PROTECTING HUMAN RIGHTS IN A

GLOBALIZED WORLD

DINAH SHELTON*

Abstract: The shift in sovereignty accompanying globalization has

meant that non-state actors are more involved than ever in issues
relating to human rights. This development poses challenges to
international human rights law, because for the most part that law has
been designed to restrain abuses by powerful states and state agents.
While globalization has enhanced the ability of civil society to function
across borders and promote human rights, other actors have gained the
power to violate human rights in unforeseen ways. This Article looks at
the legal frameworks for globalization and for human rights, then asks
to what extent globalization is good for human rights and to what
extent human rights are good for globalization. It then considers several
legal responses to globalization as they relate to the promotion and
protection of human rights. This Article concludes that responses to
globalization are significantly changing international law and institu-
tions in order to protect persons from violations of human rights
committed by non-state actors.

INTRODUCTION

International human rights law aims primarily to protect indi-

viduals and groups from abusive action by states and state agents. 1 Re-
cent developments throughout the world, including failed states, eco-
nomic deregulation, privatization, and trade liberalization across
borders-components of what has come to be known as globaliza-
tion-have led to the emergence of powerful non-state actors who
have resources sometimes greater than those of many states.2 Two op-
posing views of globalization and its relationship to human rights have
emerged: some see the two topics as mutually reinforcing and positive
in improving human well-being, while others view globalization as
posing new threats not adequately governed by existing international
human rights law.

* Professor of Law, Notre Dame Law School. The author would like to thank Aaron
Shelton for his assistance in the preparation of this Article.
1 See infra note 42, et seq.

2 See infra notes 31-25.

273
274 Boston College International & Comparative Law Review [Vol. 25:273

The legal relationship between globalization and human rights

can be analyzed from the perspective of economic regulation as well
as that of human rights law, examining first whether international
economic law sufficiently supports or takes into account human rights
concerns, then considering the extent to which human rights law
takes into account globalization and economic interests. In respect to
both inquiries, the fundamental question is whether a human rights
system premised on state responsibility to respect and ensure human
rights can be effective in a globalized world.
This Article will discuss the framework of international human
rights law and that related to globalization, i.e., international trade,
technology, and investment law. It studies the relationship between
globalization and human rights, assuming that international society
accepts human rights as a fundamental goal and globalization as a
generally positive phenomenon. After considering whether or not
globalization is favorable to the promotion and protection of human
rights, and whether or not the promotion and protection of human
rights is favorable to globalization, the Article examines several ap-
proaches for the promotion and protection of human rights in the
era of globalization: (1) emphasizing state responsibility for the ac-
tions of non-state actors; (2) imposing international legal obligations
directly on non-state actors, including international institutions, mul-
tilateral enterprises, and individuals; (3) encouraging private regula-
tion through corporate codes of conduct, product labeling, and other
consumer or corporate actions; and (4) involving non-state actors di-
rectly in the activities of international organizations to promote and
protect human rights.
The Article concludes that responses to globalization are
significantly changing international law and institutions in order to
protect persons from violations of human rights committed by non-
state actors. To the extent that these changes have brought greater
transparency to and participation in international organizations,
globalization has produced unintended benefits and further chal-
lenges to the democratic deficit in global governance. 3 At the same
time, an emphasis on subsidiarity and a strengthening of weak states
and their institutions may be necessary to ensure that globalization
does not mean a decline in state promotion and protection of human
rights. To ensure that such strengthening does not lead to further

5 See Eric Stein, International Integration and Democracy: No Love at First Sight, 95 AM. J.
INT'L L. 489, 489 (2001).
2002] Human Rights in a Globalized World 275

human rights violations, the international community should make

concerted multilateral efforts to enhance its ability to respond to hu-
man rights violations, rather than unleashing each state to control
what it views as the sins of the private sector.

I. THE MEANINGS OF GLOBALIZATION

Globalization is a multidimensional phenomenon, compnsmg

"numerous complex and interrelated processes that have a dynamism
of their own. "4 It involves a deepening and broadening of rapid trans-
boundary exchanges due to developments in technology, communica-
tions, and media.5 Such exchanges and interactions occur at all levels
of governance6 and among non-state actors,' creating a more interde-
pendent world.
Globalization is not new, 8 although its forms and the technology
that spurs it have changed. Globalization today is most often associ-

