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Human Rights

Social Justice in the Age of the Market

Fernwood Publishing and Zed Books Ltd

Introduction

Human rights mean different things to different people. While I was writing this book in Belgium, two advertising campaigns promoted Freedom of Speech! A mobile phone provider put up billboards along the motorways using the slogan in an attempt to break into a market long dominated by a public operator. A political party of the extreme right launched the second campaign, in an attack on a Court judgment which had condemned organizations associated with it for violations of the law on racism. The party won in the subsequent elections.

This book is not about how human rights can serve the interests of a company or of a racist party. It investigates whether human rights can assist people abandoned by globalization in achieving human dignity.

It is not self-evident that human rights can offer protection in a globalized world. International human rights law developed at a time when states monopolized international relations. The international human rights system was similarly state-orientated. Domestic states carried human rights obligations vis-à-vis their inhabitants, but not vis-à-vis anyone else. The entire system relied on connecting every individual to a responsible state that had the capacity to deliver protection. Other actors, such as companies or international economic organizations, remained out of sight.

In today's globalized world, however, human rights violations often occur as a consequence of the behaviour of a variety of actors. Consider: a fifteen-year old girl, who leaves her own country because she cannot provide for herself or her family, is enlisted in prostitution by a trafficking ring in the country she travels to, is maltreated during a police raid as a prelude to a forcible return to her home country, where the cycle starts all over again. The girl cannot achieve a dignified life because of the cumulative effect of the actions of her home state, the traffickers, and of the country of destination. In order for human rights protection to work, an integrated global response that challenges the behaviour of all perpetrators, and interacts with each of them, is necessary. Focusing on only one actor often brings no improvement at all. Human rights need to adjust to the context of globalization, in much the same way they adjusted earlier to the Holocaust, or to the Iron Curtain. This book approaches human rights as a living instrument, not as texts set in stone.

If time is of the essence, read Chapter 2. Its objective is to contribute to the development of a theory of human rights that responds to the challenges of globalization. Proposed directions for human rights follow a brief review of the different dimensions of globalization.

It is argued that existing state obligations in the field of human rights need to be rethought. Consider: a state decides to privatize the water supply system of its major cities. The privatization does not diminish the state's obligation to provide poor people with access to drinking water. What does change, however, is what the state needs to do in order to guarantee access. The roles of provider and supervisor are different, and this affects the legal techniques through which protection must be ensured. It is essential that the human rights project clarifies what human rights require from the state in these changed circumstances.

Second, in a globalized world, the human rights obligations of states are simply not enough. Mechanisms need to be created that ensure the accountability of other actors for human rights. These actors include influential economic powers whose actions drive people into poverty. The World Trade Organization and the International Monetary Fund should not be able to declare human rights irrelevant to their work. Companies should not take cover behind the profit motive in order to absolve themselves of responsibility for human rights violations in which they are complicit.

Finally, if human rights are to make a difference, they should focus on empowering those who suffer the worst abuse. The experience of people alienated by the globalization process should inform the direction of the human rights project, rather than the extent to which dominant actors are willing to accommodate aspects of human rights that serve their interests.

Chapters 3 to 5 provide a reality check. Is there any hope that the human rights project will move in the proposed direction? The obstacles are formidable.

Current human rights law shares some of the general weaknesses of international law. The enforcement of compliance is not its greatest strength. Although considerable progress has been achieved over the last fifty years, success remains dependent on the political will of (powerful) governmental and private actors. Governments use the human rights discourse selectively to achieve foreign policy goals, and the legitimacy of human rights as cosmopolitan values shared by all humanity suffers accordingly. Relationships of interdependence apply to the global human rights system in much the same way as they do to other fields of international relations. The relative capacities of actors perpetrating violations and of those requiring justice determine outcomes. In addition, some human rights proponents oppose reform, primarily out of fear for the loss of what has been gained. Torture remains torture, whether the world is globalizing or not, and there is a risk that the acknowledgement of the responsibility of non-state actors makes it easier for states to escape. Why not close one's eyes to the causes of violations, and stick to documenting abuse and demanding justice in each individual case? Human rights advocates may find comfort in the familiarity of the case file approach.

