of United States domestic actions on regulating its own corporations that extend their business to foreign countries. See Frey, supra note 49, at 168–73. These efforts include the codes of conduct initiated at the federal level which have already been mentioned in this Article, as well as legislative initiatives to regulate the economic activity of transnational enterprises and regulate the involvement of United States’ corporations in the political affairs of foreign nations. Id.
78 Examples include Social Accountability International’s Social Accountability 8000 campaign, which aims to encourage firms to adhere to a predetermined set of labor and human rights standards by providing them with certification as a SA8000 company if their manufacturers pass inspection. Social Accountability Int’l, An Overview of SAI and SA8000, at http://www.cepaa.org/introduction.htm (last visited Oct. 6, 2002). The success of this effort clearly depends on consumer awareness and activism.
79 See Spar, supra note 65, at 9–10.
80 Id. at 9.
81 For example, after the Nike Corporation adopted its Code of Conduct, it disappeared from the light of public scrutiny. However, the CEO of Nike has revealed that despite Nike’s adoption of a Code of Conduct, which purportedly regulates labor practices of all their foreign subsidiaries and producers, the company does not adhere to those practices. The Big One (Miramax Pictures 1997). In addition, workers who produce Nike products in Jakarta are entirely unaware that Nike has promulgated a Code of Conduct and certainly have neither means of reporting accurately and efficiently on Nike’s adherence to this code, nor means to enforce it. Id.; see also What Would You Do If You and Seven Other Workers at Your Factory Lost Fingers in Dangerous Machinery Because the Factory Owner Couldn’t Be Bothered to Fix It? Haryanto’s Story (Jan. 2000), at http://www.caa.org.au/campaigns/nike/haryanto.html (last visited Nov. 9, 2002).
82 See Spar, supra note 65, at 9–10. In this context, the race to the top suggests that companies, in seeking consumer approval and loyalty, compete or race against one another to protect and promote labor and human rights conditions for their workers or the environmental conditions in the regions where they work.
83 In 1990, in response to Chinese human rights abuses, Reebok announced the following principles:
1.Reebok will not operate under martial law conditions or allow any military presence on its premises.
2.Reebok encourages free association and assembly among its employees.
3.Reebok will seek to ensure that opportunities for advancement are based on initiative, leadership and contributions to the business, not political beliefs. Further, no one is to be dismissed from working at its factories for political views or non-violent involvement.
4.Reebok will seek to prevent compulsory political indoctrination programs from taking place on its premises.
5.Reebok reaffirms that it deplores the use of force against human rights.
Frey, supra note 49, at 180 n.140 (quoting Diane Orentlicher & Timothy Gelatt, Public Law, Private Actors: The Impact of Human Rights on Business Investors in China, 14 Nw. J. Int’l L. & Bus. 66, 108 (1993)) (citing Reebok Code of Conduct).
84 International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; International Covenant on Economic, Social, and Cultural Rights, opened for signature Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR].
85 See, e.g., Aguinda v. Texaco, Inc., No. 01–7756L, 2002 U.S. App. LEXIS 16540, at *10 (2d Cir. Aug. 16, 2002). The plaintiffs in this case, seeking relief based on Texaco’s alleged environmental abuse in Equador, filed suit in part under the Alien Tort Claims Act (ACTA), 28 U.S.C. § 1350 (1789), asserting that Texaco’s actions violated international law. Id. The plaintiff’s legal team convinced the court that if it could prove that Texaco’s decision to pursue environmental degradation in Ecuador that, if conducted in the United States would violate U.S. environmental law, Texaco could not use the procedural defense of forum non conveniens to block the litigation against it. Id. In 2001, after six years of rehearings and remands, the district court dismissed these actions based on forum non conveniens, holding that litigation should proceed in Equador. Aguinda v. Texaco, 142 F. Supp. 2d 534, 537 (S.D.N.Y. 2001), aff’d as modified, 2002 U.S. App. LEXIS 16540 (2d. Cir. 2002). In conducting its forum non conveniens analysis, the district court concluded that plaintiffs would be unlikely to demonstrate that Texaco’s acts were intentional torts actionable under the ATCA. Id. at 544. For further information on this and other cases filed under the ATCA, see http://www.earthrights.org/litigation/index.html (last updated May 28, 2002).
86 For a proposal to extend all relevant U.S. environmental regulations to TNC operations abroad, see Alan Neff, Not in Their Backyards, Either: A Proposal for a Foreign Environmental Practices Act, 17 Ecology L.Q. 477 (1990); see also Mitchell F. Crusto, All That Glitters Is Not Gold: Congressionally-Driven Global Environmental Policy, 11 Geo. Int’l Envtl. L. Rev. 499, 519–29 (1999).