4 Globalization and its Impact on the Full Enjayment of All Human Rights: Preliminary Report
of the Secretary-General, U.N. GAOR, 55th Sess., '15, U.N. Doc. A/55/342 (2000). On the
various meanings of globalization, see Wolfgang H. Reinicke & Jan Martin Witte, Interde-
pendence, Globalization and Sovereignty: The Rok of Non-binding International Legal Accords, in
COMMITMENT AND COMPLIANCE: THE RoLE OF NON-BINDING NORMS IN THE INTERNA-
TIONAL LEGAL SYSTEM 75 (Dinah Shelton ed., 2000). See generally A. G. McGREW ET AL.,
GLOBAL POLITICS: GLOBALIZATION AND THE NATION STATES (1992); STATES AGAINST
MARKETS: THE LIMITS OF GLOBALIZATION (R. Boyer & D. Drache eds., 1996); j.N. Ro-
senau, The Dynamics of Globalization: Toward an operational Formulation, 27 SEc. DIALOGUE
247 (1996).
s The U.N. General Assembly has called globalization "not merely an economic proc-
ess but [one that] has social, political, environmental, cultural and legal dimensions which
have an impact on the full enjoyment of all human rights." Globalization and its Impact on the
Full Enjayment of All Human Rights, G.A. Res. 55/102, U.N. GAOR 3d Comm., 55th Sess.,
81st plen. mtg., at 2, U.N. Doc. A/RES/55/02 (2001); see also Globalization and its Impact on
theFullEnjayment ofAll Human Rights, G.A. Res. 54/165, U.N. GAOR 3d Comm., 54th Sess.,
83d plen. mtg., at 2, U.N. Doc. A/RES/54/165 (2000). Both resolutions recognize "that
globalization affects all countries differently and makes them more exposed to external
developments, positive as well as negative, including in the field of human rights." Id.
6 See generally [Link], CONSENT AND COMMITMENT IN THE WORLD COMMUNITY

( 1997). Examples include the memoranda of understanding of port state authorities, judi-
cial cooperation, and border city agreements. /d.
7 HENRY STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 940
(2d. ed. 2000). Non-state actors include individuals, scientific and academic associations,
international criminal syndicates, corporations, religious bodies, human rights organiza-
tions, and international organizations. /d. The U.N. estimates that there were some 36,000
non-governmental organizations in 1995. /d.
s Some see globalization as beginning around the end of the fifteenth century, with
Europe's expansion through mercantile capitalism into America and Asia. See Statement of
Rubens Ricupero, Secretary-General, UNCTAD, Financial Globalization and Human Rights:
Written Statement Submitted by the International Organization for the Development of Freedom of
Education to the Commission on Human Rights, U.N. Doc. E/CN.4/1998/NG0/76 (1998).
276 Boston College International & Comparative Law Review [Vol. 25:273

ated with economic interdependence, deregulation, and a dominance

of the marketplace that includes a shifting of responsibilities from
state to non-state actors.9 Economic globalization has been accompa-
nied by a marked increase in the influence of international financial
markets and transnational institutions, including corporations, in de-
termining national policies and priorities. 10 In addition, information
and communications technology has emerged as a dominant force in
the global system of production, while trade in goods, services, and
financial instruments are more prevalent than any time in history.n
Some see this emergence of cross-border networks of production,
finance, and communications as posing profound challenges to tradi-
tional concepts of state sovereignty. Richard Falk has spoken of the
"disabling of the state as guardian of the global public good "12 in the
face of a shift of power and autonomy from the state to markets. Ken-
ichi Ohmae refers to a "borderless world" in which "[m]ore than any-
thing else, the burgeoning flow of information directly to consumers
is eroding the ability of governments to pretend that their national
economic interests are synonymous with those of their people. "13 He
adds that, "[i]n today's world there is no such thing as a purely na-
tional economic interest. "14 Perhaps the same may be said for national
political interests. Other authors refer to the decline of the western
nation state.15 The presence of weakened and failed states is an unde-

Others consider it to be a phenomenon with even longer roots, beginning with the inven-
tion of money and the emergence of trade links around the Mediterranean. See Grzegorz
W. Kolodko, Technical Paper No. 176: Globalisation and Transformation: !Uusions and Reality, at
7, available at http:/ /[Link]/dev/publication/[Link] (last visited Dec. 12, 2001).
9 SeeW.H. REINICKE, GLOBAL PUBLIC POLICY: GOVERNING WITHOUT GoVERNMENT ll-
18 (1998).
10 See Philip Alston, The Universal Declaration in an Era of Globalization, in REFLECTIONS
ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A FIFTIETH ANNIVERSARY ANTHOL-
OGY 29 (Barend van der Heijden & Bahia Tahzi-Lie eds., 1998).
11 See, e.g., John 0. McGinnis, The Decline of the Western Nation State and the Rise of theRe-
gime of International Federalism, 18 CARDOZO L. REv. 903, 918 (1996). The rate of informa-
tion exchange has drastically reduced transaction costs, enabling expansion of trans-
boundary communications. In 1860, sending two words across the Atlantic cost the
equivalent of $40 in current money. Today this amount would be enough to transmit the
contents of the entire Library of Congress. Kolodko, supra note 8, at 11-12.
12 RICHARD FALK, LAw IN AN EMERGING GLOBAL VILLAGE: A PosT-\VESTPHALIAN PER-
SPECTIVE, at xxiv (1998); see also Enrico Colombatto &Jonathan R. Macey, A Public Choice
Model of International Economic Cooperation and the Decline of the Nation State, 18 CARDOZO L.
REv. 925, 925 (1996).
13 KENICHI 0HMAE, THE BORDERLESS WORLD 185 ( 1991).
14 Id. at 197.
15 McGinnis, supra note 11, at 918; KENICHI 0HMAE, THE END OF THE NATION STATE:
THE RisE OF REGIONAL EcoNOMIES 1 ( 1995).
2002] Human Rights in a Globalized World 277

