Globalization
and the Rule of Law
Introduction
The International Commission of Jurists (ICJ) chose
to consider at its Cape Town 1998 Triennial Meeting the issue of globalization
and its implications for the enjoyment of human rights.
This paper was prepared as part of the discussion about what role the ICJ
can play in a changing world.
References to ‘globalization’ not only remind us that people are
increasingly connected throughout the world, but they are also a reminder that
trade liberalization, new technology, and localized activity aimed at global
markets, all mean that the role of the State, and the fora where States ‘do
business’, are changing. New
actors such as global media corporations, regional organizations and
non-governmental organizations are considered by some commentators to be the new
global players. (Ramonet 1997) For
others a new culture is emerging thanks to: international banks, international
commercial organizations, transnational lobbies such as OPEC,
world wide news services such as the BBC and CNN, and of course
multinationals. (Barber 1998). And the WTO, rather than the United Nations, is
seen as the fulcrum of international interaction. (Ramonet 1997). Of
course the shift by sociologists from looking at societies, or nation States,
towards looking at connections across time and space does not necessarily imply
a weakening of the nation State - merely a change in emphasis.
Globalization is not really one particular process but rather it is a
handy term used to describe, lament, excuse or even advocate change. (Goldblatt
et al. 1997)
According to the UN Committee on Economic, Social and Cultural Rights,
the actual developments associated with globalization are not themselves
‘necessarily incompatible with the principles of the Covenant or with the
obligations of governments thereunder.’ Nevertheless,
they go on to warn that:
‘Taken
together, however, and if not complemented by appropriate additional policies,
globalization risks downgrading the central place accorded to human rights by
the United Nations Charter in general and the International Bill of Rights in
particular. This is especially the
case in relation to economic, social and cultural rights.
Thus, for example, respect for the right to work and the right to just
and favorable working conditions of work is threatened where there is an
excessive emphasis upon competitiveness to the detriment of respect for the
labour rights contained in the Covenant. The
right to form and join trade unions may be threatened by restrictions upon
freedom of association, restrictions claimed to be “necessary” in a global
economy, or by the effective exclusion of possibilities for collective
bargaining, or by the closing off of the right to strike for various
occupational and other groups. The
right of everyone to social security might not be ensured by arrangements which
rely entirely upon private contributions and private schemes.’[3]
It is not the fact of the expanding global market, deregulation or
privatization which is destroying rights but rather the ways in which States are
responding to the new developments. Rather
than abandoning the State as a focus for human rights activism we may need to
refocus on the existing obligations of the State. Whether globalization is really leading to the demise of the
nation State, or an even stronger global polity based on international law, are
still open questions. It may be
fair to assume that in at least some contexts the globalization of certain
decision-making processes is actually leading to a greater role for the State
and for international law and international decision-making processes.
If we look at some of the challenges facing non-governmental
organizations (NGOs) it seems that, not only are governmental policies driven by
a new set of considerations relating to survival in the global marketplace, but
technological changes are bringing in their wake new problems and opportunities.
Many of these changes are taking place at a rate of change that has made it
difficult for lawyers and legislators to keep up. For example: old norms about
the free transnational flow of information and data have yet to be rethought in
order to regulate access to private data banks, pornography and child
prostitution through the INTERNET. Or,
in another context we might highlight the fact that wages and working conditions
are increasingly determined by actors that are sometimes difficult to locate and
hold accountable, either at the national or the international level.
The two questions we have to ask are: what steps are being taken in the
world of human rights and international law to hold some of these forces
accountable to international standards? and what is being done to ensure that
States fulfil their international obligations to everyone in their
jurisdictions?
Although the concept of a multinational company operating transnationally
is nothing new, the term globalization helps to remind that new communications
technology means that companies really can have global reach and local
operations without actually establishing themselves with permanent regional or
national headquarters. The fact
that human rights groups can not easily fix such non-State actors in a certain
place has led us to believe that some of these global actors are everywhere and
nowhere at the same time. On the
other hand the increased possibilities opened up by cheaper global
communications also mean that NGOs can alert each other to the impacts of these
new decision making processes. There
are now huge opportunities for global campaigning outside the structure of
formal inter-State meetings. To
summarize this last point we could say that globalization in this context
contains two dynamics. First, it
reminds us that transnational corporations are continuously seeking out new
workforces, markets and opportunities for investment; and second it prescribes
global networking by NGOs as a necessary reaction as part of their assessment of
the human rights impact of this development.
In addition to this increase in the reach of certain transnational actors
we are witnessing a redistribution of tasks by States at the
international level. Some functions
which used to be carried out through inter-State cooperation have been taken
over by private/regional/global actors that are difficult to hold accountable
under international procedures in general, and traditional human rights
procedures in particular. For
example: mercenaries and private armies have been employed by the governments of
Sierra Leone and Papua New Guinea to carry out security and police functions,
and privatized prisons are increasingly popular.
Turning from the privatized sphere to new spheres of regionalized
activity, we have seen that asylum law can now be determined in closed meetings
of the Ministers of the European Union. And where regional organizations have
failed to produce answers there is a tendency to revert to global powers to
resolve key issues of international peace and security: the tendency to tender
out functions that used to be carried out by actors with some international
legitimacy and accountability is clearly demonstrated by the new models of
peace-keeping and peace-enforcement. The
United Nations now relies on interested parties to carry out tasks which used to
be predicated on the imperative that the participants be disinterested and
impartial in the execution of their
mandate. Global actors such as the
United States, Russia and France have been authorized to carry out and lead
operations in Somalia, Haiti, Rwanda and Georgia.
Regional forces have been encouraged and contracted to do peace-keeping
in Liberia, Central African Republic, Sierra Leone, and Burundi.
In his programme for reform, issued in 1997, Secretary-General Kofi Annan
clearly Stated that the UN is surrendering any role it might have had in this
area:
The
United Nations does not have, at this point in its history, the institutional
capacity to conduct military enforcement measures under Chapter VII. Under present conditions, ad hoc coalitions of willing Member
States offer the most effective deterrent to aggression or to the escalation or
spread of an ongoing conflict. As
in the past, a mandate from the Security Council authorizing such a course of
action is essential if the enforcement operation is to have broad international
support and legitimacy.[4]
We can see therefore that there remains some sense
that respect for international legitimacy (the international rule of law)
remains a goal - even if the main actors are now better described as global or
regional rather than international.
These introductory thoughts on some of the ways we think about
globalization are designed to set the scene for a more selective discussion of
three topics:
(1)Threats to universality and emerging concepts of
responsibility.
(2) The emerging supranational judiciary and new
challenges for the rule of law.
(3) Trade and investment liberalization and their
impact on respect for human rights.
We will situate these topics in this new globalized/regionalized
context and examine them through the prism of some of the ICJ’s ‘principles
of the rule of law.’ (ICJ 1966). In
particular three aspects of these principles seem worth highlighting:
(a) the importance of a judicial system which
respects fundamental rights and human dignity
(b) the need for a government responsible to the
people
(c) public participation in designing and publicizing
legal solutions to human rights problems.
1. Questions of Universality and Responsibility
(a) Threats to universality through lack of attention
to economic, social and cultural rights
Some sort of balance, between attention to civil and
political rights on the one hand, and economic and social rights on the other,
used to be ensured by the bloc politics at the United Nations.