The 11 September 2001 attacks left their mark on human rights, as they did on everything else. The attacks were carefully planned to achieve the highest possible loss of life, and were committed for political gain. They share these characteristics with a number of gross and systematic violations perpetrated by states in the past. In response, anti-terrorism measures went beyond permissible limitations of civil and political rights. War was deemed just even if international law held that it was illegal. International donors discovered a new priority: the strengthening of the capacity of security systems in the perceived countries of origin of terrorists, notwithstanding the dubious human rights reputation of recipient regimes. This book is primarily concerned with economic globalization and its impact on human rights. Nevertheless, many of the proposals on human rights reform in Chapter 2 are also relevant to a human rights response to 11 September and its aftermath.

Consider the global nature of the events: a transnational non-state network perpetrated the attacks. The attacks were arguably planned in one country and executed in another. Private security firms were involved in interrogation practices in the Abu Ghraib prison. The United States held suspected terrorists in secret detention centres in various countries.

None of these practices fits well in an approach that thinks only in terms of the responsibility of a state for what happens on its own territory. But the need to ensure the human rights of the people affected by the different events is no less urgent. Again, new tools are needed to protect the same values in a changed context.

It would be unfair to list the UN Geneva human rights system as an obstacle to human rights protection. The UN chapter takes its rightful place between the chapters on obstacles and on opportunities. The Geneva system inspires feelings of both hope and despair. Much depends on how one evaluates success. One may take the view that a single life saved because of an urgent action by a Geneva Special Rapporteur makes it worthwhile to maintain the institution. Or five lives. Or ten. This is a respectable position. If the test is, however, whether the Geneva system fulfils the role of a global forum capable of translating the experience of those who suffer grave abuse at the local level into effective but sufficiently flexible global norms and action, the system fails. Globalization has not strengthened the UN Geneva human rights institutions. They are arguably less effective now than they were during the Cold War. Certainly, the Geneva human rights regime has been unable so far to deal in a meaningful way with post-Cold War challenges, such as the impact of the business world and the international economic organizations that drive globalization, on the rights the institutions are deemed to protect.

Chapters 6 and 7 take a more optimistic view of the proposals in the second chapter. Chapter 6 looks at developments in human rights that go in the right direction. Progress in holding companies accountable is mapped. The willingness of the World Bank to allow a degree of direct accountability to people adversely affected by Bank-supported projects is discussed. Latin American and African regional protection systems have responded in an encouraging way to violations affecting entire communities. The decisions build on the different legal traditions of these continents, and thus introduce a welcome element of plurality in the human rights discourse. The chapter opens with a discussion of peoples' tribunals, i.e. public opinion tribunals set up by NGOs to demonstrate that a legal approach building directly on the experiences of those suffering abuse is possible. There is a conscious effort in the chapter to start from the bottom up, by looking at the usefulness of the different procedural devices from the perspective of organizations working for the defence of human rights.

Chapter 7 applies the preferred human rights approach to several aspects of economic globalization. The aim is to demonstrate how the efficacy of human rights in offering protection in these situations can be improved. But also, and perhaps more importantly, to show the added value of a human rights approach as compared to the current, standard approaches that are predominantly determined by an economic analysis. The chapter reviews agrarian reform, the impact of intellectual property rights on health, the privatization of services, and the provision of micro-credit to people living in extreme poverty. Many a human rights advocate may at first sight not recognize these issues as human rights related. References to human rights may well be absent from international regulation on these issues, thus obscuring the link to human rights. As the chapter seeks to demonstrate, this in no way prevents the relevant rules and practices from having an impact on human rights, nor does it mean that human rights have nothing to contribute to the issues. On the contrary, it is precisely the conscious separation of human rights from these agreements, rules and practices that causes human rights harm.

All of the above leads to a final finding. An urgent need exists for the human rights movement and the movement favouring alternative forms of globalization to pool resources. An open mind on both sides is required, and a willingness to abandon the cocoon of acquired wisdom. Only if there is cross-fertilization between the ideas of both movements, and between the different disciplines that support their vision (development economics, law, social sciences, international relations), can a strong alternative to the current blend of economic globalization be developed.

Essentials

Imagine there's no political or social constraint on markets. National economic barriers have collapsed, and a global economy has emerged where private actors compete for the accumulation of wealth, unhindered by spatial or social boundaries. International organizations have laid down rules that constrain states from using sovereign power to interfere with market objectives. Individuals are consumers, and they consume, optimally. Lifestyles converge, and a global culture gradually erases divisive cultural differences. It's easy if you try.