niable modern phenomenon, 16 yet there is no clear causal link be-

tween globalization and failed statesP Moreover, state sovereignty
remains the international frame of reference, IS even if the exact con-
tours of sovereignty change over time, as they have throughout his-
tory.19
Paul Streeten has pointed out that globalization can come "from
above," in the form of multinational firms, international capital flows,
and world markets, or it can come "from below," reflecting the con-
cerns of individuals and groups throughout the world.2° It seems evi-
dent that globalization has enhanced the ability of civil society to
function across borders and promote human rights. The past two
decades have seen a shift to multi-party democratic regimes, as more
than 100 countries ended rule by military dictatorships or single par-
ties. Pressed by an international network of non-governmental or-
ganizations and activists, the international protection of human rights
itself can be seen as an aspect of globalization, reflecting universal

16 "An estimated five million people died in intrastate conflicts in the 1990s. In 1998,
there were more than ten million refugees and five million internally displaced persons."
U.N. DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 2000, at 6 (2000), avail-
able at http:/ /[Link]/hrd2000/ english/[Link] [hereinafter UNDP]. On
internal conflicts, race, and ethnicity, see NEW TRIBALISMS: THE RESURGENCE OF RACE AND
ETHNICITY 1 (Michael W. Hughey ed., 1998).
17 Dinah Shelton, Droit et justice pour chaque citayen de la planete?, in MARINA RicciAR-
DELLI ET AL, MONDIALISATION ET SOCIETES MULTICULTURELLES: L'INCERTAIN DU FUTURE
305, 313 (2000). The weakening of the state is at the origin of numerous ethnic conflicts,
sustained by unregulated commerce in conventional arms and by the growth in numbers
of armed mercenaries. /d. Of the sixty-one conflicts that appeared during the years 1989-
1998, all but three were internal armed conflicts. In states where the government has col-
lapsed, armed tribes, and ethnic and political groups control territories without the rule of
law and in the absence of public authorities. /d. In those states, human rights, like other
legal constraints, have given way to anarchy and the exercise of unlimited power. /d.
18 See Jason Burke et a!., Asylum in Crisis: All Australia Can Offer is Guano Island, THE
OBSERVER (LONDON), Sept. 2, 2001, at 3. Some 460 refugees on board the Norwegian
freighter the MV Tampa discovered the on-going importance of borders and state sover-
eignty in September, 2001, when they were denied entry and held off the coast of Australia
for six days before being routed to Nauru and New Zealand. /d.
19 On the various meanings of sovereignty, see TJ. BIERSTECKER & C. WEBER, STATE
SOVEREIGNTY AS A SOCIAL CONSTRUCT 1-4, 11, 123, 283 (1996); R. jACKSON & A. jAMES,
STATES IN A CHANGING WORLD 8, 19 (1993); HENDRIK SPRUYT, THE SovEREIGN STATE AND
ITS COMPETITORS 36, 37 (1994). See generally jENS BARTELSON, A GENEALOGY OF SOVER-
EIGNTY (1995); STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999).
20 Paul Streeten, Globalization and its Impact on Development Co-operation, 42 DEv. 11, 11
(1999).
278 Boston College International & Comparative Law Review [Vol. 25:273

values about human dignity that limit the power of the state and re-
duce the sphere of sovereignty.21
Global technology and the information revolution have limited
the ability of governments to control the right to seek, receive, and
transmit information within and across boundaries. Ideas and infor-
mation can circulate more freely, as can individuals. The number of
televisions per 1000 persons doubled between 1980 and 1995, while
the number of Internet subscribers exceeds 700 million persons. Free
circulation enhances the ability to inform all persons about rights and
avenues of redress. It also makes it more difficult for governments to
conceal violations and allows activists more easily to mobilize shame in
order to induce changes in government behavior.22 Information
technology and the media also can be used, however, to violate hu-
man rights when the government is weak. In Rwanda, the radio and
television channel "Radio-Television Libre des Mille Collines" was an
important avenue for inciting genocide.23 Internet too has been used
for hate speech. 24
The multiple and sometimes contradictory impacts of globaliza-
tion are reflected in the complete disagreement of views over the pat-
tern and direction of globalization. Proponents point to a rise in aver-
age incomes for the world as a whole. Opponents note that there is
persistent inequality and poverty. The World Bank Development Re-
port estimates that, at purchasing power parity, the per capita GDP in
the richest twenty countries in 1960 was eighteen times that of the