Now the universality of the human rights catalogue is seriously under
fire as the ideological supporters of economic and social rights no longer find
this a useful stick with which to beat their opponents. The message that
economic and social rights form a central part of human rights law is under
attack at the universal level. There
is now less ideological enthusiasm for these rights, which are sometimes seen as
linked to socialist ideas, but the bigger problem is lack of interest.
There are now a number of new ways to promote and protect economic and
social rights as international financial institutions, including regional
development banks, start to pay attention to the ‘social dimension’ of their
policies. The ICJ’s regional
policies with regard to Asia, the Americas, Europe, Africa, the Middle East and
North Africa, could provide meaningful progress on economic and social rights if
ways can be found to combine these with dialogue with the relevant international
financial institutions. Of
course it is not just that the relevant international and regional financial
institutions are paying more attention to the environmental and social impact of
their development policies, part of the interest in engaging in a new dialogue
with them lies in the fact that the policies of these powerful lending
institutions are determining national decisions with regard to public spending
on health, education, housing and the security forces.
Introducing human rights in this context is usually seen as an attempt to
politicize a discussion or create a special platform for the governments
opponents. But an approach based on
the existing legal obligations of States which stresses human development could
potentially have a large impact on the enjoyment of human rights in countries
negotiating structural adjustment policies with these powerful international
financial institutions.
The idea that human rights organizations such as the ICJ should attempt
to tackle the structural problems
associated with the denial of human rights through dialogue and education in the
development field is not new. In
fact, the point was already made in the study by Philip Alston conducted for the
ICJ in 1981: Development and the Rule of
Law: prevention versus cure as a human rights strategy:
the
achievement of more comprehensive,
longer term, solutions also requires [human rights groups] to reach out and seek
to foster awareness of human rights issues among a wide range of groups which
lie outside the more traditional spheres of influence and action.
Until programmes of human rights education are promoted at all levels,
until economists, planners and government officials become convinced of the
inherent worth of promoting human rights objectives and until religious,
development, and other specialist NGO groups are persuaded of the value of
promoting respect for human rights in the context of their own activities, many
of the efforts made to protect human rights will continue to touch only
indirectly, if at all, the wellsprings from which flow the conditions conducive
to human rights violations. (Alston 1981:22)
The ICJ’s
dual role as a human rights advocate and guardian of the rule of law places it
in a particularly useful position
to, not only integrate human rights thinking into new spheres, but also to
address the new sites where international decision-making is determining the
likelihood of respect for human rights. Because
many of these decisions are now taken within a legal framework new opportunities
are opening up to remind these decision-makers that human rights are not merely
moral aspirations or ethical expectations.
Human rights norms have become binding obligations at the national and
international levels. The challenge
now is not only to convince economists and others that respect for human rights
does not undermine economic progress, but also to present the international
human rights legal framework as compulsory considerations that have to be
accommodated rather than ignored. As
we will see later we now have to consider how to ensure that investment and
trade dispute mechanisms actually incorporate respect for human rights rather
than downgrade them to a preambular piece of rhetoric. This requires both educational and legal strategies.
We have to go beyond promotional work and convincingly show how
human rights law is relevant and binding in the world of economics and
development. There is meagre
evidence of human rights groups successfully infiltrating the economic,
financial, commercial and development spheres since the 1981 study.
In fact seventeen years later it seems that, if anything,
international lawyers seem to be even more inclined to treat human rights
law as a specialist field, and according to Alston, the development of
international law itself is currently divorced from the emerging globalization
forces. (Alston 1997:446-7)
Let us take a look at some of the issues through our rule of law prism.
First we have to conclude that, despite the insistence that international
financial institutions exist in order to help ensure greater enjoyment of
economic, social and cultural rights, the mechanisms for judicial review of the
activities in order to ensure that there is no violation of those same rights is
sadly lacking. Our conclusion is
that this is not due to any fundamental legal obstacle.
It is rather a result of inadequate attention by human rights activists
and lawyers to finding ways to remind these institutions that: not only do they
have promotional duties - but they must also operate within the rule of law.
In this context the environmental movement has had considerable success
by achieving the establishment of the World Bank Inspection Panel to rule on
actions taken by the Bank which might affect people’s environmental rights.
Again because most global actors, such as the international financial
institutions, are operating in ways which bypass the established international
human rights law framework, we find little monitoring and no particular judicial
or other instance to hold them accountable.
This of course has implications for the other principles of the rule of
law related to governmental accountability and public participation in
decision-making. There seems
to be enormous potential for civil society and non-governmental organizations to
work with the governments and the different regional and international financial
institutions in order to improve the planing and execution of projects around
the world. A strategy which focused
on the justiciability of the actions of the institutions, the accountability of
the governments, and the participation of the people could go a long way to
exploiting the possibilities in this sphere.
The International Commission of Jurists, as part of their follow up to
the 1995 Bangalore Conference, organized a regional seminar on economic, social
and cultural rights, in collaboration with the African Development Bank (ADB),
in Abidjan. The Conclusions from
that meeting provide a useful springboard for the development of a universal
approach to some of the problems discussed.
By calling on the ADB to play a leading role in supporting projects aimed
at the realization of economic, social and cultural rights, the ICJ clearly
makes the case for globalization with a human face.
(ICJ 1998:3). But the conclusions go further and
assert that: ‘Corruption and impunity for perpetrators of this menace exist
side by side with the quest for good governance and the enjoyment of economic,
social and cultural rights..... Corruption and impunity legitimise the misuse of
national resources in the public and private sectors and reduces the chances of
any meaningful development.’ The
Abidjan Recommendations State that participants had agreed ‘To begin a
campaign against corruption and [the] impunity of its perpetrators by developing
normative strategies along the lines of the struggle against drug trafficking.
In this regard it is recommended that the process towards the drafting of
an African Convention against Corruption should be initiated with the assistance
of the ICJ and a monitoring system put in place in the form of an “observatoire.”’
By linking corruption to the enjoyment of economic, social and cultural
rights the ICJ has made an important conceptual leap forward which has
implications with respect to the sorts of partnerships they form in this area.
Although it may be useful to concentrate efforts in Africa in the short
term, corruption is also being subjected to normative codes and treaties in
other regions and now represents something of a global phenomenon demanding
global solutions.
Peter
Eigen, Chairman of Transparency International - a Berlin-based public interest
group that hopes to do for corruption what Amnesty International does for human
rights - says its not just a Third World problem anymore.
Multinational corporations that indulge in corrupt practices abroad bring
that culture back home like a virus. “In
the past many have felt that this is a necessary way of doing business, that you
could isolate the practices of a company outside the country.
We feel that in the global village this is a global illusion.
That culture is coming back like a boomerang. (Hirsh 1996:57)
By making the link that fighting corruption is part
of the fight for human rights the ICJ has opened up the chance to use its
expertise in the rule of law, and the enforcement of economic, social and
cultural rights, in new spheres. Not
only is there a chance to build new alliances with those NGOs working to monitor
corruption, but the ICJ might become involved in some of the legislative
inter-governmental exercises taking place in Africa, the Organization for
Economic Cooperation and Development (OECD), and the Council of Europe.
(b) Asian
values and the new emphasis on responsibilities
Let us now consider another aspect of the
universality debate. In recent
times it has become a commonplace to associate the question of universality with
the assertion that human rights do not reflect ‘Asian values’, and that the
time has come to review the Universal Declaration of Human Rights.