87 Foreign Corrupt Practices Act, 15 U.S.C. § 78dd–1 (1994). See generally A Blow Against Bribery: Michael Hershman on the OECD Campaign over Corruption, Fin. Times (London), Feb. 23, 1998, at 14.
88 Spar notes that it is difficult for competing companies to insist on superior labor standards or pay higher wages due to the force of the market: “if one firm pays the higher wage or refuses to do business with an exploitative low-cost sub-contractor, it risks losing market share to more callous competitors.” Spar, supra note 65, at 10.
89 This argument is perhaps most popularly known as the “giant sucking sound” that Ross Perot, 1992 and 1996 presidential candidate, predicted the United States would hear after NAFTA was signed. See, e.g., Thomas J. Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation, 91 A.J.I.L. 268, 298 (1997).
90 As a means for addressing this issue, Human Rights Watch and others have recently modified their activities around the issue of TNCs to include the activities of all businesses, thereby eliminating the protest on the part of TNCs that they would have to behave under one standard while domestic businesses would have the competitive advantage of less stringent human rights and environmental standards.
91 See, e.g., Spar, supra note 65, at 10.
92 See, e.g., supra note 83 and accompanying text (describing business principles adopted by Reebok in 1990).
93 See Carol R. Wilson, The World Bank Group: A Guide to Information Sources 294 (1991). This guide is a 247 page bibliography that gathers sources about the World Bank that were published or translated into English from 1944 to 1990. Books, periodicals, articles, government publications, pamphlets, and reference works are cited. The heading “human rights” does not even appear in this index. Id. at 301. Under “labor” there is one entry. Id. Similarly, under “Right to Development” there is one entry. Id. at 310. It is interesting to note that while human rights were paid so little attention before the early 1990s, there were twenty-two entries under the heading “environment.” Id. at 290.
94 World Bank Operational Directive, Involuntary Resettlement (OP/BP 4.12) (2001).
95 World Bank Operational Directive, Indigenous Peoples (OP/BP 4.10) (updated version to be adopted 2002).
96 Thomas R. Berger, The World Bank’s Independent Review of India’s Sardar Sarovar Projects, 9 Am. U.J. Int’l L. & Pol’y 33, 41 (1993). The World Bank appointed Mr. Berger Deputy Chairman of the Independent Review of the Sardar Sarovar Projects in September 1991.
97 See id.
98 Id. at 33. “[T]he Independent Review developed out of controversy over whether India and the governments of Gujarat, Maharashtra, and Madhya Pradesh have complied with resettlement, rehabilitation, and environmental impact mitigation policies implicated in the Sardar Sarovar Projects.” Id. at 33 n.2. The Sardar Sarovar project is a massive dam project in the Indian Narmada River valley to which the World Bank contributed a loan in the amount of 450 million dollars.
99 “In some cases, involuntary resettlement resulting from the Sardar Sarovar offended recognized norms of human rights.” Id. at 42-43. The author of the review called this result “ironic, given that both India and the World Bank have been in the forefront of efforts to secure human rights.” Berger, supra note 96, at 43.
100 Berger, supra note 96,. at 47–48. Berger contends that “effective and equitable development” can be best achieved though integrating human rights obligations and a commitment to the environment into the initial design of a project. He criticizes beliefs that integrating these concerns into large-scale projects adds difficulty and cost. These beliefs “imply that human and environmental costs are to be heavily discounted in project planning and execution”, which Berger argues are unacceptable in light of the past. He recommends looking for alternatives to projects that require large scale relocation or severely effect the environment. Id.
101 Richard W. Stevenson, The Chief Banker for the Nations at the Bottom of the Heap, N.Y. Times, Sept. 14, 1997, § 3, at 12.
102 Kofi A. Annan, Essay: Strengthening United Nations Action in the Field of Human Rights: Prospects and Priorities, 10 Harv. Hum. Rts. J. 1, 7 (1997).
103 Stevenson, supra note 101, at 13.
104 The Int’l Center for Not–for–Profit Law, Handbook of Good Practices for Laws Relating to Nongovernmental Organizations: Discussion Draft (1997).
105 See The World Bank Operation Manual: Good Practices: Involving Non-Governmental Organizations in Bank-Supported Activities, GP 14.70 (2000). The February 2000 OPERATIONAL DIRECTIVE 14.70 replaces the original WORLD BANK DIRECTIVE 14.70, issued in March, 1998. Id. This WORLD BANK GOOD PRACTICES DIRECTIVE defines the role of NGOs in its activities. Among other things, it defines the types of NGO involvement and the limitations of NGOs seeking to participate in World Bank activities.