2I Prior to the founding of the United Nations (U.N.), human rights were seen largely
as internal matters within the sovereignty of the state. Early debates in the U.N. over hu-
man rights usually centered on the question of whether or not Article 2 (7), prohibiting
the U.N. from intervening in matters essentially within the domestic jurisdiction of a state,
excluded human rights issues from the agenda of the organization. For the debate over
South Africa's apartheid policies as a matter of international concern, see U.N. GAOR
Comm. on the Racial Situation in the Union of South Mrica, 8th Sess., Supp. No. 16, at 16-
22, U.N. Doc. A/2505 (1953). Today, the claim of domestic jurisdiction is largely rejected.
See, e.g., Document of the Moscow Meeting of the Conference on the Human Dimension
of the Conference on Security and Cooperation in Europe, Oct. 3, 1991, reprinted in 30
I.L.M. 1670, 1672 (1991) ("[C]ommitments undertaken in the field of the human dimen-
sion of the CSCE are matters of direct and legitimate concern to all participating States
and do not belong exclusively to the internal affairs of the State concerned.").
22 See, e.g., Upendra Baxi, Voices of Suffering and the Future of Human Rights, 8 'fRANs-
NAT'L L. & CoNTEMP. PRoBs. 125, 159--61 (1998).
2! See Jamie Frederic Metzl, Rwandan Genocide and the International Law of Radio Jam-
ming, 91 AM.J. INT'L L. 628, 629 (1997).
24 See Christiane Chombeau, Des Juifs D'extreme Droite Deversent Leur Haine Antiarabe Sur
Internet, LE MONDE, Oct. 12,2001, at 11.
2002] Human Rights in a Globalized World 279

poorest twenty countries. 25 By 1995, the gap had widened to thirty-

seven times.26 According to the International Labor Organization
(ILO), only 24%of the world's foreign direct investment (FDI) went
to developing countries in 1999, down from 38% over the period
1993-97, and 80% of recent investment went to only ten developing
countries. 27 Wealth concentration is not only seen among countries,
but among individuals as well. According to the UNDP Human Devel-
opment Report 1999, the assets of the three wealthiest individuals in the
world is more than the combined gross national product of all least
developed countries, while the annual sales of one transnational cor-
poration exceeds the combined gross domestic product of Chile,
Costa Rica, and Ecuador. 28
Globalization, thus, has created powerful non-state actors that
may violate human rights in ways that were not contemplated during
the development of the modern human rights movement.29 This de-
velopment poses challenges to international human rights law, be-
cause, for the most part, that law has been designed to restrain abuses
by powerful states and state agents, not to regulate the conduct of
non-state actors themselves or to allow intervention in weak states
when human rights violations occur. 30 An increasingly globalized civil
society is likely to respond to economic globalization by opposing lib-
eralized trade and investment regimes that are not accompanied by
accountability, transparency, public participation, and respect for
fundamental rights.

25 INTERNATIONAL LABOR OFFICE, REDUCING THE DECENT WoRK DEFICIT: A GLOBAL

CHALLENGE-REPORT OF THE DIRECTOR GENERAL 49 (2001), available at http:/ /[Link]
(citing WoRLD BANK, WORLD BANK DEVELOPMENT REPORT 2000/2001: ATTACKING Pov-
ERTY (2001)) (last visited jan. 29, 2002) [hereinafter ILO Report of the Director General].
26 !d. The 1998 U.N. Development Program report has even more extreme figures, fo-
cusing on individual wealth: the 20% of the world's people who live in the richest coun-
tries had thirty times the income of the poorest 20% in 1960, and by 1995, had eighty-two
times as much income. U.N. DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT
1998, at 29 (1998).
27 See ILO Report of the Director General, supra note 25, § 3.1.
28 U.N. RESEARCH INSTITUTE FOR SOCIAL DEVELOPMENT, STATES OF DISARRAY: THE
SoCIAL EFFECTS OF GLOBALIZATION, REPORT ON THE WORLD SUMMIT FOR SOCIAL DEVEL-
OPMENT 13 (1995), available at http:/ /[Link] (last visited Mar. 11, 2002).
29 Although there were issues such as the slave trade and war crimes that were raised
during the nineteenth century and concern for some economic and social rights emerged
in the early twentieth century, most human rights law developed in the period following
World War II.
30 See generally LOUIS HENKIN, THE AGE OF RIGHTS (1990).
280 Boston College International & Comparative Law Review [Vol. 25:273

The result may be viewed as a "clash of globalizations. "31 The

clash plays out in the international institutional and normative system
that has separated human rights matters from economic policy and
regulation, creating distinct institutions, laws, and values for each
field. Integrating them is no easy task; indeed, some commentators
view a conflict as inevitable. 32

A. The Framework of International Human Rights Law

The development of human rights law in response to globaliza-
tion is not new, and there is nothing inherent in the international sys-
tem that would prevent further protective measures. The movement
against the slave trade, which was largely a private enterprise, and to
combat the more indiscriminate or destructive forms of weaponry,
such as gas warfare and dum-dum bullets, are early examples of inter-
national movements to counter the negative side of international
trade and technology. Broader efforts to establish international pro-
tection for human rights can be traced to the surge of globalization
and the emergence of international markets that occurred at the end
of the nineteenth century. 33 During this period, the telephone, the
telegraph, and radio transmissions first opened the world to rapid
transboundary communications; the development of railroads and
steamships allowed trade to move more quickly from one market to
another, while the abuses associated with industrialization provoked
efforts to improve working conditions and the standard of living in
many countries.
Efforts to avoid competitive distortions and enhance the protec-
tion of fundamental rights of workers necessitated international labor
standards. The resulting movement led to the creation of the ILO in
1919.34 Unlike all subsequent international organizations, the ILO