Yash Ghai has presented one theory as to why the end of the Cold war and
the accompanying resurgence of rights has been met with a challenge to
universality.
The
emphasis on rights was not welcomed by all States, however.
Those States which had felt immune from international scrutiny of their
authoritarian political systems (which in East and South East Asia had been
justified on the basis of the menace of communism) found themselves a little
like the emperor without clothes. They
were anxious at what were considered to be the likely consequences of this new
stress on human rights for their political systems. They were also resentful of conditionalities that derogated
from their political and economic sovereignty.
The universalization of rights was seen as the imposition of Western
norms. They were anxious because of
the effects of these rights on their competitiveness in the framework of
international trade that was ushered in by globalization, and they claimed to
detect in this emphasis a Western conspiracy to undermine newly growing
economies. (Ghai 1997:10)
One of the most recent and widely reported challenges
to the Universal Declaration of Human Rights came in 1997 from Tun Daim
Zainuddin, Economic Adviser to the Malaysian Government. He stated that when the
Declaration was proclaimed ‘there were only about 40 Members of the UN.
Today there are more than 180 Members.’
And that there was a need to make the Declaration ‘relevant for present
times and to make it acceptable to all nations and peoples.’
(As quoted by Cumaraswarmy 1997:118).
The response of human rights scholars and activists has been to reassert
the relevance and legitimacy of the Universal Declaration.
We might differentiate three approaches.
The first asserts that the Universal Declaration draws on different
cultural perspectives, even if not all the States that exist today were actually
represented as such. Ramcharan, for
example has researched the actual contribution of Asian, African and Latin
American leaders at the time of the drafting of the Declaration and concludes
‘It is true that at this time large parts of the developing world were under
colonial tutelage. But they had
their champions and spokespersons among the drafters of the Universal
Declaration, who did them proud. The
Universal Declaration, beyond a doubt, drew on the intellectual patrimony of the
peoples of the world.’ (1997:111) A second approach stresses that the adoption of the Vienna Declaration and Programme of
Action in 1993 leaves no ‘doubt or ambiguity about the universality of human
rights.’ (Cumaraswarmy 1997:120).
Francis Deng has detailed a third approach. He reminds us that ‘It is
important to bear in mind that it is never the victims, but the violators of
human rights principles and their advocates who invoke the relativist argument
against the principle of universality.’ (1997:56) He goes on to stress the
importance of affirming the ‘normative principle that cultural relativity
cannot be used as a pretext for violating international humanitarian and human
rights standards. On the contrary,
diverse cultures and heritages should be perceived as unique opportunities for
reinforcing human rights standards with culturally-specific principles and
methods of promoting human dignity above any difference of race, ethnicity,
culture or religion.’ (1997:79).
This second dimension of the universality question leads us to consider
attempts to reorientate the human rights message around the concepts of
community, family and individual responsibility. Although sometimes presented as
reflecting an ‘Asian’ approach, such a reorientation is also seen as having
the potential to undermine the primary notions of State responsibility for the
protection of all human rights and the inalienability of human rights. Human rights are in danger of being seen as something that is
earned through good behaviour. But
the individual already has duties and responsibilities under human rights law.
The Universal Declaration itself elaborates this point in its Article 29.[5]
The problem is not really a conceptual one.
The issue is one of emphasis. There
is a perception that governments are seeking to reorientate the human rights
message so as to shift the focus away from their own responsibilities.
The ICJ is already heavily involved in a number of fields where
governments are seeking to reorientate a human rights discussion by establishing
international responsibilities for individuals and human rights organizations.
(The full title of the ‘human rights defenders’ text is ‘Declaration on
the Right and Responsibility of Individuals, Groups and Organs of Society to
promote Universally Recognized Human Rights and Fundamental Freedoms.’)
One of the most recent initiatives in the quest to reassert the
importance individual responsibility is the ongoing attempt to go beyond the
Universal Declaration of 1948 and the Vienna Declaration of 1993, and find ideas
and texts that both respond to the values that link us together, and tackle
perceived new challenges to human dignity.
Justice Richard Goldstone has categorized those involved in this debate
as coming from four different quarters. First,
he identifies those proponents who see this ‘as a complement to the
well-established precepts of the individual human rights as embodied in the
Universal Declaration of Human Rights’. In the second camp we find those who
argue that ‘the notion of human duties and responsibilities should take
precedence if collective interests and societal life are to be sustained’.
Third, there are those who ‘suggest that the breathtaking events in
globalisation and technological advancement - be it in biology, medicine or
information or communications - necessitate a fresh approach with a view to
defining new norms and, where appropriate, international instruments.
Lastly, another school of thought holds that any discussion of human
duties and responsibilities is tantamount to an infringement of the existing
body of international human rights norms and declarations.’ (1997:1).
These comments were made in the run up to the Valencia Human Duties and
Responsibilities Project and came on the eve of the adoption by the General
Conference of UNESCO of the Declaration on the Responsibilities of the Present
Generations Towards Future Generations (12 November 1997).
This Declaration is just one of a number of initiatives.
Whether or not one embraces such initiatives really depends primarily in
one’s confidence in the existing normative system and whether one considers
that more human rights texts inevitably erode the concreteness of the existing
obligations. We might now look in
detail at one recent attempt to go beyond the Universal Declaration of Human
Rights adopted in 1948.
(c) The Universal Declaration of Human
Responsibilities
On the 1st of September 1997, the InterAction Council
launched a ‘Universal Declaration of Human Responsibilities.’
The InterAction Council, under the Chairmanship of Helmut Schmidt, has
achieved endorsement from a number of former heads of State or Government for
the text, and hopes to have the document adopted at the 1998 regular
session of the UN General Assembly at the time of the commemoration of the 50th
anniversary of the adoption and proclamation of the Universal Declaration of
Human Rights. Instead of setting out rights, duties, rules and principles which
would be binding in international law, the drafters have sought to enumerate
‘global ethical standards.’ They
assert that the Universal Declaration of Human Rights reflects the philosophical
and cultural background of the victorious Western powers at the end of the
Second World War. The new
Declaration of Human Responsibilities is supposed to rescue notions of
responsibility and community which are said to have prevailed in the East.[6]
But the emphasis on responsibility and community does not mirror the
approach taken to international human rights law - whereby the State owes the
individual certain rights which are to be respected within the jurisdiction of
the State. The new notions stress
transnational solidarity and the injection of an ethical dimension into
international relations.
The
InterAction Council believes that globalization of the world economy is matched
by globalization of the world’s problems.
Because global interdependence demands that we must live with each other
in harmony, human beings need rules and constraints.
Ethics are the minimum standards that make a collective life possible.
Without ethics and self-restraint that are their result, humankind would
revert to survival of the fittest. The
world is in need of an ethical base on which to stand.[7]
In drafting the Declaration the InterAction Council
sought to represent the major religions of the world. An earlier draft Article 3 states: ‘No human being, no
social class, group, or corporation, no state, no army or police stands above
good and evil; all are subject to moral judgement.
Everyone should strive to do good and avoid evil at all times.’
The final draft has replaced the idea of moral judgement with a more
secular appeal to ethical standards. So
that the phrase in the middle of the article now reads ‘all are subject to
ethical standards’. There
is a further reminder in Article 13 that: ‘No politicians, public servants,
business leaders, scientists, writers or artists are exempt from general ethical
standards, nor are physicians, lawyers and other professionals who have special
duties to clients. Professional and
other codes of ethics should reflect the priority of general standards such as
those of truthfulness and fairness.’