106 See World Report 1998, supra note 43, at xvi–vii.
107 Lawyers Comm. for Hum. Rts., The World Bank, NGOs and Freedom of Association: A Critique of the World Bank’s Draft “Handbook of Good Practices for Laws Relating to Non-Governmental Organizations” 1 (1997) (arguing that improper regulation of NGOs can result in governmental suppression of unpopular organizations).
108 For example, between 1985 and 1993, the World Bank contributed more than half of the 238 million dollars necessary to complete the Indonesian Kedung Ombo Dam Project. The construction of this dam and reservoir resulted in the displacement of 30,000 people in violation of Indonesian law and World Bank Policy. In the Name of Development, supra note 47, at 4.
109 See e.g., 22 U.S.C. § 262d (2000) (governing U.S. participation in international financial institutions, such as the World Bank and encouraging U.S. representatives to vote against aid to countries whose governments engage in gross human rights violations). At least one commentator has argued at length that such legislation runs the risk of harmfully politicizing the World Bank. See Bartram S. Brown, The United States and the Politicization of the World Bank: Issues of International Law and Policy 232 (1992). However, even he acknowledges that:
[t]he bank could justify considering the human rights implications of proposed projects by referring to [its purpose enumerated in its Articles of Agreement]. Apparently some consensus on the relevance of human rights considerations to World Bank lending decisions has been reached among the Group of Seven countries (US, Japan, Germany, Britain, France, Italy and Canada) who control a decisive bloc of power within the Bank.
Id. at 240.
110 Developing States, supra note 53, at 123.
111 In the Name of Development, supra note 47, at 3; see also Victoria E. Marmorstein, World Bank Power to Consider Human Rights Factors in Loan Decisions, 13 J. Int’l L. & Econ. 113, 129–30 (1978).
112 For an assertion that the World Bank and other multilateral development banks are apolitical institutions, see Robert Kneller, Human Rights and Other Restrictions on World Bank Development Assistance: Congressional Policy v. The Apolitical Purposes and Functions of the Multilateral Development Banks 6–16 (1980).
113 See generally The Int’l Bank for Reconstruction and Dev., The World Bank, Development and Human Rights: The Role of the World Bank (1998).
114 Id. at 1–3.
115 Id. at 4, 26–29.
116 Id. at 30.
117 The efficacy of the protests, however, is neither the focus nor the concern of this Article. The protests by rights activists, in the framework of this Article, occur either on the margins of negotiations with the economic community or as a predecessor to such negotiations.
118 See Balakrishnan Rajagopal, Crossing the Rubicon: Synthesizing the Soft International Law of the IMF and Human Rights, 11 B.U. Int’l. L.J. 81, 87–88 (1993).
119 Developing States, supra note 53, at 95.
120 The IMF provides loans to countries facing balance-of-payment problems for the purpose of restoring conditions for sustainable economic growth. These loans enable countries to rebuild their monetary reserves, stabilize their currencies, and continue paying for imports without having to impose trade restrictions or other strict monetary measures. See Rajagopal, supra note 118, at 89.
121 See supra notes 94, 95, and accompanying text (discussing the World Bank Directives regarding involuntary resettlement and indigenous peoples).
122 See Rajagopal, supra note 118, at 89–92.
123 Daniel D. Bradlow, Symposium: Social Justice and Development: Critical Issues Facing the Bretton Woods System, 6 Transnat’l L. & Contemp. Probs. 47, 78–79 (1996). Further, Bradlow contends that it is difficult to even find the IMF’s policy on human rights. The writings and statements of its representatives are the main indication of an IMF position on human rights. These writings and statements, however, send contradictory messages. They sometimes recognize the importance of human rights to the development process but at other times suggest that the IMF can not play a role in promoting human rights. Bradlow argues that these statements do not, however, “explain why, if human rights are so important, the IMF can ignore them in its operations and policies.” Id. at 79 (citation omitted).
124 Id. at 50.
125 Article IV of the IMF’s Articles of Agreement requires the IMF to engage in regular consultations with its member states about their exchange rate policies. Articles of Agreement of the International Monetary Fund, Dec. 27, 1945, art. IV, sec. 1, 29 U.S.T. 2203, 2208–10, 2 U.N.T.S. 39, 51 [hereinafter IMF Articles]. For a description of Article IV consultations, see, for example, Richard W. Edwards, Jr., International Monetary Collaboration 22, 558–68, 571–80 (1985). In practice, these consultations have often extended into a wide range of domestic policies. Bradlow, noting the scope of the consultations, suggests that the IMF has the capability of influencing the human rights practices in its Member States. See generally Bradlow, supra note 123. (citations omitted). During these consultations, “the IMF has been known to engage the Member State in discussions of its policies relating to health care, environment, welfare, housing, unemployment, labor markets, military expenditures, and certain aspects of the management of the State’s public sector.” Id at 50.