31 Stephen Kobrin, The MAl and the Clash of Globalizations, 112 FoREIGN PoL'Y 97, 97
(1998).
32 See Philip M. Nichols, Trade Without Values, 90 Nw. U. L. REv. 658, 672-73 (1996)

(noting that the basic values of globalization may conflict with other values of society); see
also Frank Garcia, The Global Market and Human Rights: Trading Away the Human Rights Prin-
ciple, 25 BROOK. J. INT'L L. 51, 51 (1999); Alex Seita, Globalization and the Convergence of
Values, 30 CoRNELL lNT'L LJ. 429,470 (1997).
33 jACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 64 (1989)
("Modern markets also created a whole new range of threats to human dignity and thus
were one of the principal sources of the need and demand for human rights.").
34 The ILO's Constitution may be accessed at INTERNATIONAL LABOR ORGANIZATION
CoNST., available at http:/ /[Link]/publicjenglish/about/[Link] (last visited
Mar. ll, 2002). The original constitution of the ILO comprises Part XIII of the Treaty of
2002] Human Rights in a Globalized World 281

engaged all the relevant actors in its operations from the beginning.
Using a tripartite structure of representation, the ILO ensured the
participation of business, labor, and governments in developing
worker rights and minimum labor standards for member states.35
While the standards adopted are addressed to member states for im-
plementation, compliance requires the cooperation of the non-state
actors as well, because the organization primarily aims to respond
through regulation to poor treatment of labor by private industry.
Such regulation is made easier by the participation of labor and busi-
ness in the law-making and supervisory procedures of the ILO.
The international protection of civil and political rights emerged
later, becoming an aim of the international community at the end of
World War II in response to the atrocities committed during that
conflict. While human rights theory supports the claims of rights
holders against all others, 36 international human rights law treats the

Versailles of June 28, 1919, of the Treaty of Saint Germain of Sept. 10, 1919, of the Treaty
of Trianon of june 4, 1920, and Part XII of the Treaty ofNeuilly of Nov. 27, 1919. In 1944,
the Declaration Concluding the Aims and Purposes of the ILO redefined the aims and
purposes of the ILO to emphasize that: (1) labor is not a commodity: (2) freedom of ex-
pression and association is essential to sustained progress; and (3) all human beings have a
right to pursue their material and spiritual well-being in conditions of freedom, dignity,
and equal opportunity. The Declaration now forms an annex to the ILO Constitution. For
further information on the ILO, see International Labor Organization, at http:/ /[Link].
org (last visited Mar. 11, 2002).
35 Between 1919 and 2001, the ILO adopted 182 conventions and 180 recommenda-

tions covering basic human rights such as abolition of forced labor, freedom of association,
and elimination of child labor, as well as conventions on occupational safety and health,
industrial relations, and other conditions of employment.
:16 Among the fundamental theoretical issues respecting human rights is the question
of who rights may be claimed against, i.e., identifying the duty-holder corresponding to
the rights-holder. The French Declaration of the Rights of Man and the Citizen proclaims
that, "the end in view of every political association is the preservation of the natural and
imprescriptable rights of man." Declaration of the Rights of Man and the Citizen, French
National Assembly, Aug. 27, 1789, art. II. This may imply rights held against all private and
public interests. H.L.A. Hart describes "general rights" as those which "have as correlatives
obligations not to interfere to which everyone else is subject and not merely the parties to
some special relationship or transaction, though of course they will often be asserted when
some particular persons threaten to interfere as a moral objection to the interference."
H.L.A. Hart, Are There Any Natural Rights? in jEREMY WALDRON, THEORIES OF RIGHTS 77,
87-88 (1984). In his view the assertion of general rights directly invokes the principle that
all men equally have the right to be free; the assertion of a special right invokes the same
concept indirectly. Gerwith also posits that rights are claim-rights, in tl1e Hohfeldian sense,
that they "are justified claims or entitlements to the carrying out of some correlative du-
ties, positive or negative. A duty is a requirement that some action be performed or not be
performed; in the latter, negative case, the requirement constitutes a prohibition." A. Ge-
wirth, Are There Any Absolute Rights?, in WALDRON, supra, at 93. Government's function is to
ensure that rights and duties are fulfilled. Winston agrees that, "when individuals enter
282 Boston College International & Comparative Law Review [Vol. 25:273