What is the international human rights lawyer to make of this initiative
and reorientation? Are we leaving law
and escaping to ethics? And what does
it tell us about the state of human rights in international relations?
On the one hand, the shift away from clearly stating governmental
responsibilities in law could lead to a dilution of the human rights message.
Human rights would become part of ‘creative writing’, something to be
accommodated into one’s personal morality.
Breaches could be labeled ‘unethical’, but would escape the
opprobrium of being termed ‘violations of international law’.
Efforts to enforce international human rights at the international level
through the use of international criminal tribunals, complaints procedures,
creating crimes of universal jurisdiction, and incorporating rules in treaties
into national law, could unravel, and the human rights project could start to
lose the sort of concrete normativity which enables it to be seen as the sort of
law which can be enforced by judges.
On the other hand, the draft Universal Declaration of Human
Responsibilities responds to an ideological vacuum.
The driving competing ideologies, which sought to prioritize freedom and
equality, are no longer locked in combat at the United Nations and elsewhere.
The human rights movement has lost some of its momentum as the Western
and Socialist blocs have run out of steam.
But the movement has not run aground - it is still grinding on.
I should like to suggest here that the life source of its continuation is
solidarity. Because the
draft Universal Declaration on Human Responsibilities appeals to that sense of
cross-border solidarity it responds to a phenomena which is more real than
imagined. One only has to attend
one of the global conferences organized in the last decade to sense the
potential of ‘global networking’. The
fact that this normative code appeals more to transnational
solidarity than inter-national
relations poses challenges for international lawyers.
But any common lawyer familiar with the concepts of reasonableness,
fairness and equity should not have too much difficulty accepting the normative
content of something described as ‘general ethical standards.’
The fact that these standards do not fit comfortably in the traditional
triptych of international law sources should not dissuade us from according them
some legal value.
But the last word on the issue of the utility of the approach taken by
the drafters of the Universal Declaration of Human Responsibilities should go to
Theo van Boven:
In
all good conscience one may wonder whether the challenges of globalization, and
in particular the current weakening of the global human rights system, are
effectively responded to by a Universal Declaration of Human Responsibilities as
proposed. The text undoubtedly
comprises a number of commendable notions.
It is organized in sections which respectively cover fundamental
principles of humanity, non-violence and respect for life, justice and
solidarity, truthfulness and tolerance, and mutual respect and partnership.
It entrusts people, individually and collectively, with the
responsibility and the task to enhance these excellent and essential ideals.
How can one disagree with the principles and concerns outlined in the
proposed document. However, the
text is regrettably deficient where it fails to point to the economic and
financial actors which in the process of globalization of the economy have
become increasingly powerful and which should carry
their due and proportional share when responsibilities and duties in the
area of human rights are at stake. The
recognition of human rights and the attribution of human responsibilities and
duties can only be realized if political and economic powers and their
leadership are made to understand and accept their responsibilities for the
general welfare, and moreover, if their policies and practices are reviewed and
adjusted accordingly. This essential dimension of corporate responsibility is
largely overlooked in the proposed document, except insofar as it states that
economic and political power must not be handled as an instrument of domination
but in the service of economic justice and of the social order (Article 11).
If the initiative of the InterAction Council is actually meant as a
response to the globalization of the world economy, its orientation and thrust
should have put a much sharper focus on the effects of the market on rights, in
particular the right of the vulnerable, and on the accountability of non-state
entities.’ (1998:6)
This author concurs with van Boven that those who are
interested in tackling the effects of globalization on the vulnerable should
concentrate on enforcing the rule of law against non-State actors.
We now turn to look at new challenges and possibilities for monitoring
various non-State actors and for holding them accountable.
(2) The
Emerging International Judiciary.
The Cape Town meeting comes in the wake of the UN
Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court. Having
contributed at all stages to the drafting of the Statute and the global NGO
movement to ensure the most effective court, the ICJ is now faced with a
plethora of questions. What sort of
cases to bring to the attention of States, the Security Council, and the
prosecutor? What sort of standards
to hold the Court to in terms of ensuring that defendants are guaranteed a fair
trial? And how to ensure that the Court and the its organs develop in such a way
that they represent a beacon of human rights practices. Misgivings about the
existing international Criminal Tribunals for the former Yugoslavia and Rwanda
risk going unanswered and eventually undermining the drive for international
criminal trials. Some of the unease
seems to stem from misunderstandings about the different approaches of the civil
law and common law procedures.
At the regional level we are witnessing the increasing importance of
regional courts both in the human rights field and in the commercial field.
On occasion these sectors will overlap.
As part of the ICJ’s commitment to ensuring that international justice
respects principles of the rule of law, it is suggested that the ICJ could
explore ideas for bringing together its Members, Sections and Affiliates (as
well as members of the national judiciary) in the different regions to
scrutinize the work of regional international tribunals.[8]
The imminent creation of a new African Court of Human and Peoples’
Rights presents obvious opportunities, but we might also highlight the growth of
resort to international arbitration in Africa, as well as the prospect of
regional Courts dealing with disputes arising out of sub-regional customs
unions. All these developments have
considerable implications for the protection of human rights and respect for the
rule of law.
The moves
towards the regionalization of legal
dispute resolution do not contradict the globalization
dynamic, but rather are a necessary reaction, and are, in fact, complementary.
The fact that regional courts in Africa and the Americas allow for the
interpretation of international texts, rather than merely regional ones,
presents interesting possibilities for human rights advocates to explore.
Some issues of international concern might be explored in regional
contexts with greater success than at the international level.
For example the African Charter and new Court on Human and Peoples’
Rights offer interesting possibilities to develop the meaning and scope of the
right to development or the right to self-determination as well as other human
rights concepts contained in international instruments.[9]
But, the creation of regional legal regimes could also undermine the
universality project. Inter-governmental
regional integration has given rise not only to a resurgence in regional
identities but also to new forms of decision-making and
inter-governmental action. For
example, following the entry into force of the 1997 Amsterdam Treaty on the
European Union, we have to consider the effect of the new ‘Protocol on Asylum
for Nationals of Member States of the European Union.’
The ‘sole article’ starts: ‘Given the level of protection of
fundamental rights and freedoms by the Member States of the European Union,
Member States shall be regarded as constituting safe countries of origin in
respect of each other for all legal and practical purposes in relation to asylum
matters.’ The article then goes
on to outline a number of exceptional cases where the application for asylum
made by a national of a Member State may be considered by another Member State.[10]
This Protocol, even though not fully endorsed by all 15 Member States, not
only undermines the refugee regime by carving out a geographical/political area
that is presumed safe, but it also creates a precedent that is obviously
extremely dangerous. It could lead
to the situation that other regions might, one day, decide that their adherence
to human rights treaties similarly allowed them to suspend existing
international law on asylum. In
order to dispel the impression that the European Union is undermining the
application of the Refugee Convention the preamble states: ‘WHEREAS this
protocol respects the finality and the objectives of the Geneva Convention of 28
July 1951 relating to the status of refugees’.
Nevertheless, the Protocol has been criticized by UNHCR: ‘We are very
concerned at the EU decision. If
the EU applies limitations to the Convention, others can follow and could weaken
the universality of the instrument for the international protection of refugees.