Consultations, used by the IMF to develop its policies toward individual countries, can influence the conditions that a country must meet in order to access IMF funds. The degree of the IMF’s influence varies depending on the Member State’s need for financial support. Since the advice given by the IMF in the Article IV consultations may be converted into the conditionalities attached to IMF financing, the IMF is able to exert greater influence over those Member States who need or expect to need its financial assistance. Id.
126 See Joseph Gold, Int’l Monetary Fund, The Rule of Law in the IMF 61 (1980). For more on conditionality and its relation to human rights, see generally Michael Lucas, The International Monetary Fund’s Conditionality and the International Covenant on Economic, Social and Cultural Rights: An Attempt to Define the Relation, 25 Revue Belge de Dedroit International [Beligan Review of International Law] 104 (1992).
127 Bradlow, supra note 123, at 81.
128 See Gold, supra note 126, at 61. Summarizing the IMF’s official position, former IMF President, Michel Camdessus, has stated, “Nothing in our articles tells us that we have to look at the moral quality of the policies of the country. Nor do we have to consider whether the country is perfectly democratic or not.” J. Oloka-Onyango, Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights, 26 Cal. W. Int’l L.J. 1, 25 n.141 (1995).
129 See Int’l Monetary Fund, Social Dimensions of the IMF’s Policy Dialogue 1–4 (1995), available at http://www.imf.org/external/np/exr/facts/social.htm (last visited Oct. 2, 2002) [hereinafter IMF Policy Dialogue]. This pamphlet was presented by the staff of the IMF for the World Summit for Social Development in Copenhagen, March 6–12, 1995.
130 Id. at 1.
131 Id. at 3.
132 Id.
133 Id. at 4–6.
134 “The IMF is collaborating closely with the World Bank and other agencies in the design, implementation, and monitoring of social policies.” IMF Policy Dialogue, supra note 129, at 2.
135
Improvement of monitoring and social policies and social indicators in the context of IMF-supported programs is being pursued as central to the achievement of sustainable high-quality growth. Improving collaboration with the World Bank, U.N. agencies, and others, with the objective that each institution focus on areas of comparative advantage, is the best way to achieve—without duplication of work—a better follow-up on the implementation of social policies in programs.
Id. at 27–28 (emphasis added).
136 This decision emerged out of the annual IMF meeting of September 1999. The PRGF replaced the ESAF as the primary loan assistance program to poor countries facing balance of payment problems. The key features of this program are described herein. For a more detailed description of the Poverty Reduction and Growth Facility, see Int’l Monetary Fund, The IMF’s Poverty Reduction and Growth Facility (PRGF): A Factsheet (Mar. 2001), at http://www.imf.org/external/np/exr/facts/prgf.htm (last visited Oct. 2, 2002) [hereinafter Poverty Reduction]. Prior to 1999, the IMF provided assistance to low-income countries through the ESAF. ESAF arrangements, established in 1987, provide medium-term loans on concessional terms to support macroeconomic adjustment and domestic reforms in poor countries facing trade deficits. For a more detailed description of the Enhanced Structural Adjustment Facility, see Int’l Monetary Fund, IMF Concessional Financing Through ESAF (Sept. 1999), at http://www.imf.org/external/np/exr/facts/esaf.htm (last visited Oct. 2, 2002).
137 See Poverty Reduction, supra note 136.
138 See id. It should be noted that the IMF is still unwilling to use conditionality as a way of promoting or encouraging respect for human rights in borrowing countries. Masood Ahmed et al., Refocussing IMF Conditionality, 38 Fin. & Dev. 4 (2001), available at 2001 WL 19654132.
139 Sergio Pereira Leite, Human Rights and the IMF, 38 Fin. & Dev. 4 ( 2001), available at 2001 WL 19654133.
[T]he May 2000 PRSP of Burkina Faso centers on human security: economic security (access to education, vocational training, and paid employment), health security (access to low-cost preventive and curative medical care), food security (access to basic foodstuffs and safe water), environmental security (preservation of the environment), and individual and political security (the rule of law, responsibility, participation, efficiency, and transparency). The Burkinabč strategy does not promise that human security will be fully achieved during the life of the program, but it places a high priority on human rights in its development and structural adjustment efforts.
Id.