But it hasn't happened yet. Globalization essentially is 'a particular way of organizing social life across existing State borders' (Sklair 2002: 8). Economic globalization consists of the breaking down of state borders in order to allow the free flow of finance, trade, production and labour. Writers of various ideological persuasions agree that this process of liberalization is incomplete: far advanced in the field of finance, but very modest in the area of labour. The global world evoked above does not yet exist.

Dimensions of globalization

Since the 1970s, removal of capital controls by major developed countries has resulted in a significant increase in trade in foreign exchange. Freedom of capital movement resulted in the integration of domestic capital markets; it also enabled developing countries to access capital that was not available internally. Foreign exchange transactions are, however, notoriously speculative and often short-term, making countries vulnerable to sudden shifts in financial flows, as demonstrated by the financial crises in Mexico and South-East Asia in the 1990s. There is no international regime regulating international finance. Calls have been made to introduce international controls, particularly on short-term capital (cf. Gilpin 2001: 271–7), or, in the absence of such international controls, to allow countries the flexibility to retain or reintroduce capital controls domestically (Khor 2001: 68–71).

The succession of the GATT system by the World Trade Organization (WTO) clearly increased the range of trade liberalization, if only because the scope of application of the WTO treaties reached beyond the trade in goods, and included areas such as trade in services and the protection of intellectual property rights. Developed countries wish to bringing additional areas within the WTO remit. The WTO dispute settlement system includes incentives for compliance that are unusually strong in international law. Once states undertake commitments in the WTO context, they are difficult to reverse. On the other hand, developed countries still protect trade in vital areas such as agriculture, textiles and a number of manufactured goods (e.g. cars). Developing countries wish to maintain barriers in areas such as services, in an attempt to safeguard autonomy from foreign providers in fields that impact directly on policies with major development implications.

Foreign direct investment (FDI) involves a long-term relationship and a lasting interest and control by a resident enterprise of one country (the foreign direct investor or the parent country) in an enterprise resident in another country. Negotiations during the 1990s over a multilateral investment agreement that would have greatly enhanced the rights of international investors vis-à-vis host countries failed, but significant increases in FDI nevertheless occurred as a consequence of liberalization measures decided at the national and bilateral levels. The UNCTAD World Investment Report 2002 notes that, in 2001, seventy-one countries made 208 changes in FDI laws, more than 90 per cent of which were aimed at making the investment climate more favourable to inward FDI. UNCTAD counted 2,099 bilateral investment treaties by the end of 2001. The report confirms that transnational corporations (TNCs) still expand their role in the world economy. Foreign affiliates accounted for about 54 million employees in 2001, compared to 24 million in 1990. Nevertheless, major regional differences remain in actual FDI flows. The African continent attracted a mere 2 per cent of global FDI inflows in 2001.

Finally, at least in liberal economic theory, economic openness should also apply to the movement of labour. Workers should be able to move to where they are most productive: 'the case for unrestricted labour mobility is as compelling as the case for unrestricted capital mobility or the case for free trade' (Nayyar 2002b: 166). As in the area of foreign direct investment, there is no international regime liberalizing cross-border movement, but, differently, liberalization does not result from domestic immigration laws or consular practices either. States invoke both security concerns and, ironically, territorially confined duties of distributive justice to resist liberalizing the movement of labour. The mix of the rationale of economic globalization that pushes individuals to seek work opportunities across borders with huge domestic barriers to entry creates significant irregular migration (Jordan and Düvell 2002). Like others, Bhagwati perceives international migration to be unstoppable. Rather than bemoaning the brain-drain, his prescription to developing countries is to accept a diaspora model, integrating present and past citizens into a web of rights and obligations in the extended community defined with the home country as the centre. Less imaginatively, his advice to developed countries is to integrate migrants into their new homes in ways that will minimize the social costs and maximize economic benefits (Bhagwati 2003). Interestingly, Stark argues that even if 'migration leakage' occurs, developing countries still benefit from allowing controlled emigration, because the prospect of migration induces people to invest more in education: 'Higher prospective returns to human capital in a foreign country impinge on human capital formation decisions at home' (Stark 2004). At the end of the day, only some will be able to migrate, while others will remain in their society with better skills.

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Excerpted from Human Rights by Koen De Feyter. Copyright © 2005 Koen De Feyter. Excerpted by permission of Fernwood Publishing and Zed Books Ltd.
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