We do not, therefore, share the position taken in the preamble stating
that the protocol respects the Convention.’[11]
The question now arises: what are the implications for the rule of law,
and, in particular, the principle of enforcement of respect for human rights
through an independent judiciary. It
is suggested that there are two dimensions to the absence of the rule of law in
the context of such regional economic integration.
First, we have the issue of whether such an apparent derogation from
existing human rights can be challenged at the level of the regional Courts
charged with the oversight of respect for international and regional law.
The answer is probably no. Neither the European Court of Justice nor the
European Court of Human Rights would be
likely to entertain a claim against the Member States that their action in
concluding the Protocol violated international human rights law.
We are faced with a paradox. The
European Union invokes a commitment to the rule of law, and the effectiveness of
the European Court of Human Rights, in order to derogate from international
practice; whilst that same derogation can not be challenged in any Court.
Second, we have the issue of diminishing respect for the rule of law in
the context of the national decisions taken in order to comply with demands made
under regional integration law. For
example, a decision taken by a governmental authority in an EU Member State in
order to comply with their obligations under EU law can probably not be judged
for conformity with human rights standards either by the national judges or the
judges in the European Court of Human Rights.
The logic is that the national authorities had no discretion in the
matter, and the European Community/Union is not a party to the European
Convention on Human Rights (ECHR). [12]
This European example has been used to illustrate the point that, as
different customs or security unions/pacts are established in the Americas and
Africa, little action is being taken to ensure that the new types of
decision-making are subjected to judicial scrutiny, not only for conformity with
the international treaties establishing the various Unions, but also for
conformity with international human rights law which has been established with
considerable difficulty over the years. In
short the development of regional treaties and courts is in danger of violating
the principle of the rule of law, identified by the ICJ, which highlights the
importance of a judicial system which respects fundamental rights and human
dignity. Furthermore, the forces of
regional integration have so far left inadequate space to develop respect for
the two other principles of the rule of law referred to at the start of this
paper. First, the
inter-governmental decision-making process at the regional level leaves little
room for ensuring that the governmental decision makers are responsible to the
people. (The new governmental level
of decision making takes place at a supranational level, and the decision making
organ seems to become an irresponsible entity accountable to no particularly
civil society.) And second, little
effort is made to include people in the design and elaboration of legal
solutions to human rights problems.
However, there is a further aspect to the concept of the emerging
international judiciary. It too is
driven by the globalization dynamic which demands reliable justice systems at
the national level. In his paper to
the Cape Town Conference Diego García-Sayán (1998:2) reminds us that: ‘Rule
based, predictable legal régimes are of the utmost importance to the new market
order.’ He has analyzed the
contribution made by the International Financial Institutions (IFIs),
such as the World Bank and the Inter-American Development Bank, to judicial
reform and cautioned us not to rely exclusively on this international approach
to reform of the national judiciary.
He warns us to take into consideration the special interests and ideology
of the IFIs.
The
IFIs, for example, have a very clear ideological slant, in that they believe
strongly in a private-sector led model of growth, and in small government.
They also have a constituency to appeal to - that is, the donor
governments - and a clear mandate
to make things easier for foreign investors.
Their focus in judicial reform will naturally lie in contractual law, as
opposed to penal law. Clear and
easily ascertained property rights; properly regulated and well-functioning
financial markets which provide access to capital and assist investment.
(1998:7)
This analysis highlights our ambivalent approach to
globalization: diving into the mainstream of the globalization dynamic will put
us in the middle of processes of change - but as people concerned with human
rights, rather than the rights of investors, we may find ourselves swimming
against the current.
(3). Trade and Investment Liberalization
In introducing the human rights discussion on trade
and investment liberalization at the Cape Town Conference Rajeev Dhavan asked us
to consider the preliminary question: ‘is the there there?’.
In other words does trade and investment liberalization really pose a
problem for the enjoyment of human rights.
As we have tried to show throughout this paper, it is not the phenomena
associated with globalization which are inherently incompatible with human
rights principles. Rather it is the new legal machinery being assembled which seems to operate in a way which leaves
no room for the protection or processing of human rights concerns.
The 1981 paper Development and the Rule of Law published by the ICJ argued that
economists and those involved in development needed to be convinced that denials
of human rights would hinder economic growth and human development.
The right to development was designed to emphasize that all human rights
are ‘an essential ingredient in the development process’.
(Alston 1981:123). The time
has now come to revisit the economic and development spheres and perhaps insist
on legal, rather than purely policy, arguments.
The fact is that many of the changes coming in the wake of the
globalization dynamic are, as we have noted, adopted in legal forms: new laws to
protect foreign investment, judicial reform concentrated on ensuring legal
certainty in the commercial sphere, and international agreements committing the
government to privatize, deregulate or downsize the public sector in areas such
as housing, education and health. The
response of the International Commission of Jurists could go beyond handwringing
and posit the international human rights law framework right in the middle of
this mainstream. Human rights law
would operate not so much as a dam but rather as a filter, eliminating those
elements which violate established human rights law principles.
Clarence Dias (1998:8), at the Cape Town Conference, reminded us of
how human rights law could be used to challenge the structural adjustment
programmes being imposed by the international financial institutions:
Law
has become an instrument of oppression and repression.
But law can also be an instrument of liberation.
New economic policies and structural adjustment programs (SAPs) have to
be implemented through laws. Guarantees
(for example, of the right to work, the right to life) under our national
constitutions can be invoked to ensure that the necessary social “safety
nets” are created alongside such economic policies and SAPs.
Even while the national legal orders are being dismantled to accommodate
such economic policies, we can assert international human rights standards and
environmental standards to halt such process of dismantling.
Using law as a weapon is attractive and feasible when we have clearly
situated legal entities to target; but globalization has also raised the spectre
of decisions being taken ‘by remote control’ (Dias 1998:8) or even in a never-never land situated in cyberspace. On the eve of the Third Millennium there is considerable
anxiety and excitement about the effects of an ever-more global economy and the
speed with which technological progress can transform whole sectors.
Employers and investors now sometimes seem to operate on a plane over and
above national frontiers. There is
a fear that they are also operating outside the rule of law.
In devising new regulations to tackle this phenomenon legislators are
confronted with a two-fold opposition. First,
there is a distrust of legal solutions as representing the sort of red tape that
trade liberalization ideology is seeking to triumph over. Second, there are fears in the developing world and elsewhere
that human rights or environmental issues are simply being used as smokescreens
for the pursuit of a protectionist agenda.
There is even a fear that the unilateral use of labour rights provisions
in US trade law has the ‘potential, over the longer term, to undermine
significantly both the standards and the procedures that together make up the
labor rights regime.’ (Alston 1996:87).
However, although the International Labour Organization has been
considering the ‘Social Dimension of the Liberalization of International
Trade’ its weak procedures mean that there is continuing pressure for some of
these questions to be considered and resolved at the World Trade Organization.
According to Virginia Leary (1997:120): ‘The relationship of labour
standards to trade liberalization will continue to be an issue at the WTO due to
(i) continuing pressure by leading industrialized countries; (ii) the rising of
the issue in relation to WTO work, for example, on labeling and investment;
(iii) continuing criticism of the WTO from consumer organizations, trade unions
and other concerned groups for failure to consider the social aspects of trade
liberalization.’ There are indeed
signs that the WTO is becoming a bit more image conscious.
The Director recently stated: ‘Trade liberalization can - and must - be
a critical ally of sustainable development.