140 Countries that have involved human rights in their poverty reduction strategy include Bolivia, Cambodia, Cameroon, Nicaragua, Rwanda, Tanzania, Uganda, and Vietnam. Id. Sergio Pereira Leite notes that:
Nicaragua’s September 2001 PRSP proposes measures to demarcate lands belonging to indigenous communities, assist the poor to meet housing needs, protect children in high-risk conditions, implement programs for the elderly, prevent domestic violence, strengthen the Office for Human Rights, and protect the rights of indigenous peoples. Rwanda’s November 2000 PRSP includes a framework for good governance that incorporates a human rights program, as well as capacity building for the country’s Human Rights Commission.
Id.
141 See. e.g., IMF Policy Dialogue, supra note 129, at 27–28. See generally. Int’l Monetary Fund et al., A Better World For All (2000), available at http://www.imf.org/ external/pubs/ft/jointpub/world/2000/eng/bwae.pdf (last visited Oct. 2, 2002) [hereinafter A Better World For All].
142 Leite, supra note 139.
143 See WTO, Coherence—Closer Cooperation Between Multilateral Institutions, available at http://www.wto.org/english/thewto_e/coher_e/coher_e.htm (last visited Oct. 2, 2002) (containing links to all relevant documents regarding coherence and cooperation with the World Bank and the IMF).
144 See, e.g., United Nations, Economic and Social Council, Commission on Human Rights, The Realization of Economic, Social and Cultural Rights: Human Rights as the Primary Objective of International Trade, Investment and Finance Policy and Practice, U.N. Doc. E/CN/Sub.2/1999/11 (1999); United Nations Economic and Social Council, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Statement of the United Nations Committee on Economic, Social and Cultural Rights to the Ministerial Conference of the World Trade Organization, U.N. Doc. E/C.12/1999/9 (1999).
145 See United Nations, Economic and Social Council, Commission on Human Rights, The Realization of Economic, Social and Cultural Rights: Human Rights as the Primary Objective of International Trade, Investment and Finance Policy and Practice, U.N. Doc. E/CN/Sub.2/1999/11 (1999); United Nations Economic and Social Council, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Statement of the United Nations Committee on Economic, Social and Cultural Rights to the Ministerial Conference of the World Trade Organization, U.N. Doc. E/C.12/1999/9 (1999); United Nations, Economic and Social Council, Commission on Human Rights, Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, U.N. Doc. E/CN.4/Sub.2/2001/13 (2001); United Nations, Economic and Social Council, Commission on Human Rights, Economic, Social and Cultural Rights: Liberalization of Trade in Services and Human Rights, U.N. Doc. E/CN.4/Sub.2/2002/9 (2002); United Nations, Economic and Social Council, Commission on Human Rights, Economic, Social and Cultural Rights: Globalization and Its Impact on the Full Enjoyment of Human Rights, U.N. Doc. E/CN.4/2002/54 (2002) (encompassing the report by the High Commissioner on Human Rights regarding human rights approaches to the WTO’s Agreement on Agriculture).
146 See, e.g., Howse & Mutua, supra note 7, at ¶ 3.
147 WTO, Ministerial Declaration, WT/MIN(01)/DEC/1 (Nov. 14, 2001), available at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm (last visited Nov. 9, 2002).
148 See, e.g., Mike Moore, Making Globalization Work, Speech to the International Confederation of Free Trade Unions (ICFTU) (Feb. 20, 2002), available at http://www.wto. org/wto/english/news_e/spmm76_e.htm (last visited Oct. 2, 2002).
149 WTO, Annual Report 2002, at 2 (2002). The Annual Report also notes:
Agreement still remains elusive on precisely how existing rules should be changed and what form necessary new rules should take. But at Doha the WTO achieved something that many skeptics had suggested was beyond the organization’s grasp: the launch of a new trade round. Even the sternest critics of globalization today accept that the alternative to multilateral rules is reliance on the law of the jungle. With the Doha Development Agenda, we are now on course to negotiate the necessary changes and new rules.
Id. at 2.
150 Id at 4. The report states, in part:
Although there is no consensus among WTO Members in favour of involving NGOs directly in the organization’s work, the existing guidelines on external relations were designed by Members to give the Secretariat an appropriate degree of flexibility to allow responsible NGOs a voice in the dialogue. Within these guidelines, an increasing number of symposia have been held, involving a wide range of civil society actors, including parliamentarians, chambers of commerce, trade unions and many groups with particular focus on such issues as development and the environment. We have also greatly improved the dissemination of information to the general public through our website, which in the first quarter of 2002 recorded more than half a million visitors per month. Visitors downloaded monthly the equivalent of over 100 million pages of text.
Id.
151 Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 Am. U.J. Int’l L. & Pol’y 1, 4 (1996). For another proposal to introduce rights into the WTO, see Daniel S. Ehrenberg, From Intention to Action: An ILO-GATT/WTO Enforcement Regime for International Labor Rights, in Human Rights, Labor Rights, and International Trade 163, 163–181 (Compa & Diamond eds., 1996).
