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Globalization and the Rule of Law

  Andrew Clapham^[1]

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.

            The term ‘globalization’ has become a buzzword to encapsulate some of our amazement and apprehension as we enter a new millennium and perceive the world around us changing at an alarming rate.   The fascination with the term ‘globalization’ seems to stem from the fact that it means all things to all people.  For some, globalization symbolizes the increasing influence of global corporations, new means of communication, and consumerism; all facilitated through the increasing liberalization of both markets and the regulations governing capital flows and foreign direct investment.  For others, it encapsulates the sense that decisions are no longer taken at the local, or national level, but in some supranational global gathering.  But, perhaps most importantly for our purposes, it reminds us that citizens are forming new networks and that the human rights movement is now increasingly connected and capable of exerting global influence.  However, these three dimensions are not the end of the story.  Our individual awareness of these changes is often vague but sometimes concrete.  As Anthony Giddens points out: ‘Globalisation is not just an “out there” phenomena. It refers not only to the emergence of large-scale world systems, but to transformations in the very texture of everyday life. It is an “in here” phenomenon, affecting even intimacies of personal identity. To live in a world where the image of Nelson Mandela is more familiar that the face of one’s next door neighbour is to move in quite different contexts of social action from those that prevailed previously.’^[2]  

            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.  

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