But freer markets alone will not solve all of the complex environmental
and social issues we face in today’s interdependent world.’[13] However
the emphasis is still on concluding global agreements and standards outside the
WTO and ensuring that non-trade related elements are not introduced into the
dispute resolution mechanism.
Turning from issues of trade to new proposals for international law on
investment, the proposed new agreement on protecting foreign investors developed
in the context of the OECD highlights the way in which states are readjusting
notions of State sovereignty in an increasingly integrated world. Renato Ruggiero, Director of the WTO has called this OECD
draft Multilateral Agreement on Investment (MAI) ‘the Constitution for a
single global economy’. Human
rights groups, such as the ICJ, must surely have a role in ensuring that such a
‘constitution’ is permeated with principles of the rule of law such as (a)
judicially enforceable respect for human rights (b) accountable governmental
decision-making (c) public participation in the production of legal solutions to
human rights problems.
So far, human rights organizations have treated issues of trade and
investment liberalization as belonging to another world.
Kothari and Krause have sounded the alarm: ‘After news about the MAI
was leaked, environmental, social justice, labour and development groups rallied
all the forces they could muster. It
was clear to this coalition that the new trend of corporate globalization
embodied in the MAI would routinely brush aside the international law
obligations States had assumed over the past years, especially in the areas of
human rights and the environment. This
expanding NGO coalition has not, however, included many human rights groups....
By its failure to act in
concert with other progressive forces, the human rights movement is
marginalizing itself. The ease with
which the MAI has reached such an advanced stage of preparation, and the power
of para-statal agencies that this symbolizes, should act as a wake up call for
human rights NGOs.’ (1998:16). In
a similar vein the UN Committee on Economic Social and Cultural Rights has urged
the UN Secretary-General to: ‘undertake, if possible in collaboration with the
WTO, a careful study of the potential impact upon respect for economic, social
and cultural rights of the draft Multilateral Agreement on Investment (MAI)
being negotiated within the OECD.’[14]
The UN Sub-Commission has even urged member States of the OECD to review the
draft text to ensure ‘that all its provisions are fully consistent with their
human rights obligations.’[15]
But the issue is more subtle. It
is difficult to point to provisions of investment agreements, at either the
bilateral or the multilateral level, and show that the agreements on their face
violate human rights obligations. It
is their impact which needs to be
studied and careful suggestions made as to how to devise legal clauses or
solutions so as to avoid any impact which actually leads to human rights
violations - or any agreement which has this potential.
As an extended family, with relations scattered across the globe, the
International Commission of Jurists is well-placed to start to work with other
organizations on the analysis and monitoring of the human rights impact of
investment agreements. Those
transnational corporations that need to protect their investments abroad will
place considerable pressure on States to adopt legally binding instruments which
guarantee such protection through dispute settlement procedures.
For any human rights clause to work in this context it will have to be
widely adopted and implemented; otherwise it will simply be seen as
uncompetitive. Whether the draft
multilateral agreement on investment is
renegotiated in the context of the OECD, or the WTO, the issue of its impact on
the enjoyment of human rights remains crucial.
The issue for human rights NGOs ought to be twofold: first how to ensure
that the multilateral treaties concluded by States in the context of trade and
investment liberalization do not prevent those same States from fulfilling their
international human rights obligations. For
example, any proposed investment treaty which forces States to allow foreign
investment in an area which might otherwise remain protected for the purposes of
preserving an indigenous people’s culture should be amended to ensure that the
State retains the power to ensure the protection of human rights.
Secondly, human rights organizations might start to develop existing
human rights instruments and codes so that they can be used to ensure that
corporations realize they too have responsibilities under human rights law.
As recently pointed out by Pierre Sané (1998) the introduction to the
Universal Declaration of Human Rights commands every ‘organ of society’ to
promote respect for the human rights contained in the Declaration.[16]
There is certainly a movement to rethink the obligations of corporations
as organs of society and transform some of them ‘into dedicated servants of
the common good.’ (Grossman and Adams (1996:389).
The question arises for the ICJ as to whether to treat corporations
(including the large multinational corporations) as large para-State entities to
be held accountable under the same sort of regime as States themselves, or
whether to start to look at the different sorts of codes that are promulgated by
consumer groups and the corporations themselves and see whether these are in
fact better suited to ensuring respect for human rights.
These issues are likely to be discussed in the new sessional working
group, on the effects on human rights of the activities and working methods of
transnational corporations, to be established by the Sub-Commission on
Prevention of Discrimination and Protection of Minorities.[17] They
will also feature in the working paper to be undertaken by two Sub-Commission
members on ‘the ways and means by
which the primacy of human rights norms and standards could be better reflected
in international and regional trade, investment and financial policies,
agreements and practices’.[18]
The ICJ can surely make a contribution to this discussion and learn from
it.
But in its own approach to developing ways to hold non-State actors
accountable in its own work it is suggested that the ICJ should not limit itself
to stressing the State obligations owed under human rights treaties to everyone
within the jurisdiction of the States parties.
The norms and obligations are fairly well-known. What needs to be
elaborated are the specific human rights that can obviously be directly applied
to the actions of corporations, as well as new methods for their promotion and
enforcement in this sector. As will
be argued below, there is no overwhelming reason why inter-State agreements in
this area could not become binding on the transnational corporations themselves.
In any event, the agreements could at least be addressed to the
transnational corporations. We should note that, in 1998, the Commission took note of
guiding principles on internal displacement which are aimed at not only States
but non-State actors as well.[19]
The duties are designed not only for organizations carrying out State-like
activities but humanitarian organizations and NGOs as well.
Principle 2 paragraph 1
starts: ‘These principles shall be observed by all authorities, groups and
persons irrespective of their legal status and applied without any adverse
distinction.’ The principles take
their legitimacy from the fact that they build on existing international law.
Similarly international humanitarian law attaches duties to armed
opposition groups. It is not necessary for the actual subjects of these duties
to be part of the promulgation process.[20]
The ICJ could be part of a process to elaborate modern guidelines which
could be used as standards with which to hold TNCs accountable for human rights
violations, as well as outlining guidelines as to how TNCs can promote and
protect human rights.
One aspect of corporate responsibility which may yet develop is the
growing acceptance that corporations may be criminally liable for violating the
emerging international criminal law on genocide, other crimes against humanity
and war crimes. When the Rome
Conference on the establishment of an international Criminal Court first met, on
15 June 1998, the draft statute for the International Criminal Court contained
bracketed language asserting the jurisdiction of the Court over legal persons (personnes
morales). In the first two
weeks of negotiations this was further defined to mean ‘a corporation whose
concrete, real or dominant objective is seeking private profit or benefit, and
not a State or other public body in the exercise of State authority, a public
international body or an organization registered, and acting under the national
law of a State as a non-profit organization.’[21]
Throughout the debate no delegation challenged the notion that corporations had
international duties regarding genocide, war crimes, or crimes against
humanity. The disputes in Rome centred on how to ensure that the
accused corporation would be properly represented in procedural terms.
Although the proposal was eventually abandoned, one could conclude that
international law can actually create directly enforceable duties for
corporations. In fact we can say
that corporations have directly binding duties and responsibilities under
international human rights and humanitarian law.
The fact that the new Court will not have jurisdiction over these crimes
does not negate the fact of the commission of the crime or the fact that a crime
defined in international law may have been committed and that international law
places obligations on both the corporation and the relevant States.