152 Stirling, supra note 151, at 33.
153 Id.
154 See generally id.; Howse & Matua, supra note 7 (pointing to Article XX as a mechanism for the inclusion of human rights concerns in the policies and decisions of the WTO).
155 GATT, opened for signature Oct. 30, 1947, G1 Stat. A3, 55 U.N.T.S. 184, 262. This was amended in 1994. See id. at art. XX.
156 Stirling, supra note 151, at 35–36.
157 A number of nations have declared their commitment to a wide range of labor protections, leading to the establishment of the World Commission on the Social Dimension of Globalization within the International Labour Organization. See International Labour Organization, World Commission on the Social Dimension of Globalization: Background, at http://www.ilo.org/public.english/wcsdg/background.htm (last vi-sited Oct. 16, 2002).
158 Stirling, supra note 151, at 38.
159 Id. at 39. “These rights would include freedom from torture, collective punishments, prolonged arbitrary detention, genocide, slavery, or threats to commit any of these acts.” Id.
160 See ICESCR, supra note 84, at art. 7 (recognizing the right of everyone to the enjoyment of just and favorable conditions of work, which include fair wages and equal remuneration for work of equal value, as well as a right to safe and healthy working conditions). Stirling does, however, include freedom from slavery in her short list of human rights which should be enforced by the proposed WTO human rights body. Stirling, supra note 151, at 39. The right to freedom from slavery is set out in the ICCPR, stating: “No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.” ICCPR supra note 84, at art. 8.
161 See Mike Moore, Director General’s Farewell Speech to the General Council (July 31, 2002), available at http://www.wto.org/english/news_e/spmm_e/spmm89_e.htm (last visited Oct. 2, 2002). He states therein that “The Doha Development Agenda is urgent too because more than half of the world’s population continue to live on less than 2 dollars a day and a successful conclusion to the round can help lift billions of people out of poverty. This Agenda is about them. Our greatest motivation is the people we serve.” Id.
162 Id.
163 See generally A Better World For All, supra note 141.
164 See ICESCR, supra note 84, at art. 12(2)(a). The document does, however, detail the combined goals of all these organizations to improve and promote this and other “social issues” which, in the ICESCR and the ICCPR, have previously been accorded the status of rights. See generally A Better World For All, supra note 141.
165 Townhall Meeting: IMF Managing Director Host Kohler and World Bank President James Wolfensohn with Civil Society Representatives Participating in the International Conference on Poverty Reduction Strategies (Jan. 17, 2002), available at http://www.imf.org/external/np/tr/ 2002/tr020117a.htm (last visited Oct. 2, 2002).
166 See, e.g., Stirling, supra note 151, at 15–16, 45–46.
167 See Saskia Sassen, The Global City: New York, London, Tokyo 335 (1991). Sassen points to the many ways that the distinctions between important cities are merging or blurring. For example, she illustrates that this is happening through a hegemonization of culture with the result that each city is losing its individual character, and she also proposes that for those individuals whose work and leisure makes them dependent on more than one of these hubs, the boundaries that once defined travel between countries are disappearing. See id. at 335–38.
168 Black’s Law Dictionary defines village as: “a modest assemblage of houses and buildings for dwellings and business. . .[or] a municipal corporation with a smaller population than a city.” Black’s Law Dictionary, supra note 11, at 1563. A city is defined as “a municipal corporation . . . headed by a mayor and governed by a city council.” Id. at 237.
169 See id. at 237, 1563 (defining city and village). It is not the purpose of this article to discredit the use of terms like global city and global village. However, it is important to note how the use of cities and villages for illustrative analogy is not entirely accurate. Because this Article discusses issues that arise in the collision of populations that are real and analogized, it is necessary to illustrate the failings of these words for the analytical purposes of describing globalization.
170 For the suggestion that such an order is possible, see Kenneth S. Carlson, International Administrative Law: A Venture in Legal Theory, 8 J. Pub. L. 329, 329–77 (1959).
171 Compare IMF Articles, supra note 125, with Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945, 60 Stat. 1440, 2 U.N.T.S. 134. It is not at all surprising that these institutional charters are very similar. They were both born from the Bretton-Woods conference, which was executed by a small number of participants with similar visions for economic stability.
172 This is not to diminish the differences between human rights documents. Clearly, there are differences, but it is indisputable that there are also similarities in language, in the rights advanced, and in the liberal philosophy that underlies the documents.