state as the principal threat to individual freedom and well being. 37 In

the post-World War II paradigm, the state and its agents are obliged to
respect and ensure rights. Indeed, some acts are explicitly defined as
human rights violations only if committed by state agents or those act-
ing in complicity with them. 38 If rights are violated, the state is obli-
gated to ensure domestic remedies to correct the harm are available. 39
A failure to do so may allow the individual to bring a complaint
against the state before an international tribunal. No international
procedures exist at present whereby an injured individual may directly
hold responsible the individual perpetrator of the harm. 40
Despite the emphasis on state responsibility, international human
rights instruments continue to recognize human rights that are vio-
lated predominately by non-state actors, for example, freedom from
slavery and forced labor. The duty imposed in such instances, how-
ever, remains primarily on the state to ensure the right against the
slave holders and employers of forced labor. Human rights instru-
ments also speak to the obligations of non-state actors. The first gen-

into the social compacts by which governments are created, they in effect deputize their
governments to discharge their duties to protect human rights on their behalves. This
would explain why it is customary to treat governments as the addressees of human rights,
but also why, when governments fail to fulfill their roles in protecting these rights, the
responsibility to see that they are protected devolves on individuals." MORTON E. WINSTON,
THE PHILOSOPHY OF HUMAN RIGHTS 9 (1988).
37 See Anne Orford, Contesting Globalization: A Feminist Perspective on the Future of Human
Rights, in THE FUTURE OF INTERNATIONAL HUMAN RIGHTS 157, 157 (Burns H. Weston &
Stephen P. Marks eds., 1999) (noting human rights law was not designed to consider as
human rights violations those abuses that take place in the private sector).
38 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, art. 1, G.A. Res. 39/46, U.N. GAOR, Supp. No.
51, at 197, U.N. Doc. E/CN.4/1984/72 (1984), reprinted in 23 I.L.M. 1027 (entered into
force June 26, 1987) ("[Torture) means any act by which severe pain or suffering ... is
intentionally inflicted on a person ... by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity."); Inter-
American Convention to Prevent and Punish Torture, Dec. 9, 1985, art. 3, O.A.S.T.S. No.
67, O.A.S. Doc. OEA/ser. P., AG/doc. 2023/85, reprinted in 25 I.L.M. 519 (1986) (entered
into force Feb. 28, 1987) (describing those who shall be guilty of torture as including a
public servant or employee or a person acting at the instigation of a public servant or em-
ployee).
39 See generally DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAw

(2000).
40 According to Michael Riesman, one of the "crueler ironies" of human rights law is

that the system allows the actual wrongdoers to escape responsibility while the victims pay
taxes the state uses to compensate such victims for the harms they have suffered. Michael
Reisman & Janet Koven Levit, Reflections on the Problem of Individual Responsibility for Viola-
tions of Human Rights, in THE MoDERN WoRLD OF HuMAN RIGHTS: EssAYS IN HoNOR OF
THOMAS BUERGENTHAL 419, 421 (Pedro Nikken & Antonio Cancado Trindade eds., 1996).
2002] Human Rights in a Globalized World 283

eral international human rights instrument, the American Declara-

tion of the Rights and Duties of Man (American Declaration), begins
its preamble with an exhortation to all individuals to conduct them-
selves with respect for the rights and freedoms of others. It clearly
views individuals as having duties towards each other.41 The Universal
Declaration of Human Rights (Universal Declaration), adopted some
six months later, refers to itself as "a common standard of achieve-
ment for all peoples and all nations, to the end that every individual,
and every organ of society" shall strive to promote respect for, and
observance of, the rights. 42 Article 1 of the Universal Declaration
specifically refers to the behavior of individuals towards each other.43
This is complemented at the close of the Universal Declaration with a
firm statement that, "[n]othing in this Declaration may be interpreted
as implying for any [s]tate, group or person any right to engage in any
activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein. "44 Human rights law also im-
poses individual responsibility for some human rights violations45 and
other acts 46 designated as crimes under international law. These of-
fenses require the state where the offender is found to try or extradite
the individual, and in a few instances may allow prosecution before an

41 See American Declaration of the Rights and Duties of Man, Ninth International Con-

ference of American States, O.A.S. Res. XXX, art. XXIX, O.A.S. Off. Rec. OEA/ser.
L./V/1.4 Rev. ( 1965). ("It is the duty of the individual to so conduct himself in relation to
others that each and every one may fully form and develop his personality.").
42 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess.,
at 71, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration].
43 !d. art. I.
44 /d. art. 30.

45 Human rights treaties that call for criminalization of specific acts include the Con-

vention on the Prevention and Punishment of the Crime of Genocide, the U.N. Conven-
tion Against Torture, the Inter-American Convention against Torture, the Inter-American
Convention on Forced Disappearance of Persons, and the International Convention on
the Suppression and Punishment of the Crime of Apartheid.
46 See, e.g., Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16,