If a private individual
commits an act of genocide or another crime against humanity[22] in a situation where the new International Court
has no jurisdiction because the act was committed in a State which has not
ratified the Statute, and the State of nationality of the perpetrator is not a
party to the Statute either, the Court will not have jurisdiction (unless the
Security Council steps in). But the
crime against humanity will have been committed and jurisdiction may therefore
exist to try that person. Where the
national legal recognizes corporate criminal responsibility it would seem to
flow that the corporation could be tried for the international crimes it is
accused of. In fact those treaties
that create international crimes for both legal and natural persons also create
an international legal obligations for those States that ratify them to
establish national jurisdiction over any ‘legal person’ that commits such an
international crime. [23]
Summary of Recommendations
Powerful companies are operating at the global level and taking decisions
regarding investment, production and distribution which directly affect the
enjoyment of human rights. Governments are reacting to this dynamic, but the
decision-making process is taking place away from human rights sites. Human rights groups will have to use the increased
opportunities presented by better global communications to alert each other to
the impacts of these decisions and campaign together to prevent further denials
of human rights.
Regional human rights programmes could be combined with new dialogues
with the relevant international financial institutions. This would involve not
only ensuring that the actual projects designed by such institutions do not
violate human rights, but also ensuring that national governments and others are
aware of the relevant international
human rights obligations as they develop agreements with these institutions.
There is a need for both educational and legal strategies aimed at
ensuring that policy makers in the economic and financial spheres are aware that
their action not only needs to be informed by international human rights law,
but also that, in order to operate within the rule of law, the design,
construction, and implementation of all projects must not violate international
human rights law.
Good governance and the enjoyment of economic, social and cultural rights
are unlikely to flourish where there is corruption.
The elaboration of legal strategies to fight impunity for corruption
should be part of the struggle for economic, social and cultural rights.
Human rights groups could form new alliances in this field and further
find ways to promote human rights in spheres
which have not traditionally looked at human rights issues.
Regional Courts and Tribunals present new challenges for human rights
groups. Monitoring their activity
could help to strengthen confidence in international justice and ensure that the
regionalization of certain issues does not become a way for national governments
to avoid the rule of law.
International human rights groups are well placed to start to analyze and
monitor the human rights impact of investment agreements. Two avenues are
apparent. First one can work to
ensure that investment agreements do not prevent governments from taking
necessary measures to protect human rights and fulfil their existing human
rights obligations. Second, more work needs to be done on developing the actual
human rights standards which are directly applicable to corporations.
Concluding remarks
The forces described in this paper have the potential
not only to erode our human rights but also to unleash new energies in order to
form new global and regional alliances. In some ways it is fair to see the globalization dynamic as
creating new constellations not only ‘up there’ but also ‘down here.’
Referred to by Bengoa as ‘top down’ and ‘bottom up’
globalizations these forces can even be seen in a complex symbiotic
relationship. ‘The “Globalization
of standards” is the most important consequence of “bottom up”
globalization. Local communities as
well as being subject to the impacts of international trade are also feeling the
impacts of new conceptions of justice and equity that are intercommunicated
throughout the world. This means
that old ways of life that were bearable in isolation and in ignorance of
alternatives are beginning to be called into question locally.’ (1997:23).
But in closing we have to remind ourselves that the effects of
globalization can also bring fragmentation and disintegration.
‘The diminishing power of the State and its capacity for control in
economic and not infrequently also political matters is producing a shift of
culture. Economic markets, markets
for goods, systems for interchange of technology and knowledge are very rapidly
becoming global. Cultures, however,
are taking a different and sometimes opposite path.’ (Bengoa 1997:21).
Asthma Jahangir recently reminded us that despite our increasing capacity
to communicate with each other and our obvious interconnectedness we seem to be
witnessing a resurgence of identities constructed along national or ethnic
lines.
Advancements
in Information Technology and sweeping political change have brought the world
closer together, yet it remains polarized along national, ethnic, religious, and
racial lines. The world is plagued
by misunderstandings. Nations have
increasingly come to label others as unorthodox and intolerant.
Every society has values that respect human rights - yet these coexist
with forces of intolerance. To make
the concept of human rights fully indivisible and universal, the human rights
movement must overcome these misunderstandings to build strong bridges amongst
those who value the concepts of tolerance, respect, and peace.
Human rights can not be protected in a divided world.[24]
We have to admit that some of the retreat to ethnic
or other identities seems to come as a counter-reaction to the diminishing role
of the nation State and the search for one’s own culture in an increasingly
homogenized world (Barber 1996). The
challenge for the ICJ would seem to be to find ways to tap into the forces which
are shaping the world and ensure that powerful global, regional and private
actors are not only made aware of their human rights responsibilities, but also
made accountable under the rule of law to ensure that their daily activity
respects the fundamental human rights people have struggled to have recognized
as part of the international rule of law.
Bibliography
Alston,
P. (1981) Development and the Rule of Law:
prevention versus cure as a human rights strategy. (Publication of the ICJ).
Alston,
P. (1996) ‘Labor Rights Provisions in U.S. Trade Law: “Aggressive
Unilateralism”?’ in L.A. Compa and Stephen F. Diamond (eds) Human
Rights, Labour Rights, and International Trade, (Philadelphia, University of
Pennsylvania Press) 70-95.
Alston,
P. (1997) ‘The Myopia of the Handmaidens: International Lawyers and
Globalization’ 3 European Journal of
International Law 435-448.
Barber,
B.R. (1996) Jihad versus McWorld, (New
York: Times Books)
Barber,
B.R.(1998) ‘Culture McWorld contre démocratie: vers une société universelle
de consommateurs’ Le Monde Diplomatique,
August 1998, 14.
Bengoa,
J. (1997) Final report, Special Rapporteur, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, The
relationship between the enjoyment of human rights, in particular economic,
social and cultural rights, and income distribution
E / CN.4 / Sub. 2 / 1997 / 9.
Cumaraswarmy,
D’P. (1997) ‘The Universal Declaration of Human Rights - Is it Universal?’
in The Review of the International
Commission of Jurists Dec. 1997, 118.
Dias,
C. (1998) ‘Globalization, Liberalization of Trade and Investment: Impact on
Respect for Human Rights’ paper prepared for the ICJ Capetown Conference, July
1998.
Deng,
F. (1997) ‘Universal Implementation’ in
Österreichische außenpolitische
Dokumentation, Special Issue ‘The universal protection of human rights:
Translating international commitments into national action’ 40th International
Seminar for Diplomats, Helbrunn Castle, Salzburg, Austria, 28 July - 1 August
1997, 56-81.
García-Sayán,
D. (1998) ‘The role of the international financial institutions in judicial
strengthening and reform’ paper prepared for the ICJ Capetown Conference, July
1998.
Ghai,
Y. (1997) ‘Rights, Duties and Responsibilities’ in Human
Rights Solidarity - AHRC Newsletter, 7 (4) Human Rights in the Asian
Context, 9.
Goldblatt,
D., Held, D., McGrew, A. and Perraton J. (1997) ‘Economic Globalization and
the Nation-State: Shifting Balances of Power’ in 22 (3) Alternatives.
Social Transformation and Humane Governance , 269.
Goldstone,
R. (1997) ‘“Note” to the High-level Group on Human Duties and
Responsibilities in the Third Millennium - Towards a Pax Planetaria’.
(On file with the author).