173 For a description of the creation of this United Nations Working Group see S. James Anaya, Indigenous Peoples in International Law 51 (1996). For a detailed description of the success of this Working Group and evidence that it does provide a forum for indigenous people from a multitude of countries to develop principles that will protect them, see David Weissbrodt et al., An Analysis of the Forty-ninth Session of the United Nations Sub-Comission on Prevention of Discrimination and Protection of Minorities, 11 Harv. Hum. Rts. J. 221, 237 (1998).
174 See, e.g., Int’l Monetary Fund, Diversity Policy, available at http://www.imf. org/external/np/adm/rec/policy/divpolicy.htm (visited Oct. 2, 2002) (stating the IMF’s commitment to strive for balance in the gender and nationality composition of its staff in order to achieve its goal of creating a successful international work place).
175 See Arjun Appadurai, Modernity at Large 22–23 (1996) (portraying the propensity to group cultures according to difference rather than similarity). While Appadurai may be correct that “the emergent postnational order” may be based on relations between interest groups, this Article challenges his assertion that the negotiations that make up those relations will result in “increased incivility and violence.” Perhaps because this Article discusses the interaction between two communities that hold in common the liberal social contract of the modern West, it focuses on points of cooperation rather than pure contestation. See id. at 23.
176 See Carlson, supra note 170, at 182.
177 One should note here that the remainder of the discussion further illustrates what Robert O. Keohane describes as “harmony;” the situation in which two international communities’ “policies (pursued without regard for the interests of others) are regarded . . . as facilitating the attainment” of each community’s goals. Robert O. Keohane, After Hegemony 53 (1984).
178 Id.
179 The failed MAI and the criticism that surrounded it illustrate this type of interchange. See supra note 77 and accompanying text. The rights that the MAI aimed to enforce, as was discussed above, directly impacted upon pre-established universal human rights. However, aware of the existence of human rights doctrine, especially in light of the NAFTA and GATT negotiations, the OECD attempted to conduct the negotiation for the MAI without regard for the conflicts between international economic and international human rights law that it would create. Unwilling to negotiate directly with human rights institutions or NGOs, however, the mutinous MAI would have created a site of unresolved discord between the human rights community and the economic community. The resulting conflict, in fact, lead to the death of the MAI. Another, now infamous, example lies in the 1999 anti-globalization protests and those that have subsequently ensued.
180 One should note that codes of conduct may have limited effect. For example, a recent report shows that even though Nike has implemented a code of conduct, it never posted a code of conduct on the premises of any of its Jakartan facilities, the workers had never heard of a code of conduct, the terms of the code of conduct were never implemented, and the code was commonly violated. See Nike Sweatshop Suit (Nat’l Public Radio broadcast, Apr. 21, 1998) (on file with author); Jennifer Lin, Anti-Nike Backlash Growing over Worker-Abuse Reports, The Florida Times-Union (Jacksonville), Apr. 4, 1998, at A1 (describing instances of worker abuse in Nike factories in Vietnam and South Korea).
181 The discussion herein of the IMF decision to examine social issues in connection with its involvement in particular countries demonstrates that countries may be willing to submit to examination and scrutiny of their domestic human rights practices in order to access IMF funds. There have been no instances in which a country decided not to use IMF funds because of this new policy.
182 See, e.g., Margaret Garritson de Vries, The Bretton Woods Conference and the Birth of the International Monetary Fund, in Bretton Woods, supra note 28, at 4 (stating that officials in the U.S. State Department in the early 1940s, convinced that “economics had been the missing ingredient in the failed League of Nations’ efforts to secure world peace, were thinking in terms of a liberal international trade regime after the war”).
183 Bretton Woods, supra note 28, at vii.
184 See id.
185 For examples of this experience see Appadurai, supra note 175, at 1–23, 48–65. It is also significant that English has been accepted overwhelmingly as the diplomatic national language of this cosmopolitan class. For example, 96 members of the GATT conduct their work in English alone. Coulmas, supra note 5, at 188.
186 Lakoff, supra note 4, at 12.
187 See, e.g., Chuang, supra note 3, at 73, 80–90 (discussing definitional issues regarding the classification of forced labor and trafficking practices).
188 Each year, over 100 people are trained at Harvard Law School alone in a negotiation seminar that teaches the negotiation models proposed in Roger Fisher, Getting to Yes: Negotiating Agreement Without Giving In (2d ed. 1991). While it is not clear that it is one of the purposes of such workshops and of the book, the effect is that many of the world’s most educated and able negotiators are educated on the same methods and rules of negotiation and share a common idea of what form such negotiations should take. It is also relevant that this book is translated into many languages, providing this methodology to negotiators without English skills in a large portion of the world.