1970, 22 U.S.T. 1641, 860 U.N.T.S. 105, 10 I.L.M. 133 (1971) (entry into force Oct. 14,
1971); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Avia-
tion, Sept. 23, 1971, 24 U.S.T. 564, 10 I.L.M. 1151 (1971) (entry into force Jan. 26, 1973);
Convention on the Prevention and Punishment of Crimes against Internationally Pro-
tected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S.
168, 13 I.L.M. 41 (1974) (entry into force Feb. 20, 1977); European Convention on the
Suppression of Terrorism, Nov. 10, 1976, Europ. T.S. No. 90, 15 I.L.M. 1272 (1976) (entry
into force, Aug. 4, 1978); International Convention against the Taking of Hostages, June 3,
1983, G.A. Res. 34/146, at xxxiv, U.N. GAOR, Supp. No. 46, at 245, U.N. Doc. A/34/786
(1979), reprinted in 181.L.M. 1456 (1979).
284 Boston College International & Comparative Law Review [Vol. 25:273

international tribunal. 47 More generally, Article 28 of the Universal

Declaration recognizes that, "[e]veryone is entitled to a social and
international order in which the rights and freedoms set for in th [e]
Declaration can be fully realized. "48 From this may emerge the princi-
ple that respect for human rights applies to all societal relations lo-
cally, regionally, and globally. Thus, although positive human rights
law generally addresses state action or inaction, the theoretical and
positive foundation is there to apply human rights guarantees to non-
state actors.
In recent years, the many facets and importance of the complex
interplay of human rights and globalization are reflected in the mul-
tiple studies conducted on aspects of globalization by the human
rights organs of the United Nations (U.N.). The Sub-Commission on
the Promotion and Protection of Human Rights (Sub-Commission)
has undertaken studies on transnational corporations,49 on the impact
of globalization on the enjoyment of human rights generally, 50 the
impact of globalization on racism and xenophobia,51 the relationship
between the enjoyment of human rights and income distribution,52
and on human rights as the primary objective of international trade,

47 For crimes committed in the former Yugoslavia and in Rwanda, the U.N. created
special international tribunals, but a permanent international court does not exist.
48 Universal Declaration, supra note 42, at 71.
49 See The Relationship Between the Enjayment of Economic, Social and Cultural Rights and the

Right to Development, and the Working Methods and Activities of Transnational Corporations, Sub-
Commission on Prevention of Discrimination and Protection of Minorities Res. 1998/8,
U.N. ESCOR, 50th Sess., 26th mtg., U.N. Doc. E/CN.4/Sub.2/Res/1998/8 (1998) [here-
inafter Sub-Commission Resolution 1999 /8].
50 See J. Oloka-Onyango & Deepika Udagama, The Realization of Economic, Social and Cul-

tural Rights: Globalization and Its Impact on the Full Enjayment of Human Rights, U.N. ESCOR,
52d Sess., U.N. Doc. E/CN.4/Sub.2/2000/13 (2000) (submitted in accordance with Sub-
Commission Resolution 1999/8) [hereinafter Oloka-Onyango & Udagama, Globalization I];
J. Oloka-Onyango & Deepika Udagama, Economic, Social and Cultural Rights: Globalization
and Its Impact on the Full Enjayment of Human Rights, U.N. ESCOR, 53d Sess., U.N. Doc.
E/CN.4/Sub.2/2001/10 (2001) (submitted in accordance with Sub-Commission Resolu-
tion 1999/8 and Commission on Human Rights Decision 2000/102). In decision
2000/102, the Commission on Human Rights decided to approve the nomination ofMr.J.
Oloka-Onyango and Ms. Deepika Udagama as Special Rapporteurs to undertake a study
on the issue of globalization and its impact on the full enjoyment of all human rights.
51 See J. Oloka-Onyango, Comprehensive Examination of Thematic Issues Relating to the
Elimination of Racial Discrimination: Globalization in the Context of Increased Incidents of Racism,
Racial Discrimination and Xenophobia, U.N. ESCOR, 51st Sess., U.N. Doc. E/CN.4/Sub.2/
1999/8 (1999) [hereinafter Oloka-Onyango, Racism].
52 See Jose Ben goa, The Realization of Economic, Social and Cultural Rights: The Relationship

Between the Enjayment of Human Rights, in Particular Economic, Social and Cultural Rights, and
Income Distribution, U.N. ESCOR, 49th Sess., U.N. Doc. E/CN.4/Sub.2/1997/9 (1997).
2002] Human Rights in a Globalized World 285

investment, and finance policy and practice. 53 Beginning in 1998, the

Commission on Human Rights (Commission) established a working
group on the impact of structural adjustment programs on economic,
social, and cultural rights. 54 The working group is largely composed of
developing countries, with France, Germany, and Italy representing
industrialized countries among the sixteen states participating. The
Commission also has appointed an independent expert on the
topic. 55
Both the Commission and the Sub-Commission have adopted
resolutions on globalization and human rights.56 The Sub-
Commission also unanimously adopted a resolution on trade liberali-
zation and its impact on human rights,57 in which it asked all govern-
ments and forums of economic policy to take fully into consideration
the obligations and principles of human rights in the formulation of
international economic policy. At the same time, the resolution ex-
pressed opposition to unilateral sanctions and to negative condition-
ality on trade as a means to integrate human rights into the policies
and practices governing international economic matters. The resolu-
tion requested the High Commissioner for Human Rights to cooper-
ate with the World Trade Organization (WTO) and its member states
to underline the human dimension of free trade and investments and
to take measures to see that human rights principles and obligations
are fully taken into account in future negotiations in the framework
oftheWTO.
Finally, it is noteworthy that human rights law not only potentially
imposes duties on non-state economic actors, it guarantees rights es-