Grossman,
R.L. and F. Adams (1996) ‘Exercising Power Over Corporations Through State
Charters’ in The Case Against the Global
Economy: and for a turn toward the local J. Mander and E. Goldsmith (eds),
374.
Hirsh,
M. (1996) ‘Graft Busters’ Newsweek
25 December 1996.
International
Commission of Jurists (1966) The Rule of
Law and Human Rights: Principles and Definitions (as elaborated at the
Congresses and Conferences held under the auspices of the International
Commission of Jurists, 1955-1966).
International
Commission of Jurists (1993) The Accession of the European Communities to the European Convention on
Human Rights Position Paper.
International
Commission of Jurists (1998) Report of the
Regional Seminar on Economic, Social and Cultural Rights organized by the
International Commission of Jurists in Collaboration with the African
Development Bank Abidjan, Côte d’Ivoire, 9-12 March 1998.
Kothari,
M and T. Krause (1998) ‘Human Rights or Corporate Rights? The MAI Challenge’
5(1-2) Human Rights Tribune 16.
Leary,
V. (1997) ‘The WTO and the Social Clause: Post Singapore’ 1 European
Journal of International Law 118-122.
Ramcharan
B.G. (1997) ‘The Universality of Human Rights’ in The
Review of the International Commission of Jurists Dec. 1997, 105.
Ramonet,
I. (1997) ‘La mutation du monde’ Le
Monde Diplomatique, Oct. 1997.
Sané, P. (1998) ‘Indivisibles droits humains’ Le Monde Diplomatique,
May 1998 p. 32.
[1] Associate Professor of Public International Law, Graduate Institute of International Studies, Geneva.
[2] Giddens, A. ‘Affluence, poverty and the idea of a post scarcity society’ in 27 Development and Change, April 1996, 365-378, quoted in Final Report prepared by Mr. José Bengoa E/CN.4 /Sub. 2 /1997/9: at p. 13.
[3] Statement by the Committee on Economic, Social and Cultural Rights, May 1998, 18th Session.
[4] ‘Renewing the United Nations: A Programme for Reform’ UN Doc. A/51/950, 14 July 1997, para. 107.
[5] Article 29 reads: 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
[6] For a analysis of this notion see Ghai (1997) discussed above.
[7] Report on the Conclusions and Recommendations by a High level Group on A Universal Declaration of Human Responsibilities, 20-22 April 1997 Vienna Austria at p. 8.
[8] The experience of the Standing Committee of the European Sections in elaborating a ‘Position of the International Commission of Jurists on the Intergovernmental Conference of the European Union’ which tackles issues of accountability and the competence of the European Court of Justice of the European Community could be built on so as to create a network of interested actors studying the effects of this sort of regionalization.
[9] The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of An African Court on Human and Peoples’ Rights states that the Court is to have jurisdiction over ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.’ (Art 3). Furthermore the Protocol provides for advisory opinions not only on matters relating to the Charter but also regarding ‘any other relevant human rights instruments’. (Art 4). In the Article on sources of law the Protocol states that ‘The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned.’ Art. 7.
[10] Where the state of which the applicant is a national has declared a state of emergency in accordance with article 15 of ECHR; where the Council is considering whether there exists a serious and persistent breach of human rights by the member state of which the asylum seeker is a national under the procedure in the new Article 7 of TEU; and where a member State has decided unilaterally in which case the application is to be dealt with on the basis of the presumption that it is manifestly unfounded. The actual implementation of these exceptions raises complex questions, but the important issue in the present context is the message which the general geographical exclusion sends.
[11] ‘UNHCR concerned about restricted access to asylum in Europe’, 20 June 1997 ‘Update on Europe’.
[12] Although the International Commission of Jurists has been active in promoting the accession by the EC to the ECHR (ICJ 1993), such a solution seems unlikely in the near future. In any event the accountability of entities such as the European Union can not be ensured merely by relying on international complaint procedures.
[13] Renato Ruggiero speaking at a NGO symposium, 17-18 March, Geneva, as quoted in Bridges Vol. 2 No. 3 (International Centre for Trade and Sustainable Development).
[14]'Globalization and Economic, Social and Cultural Rights’, 18th Session of the CESCR, May 1998.
[15] UN Doc. E/CN.4/Sub.2/1998/L.22.
[16] The UN General Assembly proclaimed the Declaration ‘as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms....’
[17] Press Release HR/SC/98/32, 28 August 1998: see also the draft resolution and the amendment in UN docs E/CN.4/Sub.2/1998/L.3 and L.20. This last proposed amendment by Françoise Hampson stressed that: ‘There is no doubt, in the light of the case-law of human rights monitoring and enforcement bodies, that States are, in certain circumstances, under an existing obligation to regulate the activities of transnational corporations. The scope of that obligation is not clear. To include this field within the mandate proposed cannot be inconsistent with any other provision of human rights law, since it is already part of human rights law.’ The amendment was accepted and the working group is also mandated to: ‘consider the scope of the obligations of States to regulate the activities of transnational corporation, where their activities have or are likely to have a significant impact on the enjoyment of economic, social and cultural rights and the rights to development, as well as of civil and political rights of all persons within their jurisdiction.’ Resolution 1998/8, adopted without a vote, 20 August 1998. In a way this amendments highlights the inadequacy of relying totally on a State centred approach. The home State, where the corporation is incorporated, is unlikely to consider the activities of the corporation abroad as affecting the rights of persons within its jurisdiction. The host State, the State where the activity takes place, is unlikely to be able to regulate the activities of the corporation as the decisions will be taken outside its jurisdiction in the home State. The Sub-Commission resolution demands that the working group addresses the effects of the activities of TNCs but has reserved the question of legal obligations for States. It is suggested here that future work might also concentrate on the elaboration of legal obligations for the TNCs themselves. This could be achieved without undermining the continuing legal obligations on States to ensure the protection of human rights to everyone within their jurisdiction.
[18] Press Release HR/SC/98/32, 28 August 1998. The two experts Deepika Udagama and Joseph Olaka-Onyango.
[19] Resolution 1998/50.
[20] One of the few multilateral texts elaborated and adopted by States, employers organizations and trade unions is the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977) 17 International Legal Materials (1978) 422. Another multilateral text is the OECD Guidelines for Multinational Enterprises (1976) 15 ILM (1976) 967.
[21] UN Doc. A/CONF.183/C.1/WGGP/L.5/Rev.2. A footnote reminded that the ‘applicable law under this Statute is defined in article 20.’
[22] During the Conference the issue arose as to whether in defining the various crimes against humanity any should be limited to actions undertaken by State agents rather than private individuals. In the end the definitions chosen rejected the condition that the action be undertaken by State agents. Article 7(e) of the Statute defines torture as the ‘intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from , inherent in or incidental to, lawful sanctions.’ ‘Enforced disappearance of persons’ is defines in Article 7(I) and can be carried out by a‘political organization’ and not only the State. The other crimes against humanity are written in a way that would cover both State and private actors.
[23] For a more detailed exploration of possible ways to hold TNC accountable in international law see ‘Whither the State of Human Rights Protection? (New Ways to Hold Non-State Actors Accountable)’ a mapping paper prepared for the Geneva-based International Council on Human Rights Policy by Andrew Clapham and Silvia Danailov.
[24] Speech on the panel ‘Human Rights as an Instrument of Peace’ Palais Wilson, Geneva, 5 June 1998.