189 See Coulmas, supra note 5, at 154–66.
190 Id. at 154.
191 Examples of this result have already surfaced and will be discussed below.
192 Anthony & Gates, supra note 6, at 520; Coulmas, supra note 5, at 157; Steven Pinker, The Language Instinct: How the Mind Creates Language 33 (1995). In order to facilitate the following discussion, readers should understand the definition of the following terms: Pidgin: A simplified speech used for communication between people of different languages. The linguistic variation known as “ pidgin” develops in areas where intense social intercourse between members of drastically different cultures takes place. Pidgin, which develops out of this linguistic heterogeneity, is a simplified system of communication. The maturation of pidgin and its adoption by subsequent generations results in a creolization of the language. Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction 100 Yale L.J. 1329, 1342 n.49 (1991). Creole: a language based on two or more languages that serves as the native language of its speakers; a creole language emerges when new students of a pidgin language do not have access to the languages that originally formed the pidgin language and therefore learn the pidgin language as an integral language. Creoles are sophisticated variations of pidgin with increased vocabulary and grammatical devices and are considered normal languages by sociolinguists. Pinker, supra, at 33; Matsuda, supra, at 1342–43. Lingua Franca: Any of various languages used as common or commercial tongues among peoples of diverse speech; something resembling a common language. Vehicular Language: In its broader definition, this term can be used synonymously with lingua franca. Coulmas, supra note 5, at 190 (citing William J. Samarin, Lingua Francas of the World, in J.A. Fisherman, Readings in the Sociology of Language 661 (1968)).
193 Coulmas, supra note 5, at 161–62; Pinker, supra note 192, at 33–34.
194 Coulmas, supra note 5, at 158–59.
195 Id. at 159.
196 While it is true that the individuals forging links between these two communities are highly scrutinized by their colleagues, there is no evidence that they are generally disrespected within their own fields.
197 For another articulation of this inequality, see David Kennedy, Receiving the International, 10 Conn. J. Int’l L. 1, 4–5 (1994).
198 It is interesting and important to note that pidgin languages and linguas franca are not a phenomenon only of historical economic activity between people of different origins. There is evidence that for many leaders of economic policy from non-English- speaking nations, the ability to communicate at some level of proficiency was essential in an economic world order dominated by English. Victor L. Urquidi, one of the primary Mexican representatives at the Bretton Woods Conference writes:
Because my English was better than Cosio-Villegas’s, though far from entirely correct (English, by the way, was the only official working language and no simultaneous interpretation was available), I had drafted [a statement on the reorientation of the IMF and World Bank goals to include development rather than only reconstruction] myself and read it out loud.
Urquidi, supra note 18, at 42.
199 See discussion of World Bank-NGO consultation supra Part II.
200 See discussion on IMF consideration of social issues infra note 163–165, and accompanying text. As economic and social developments are mutually reinforcing, these policies are essential for reducing poverty and engendering social integration in the medium term. At the same time, the IMF also recognizes the importance of sound social policies aimed directly at achieving social objectives. Increased attention to these aspects of the IMF’s work would serve to enhance the political sustainability of economic reforms.
201 IMF Policy Dialogue, supra note 129, at 3.
202 See United Nations, General Assembly, Report of the World Summit for Social Development, U.N. Doc. A/Conf.166/9 (1995), available at http://www.un.org/documents/ga/conf166/aconf166–9.htm (last visited Oct. 2, 2001).
203 IMF Policy Dialogue, supra note 129, at 2.
204 Id. at 3 n.1.
205 ICESCR, supra note 84, at art. 1; ICCPR, supra note 84, at art. 1.
206 See, e.g., ICCPR, supra note 84, at arts. 1, 2, 25; ICESCR, supra note 84, at arts. 18, 19.
207 This right is protected by a number of the provisions of both the ICCPR and the ICESCR.
208 Philip Alston, Making Space for New Human Rights: The Case of the Right to Development, 1 Harv. Hum. Rts. Y.B. 3, 3 (1988).
209 Sirgun I. Skogly, Book Review: Human Rights in the New Europe: Problems and Progress, 89 A. J. Int’l. L. 242, 244 (1995).
210 Carol Cohn, Sex and Death in the Rational World of Defense Intellectuals, 12 Signs 687, 716 (1987).
211 Id. at 688.
212 Id. at 708.
213 Id.
214 Howse & Mutua, supra note 7, ¶ 3.
215 Cohn, supra note 210, at 718.
216 Ruth Sullivan, The Promise of Plain Language Drafting, 47 McGill L.J. 97, 98 (2001).
217 See Barbara Stark, “Violations of Human Dignity” and Postmodern International Law, 27 Yale J. Int’l L. 315, 315 (2002).