53 See]. Oloka-Onyango & Deepika Udagama, The Realization of Economic, Social and Cul-
tural Rights: Human Rights as the Primary Objective of International Trade, Investment and Fi-
nance Policy and Practice, U.N. ESCOR, 51st Sess., U.N. Doc. [Link].4/Sub.2/1999/ll
(1999).
54 See Economic, Social and Cultural Rights: Report of the Open-ended Working Group on Struc-
tural Adjustment Programmes and Economic, Social and Cultural Rights on Its Second Session.,
U.N. ESCOR, 55th Sess., U.N. Doc. E/CNA/1999/51 (1999).
55 See Fantu Cheru, Economic, Social and Cultural Rights: Effects of Structural Adjustment
Policies on the Full Enjoyment of Human Rights, U.N. ESCOR, 51st Sess., U.N. Doc.
E/CNA/1999/50 (1999).
56 For more information on this matter, see the Commission on Human Rights, Reso-
lution 1999/59 of April 27, 1999, and the Sub-Commission on the Promotion and Protec-
tion of Human Rights, on globalization and its impact on the full enjoyment of all human
rights. U.N. ESCOR, 51st Sess., 58th mtg., U.N. Doc. E/CNA/Res/1999/59 (1999); U.N.
ESCOR, 52d Sess., 32d mtg., U.N. Doc E/CN.4/Sub.2/Res/2000/7 (2000).
57 See Trade Liberalization and Human Rights, Sub-Commission on the Promotion and
Protection of Human Rights Res. 1999/30, U.N. ESCOR, 51st Sess., U.N. Doc.
E/CN.4/Sub.2/ Res/1999/30 (1999) [hereinafter Res. 1999/30).
286 Boston College International & Camparative Law Review [Vol. 25:273

sential for the furtherance of globalization. It protects the right to

property, including intellectual property, freedom of expression and
communications across boundaries, due process for contractual or
other business disputes, and a remedy before an independent tribu-
nal when rights are violated. Furthermore, the rule of law is an essen-
tial prerequisite to the long-term conduct of trade and investment.

B. The Framework of International Trade Law

Intrinsic to globalization is the contemporary legal and institu-
tional framework within which the regimes of international trade,
finance, and investment are being conducted. In general, economic
globalization has a focus on economic efficiency, the goal being to
improve economic well being through efficient market exchanges. 58
The system is based upon enhancing the economic well being of na-
tions through trade, on the theory that gains are maximized through
the unrestricted flow of goods across national boundaries. 59 The sys-
tem rests upon a view of humans as economic beings that seek to
maximize wealth and self-interested satisfaction of personal prefer-
ences. 60 In a pure economic model, values outside efficiency are ir-
relevant, even pernicious because they complicate or hamper the
trading [Link]

58 See jOHN H. jACKSON, THE WORLD TRADING SYSTEM: LAw AND POLICY OF INTERNA-

TIONAL ECONOMIC RELATIONS 8-9 (2d ed. 1989).

59 See DOUGLAS A. IRWIN, AGAINST THE TIDE: AN INTELLECTUAL HISTORY OF FREE
TRADE 3 (1996).
60 On economic values, see Daniel M. Hausman & Michael S. McPherson, Taking Ethics

Seriously: Economic and Contemporary Moral Philosophy, 31 J. EcoN. LITERATURE 671, 671
(1993).
61 The consequences of the economic approach can be tested by considering the issue
of child labor. The ILO estimates that there are approximately 250 million children work-
ing worldwide. ILO Report of the Director General, supra note 25, § 1.3. From the human
rights perspective, a ban on child labor is necessary for the well-being, dignity, and proper
development of the child. It is also legally required to implement the ILO Convention and
the Convention on the Rights of the Child which reflect these goals. Convention on the
Rights of the Child, Nov. 20, 1989, 28 I.L.M. 1456 (1989). Every state except the United
States has ratified the latter Convention and some states have enacted child labor bans, in
total or in part. For example, the United States prohibits the importation of products
"mined, produced and manufactured by forced or indentured child labor." Treasury and
General Government Appropriations Act of 1998, Pub. L. No. 105-61, § 634, Ill Stat.
1272, 1316 (1998). From the perspective of international economic theory, it can be ar-
gued that such bans should be discouraged because they are inefficient. Child labor pro-
duces goods more cheaply and gives an economic advantage to the producing state. On
the other hand, economic analysis also shows that productivity increases with the educa-
tional level of workers and in the long run is likely to be more economically beneficial
than child labor. Within the international trading regime, such trade bans could be found
2002] Human Rights in a Globalized World 287

The legal dimensions of the framework are expressed in interna-

tional economic law and the institutional structure of the Bretton
Woods multilateral lending institutions and the WTO. International
trade and finance institutions were created largely to operate on the
economic model and generally exclude from consideration other val-
ues of international society, like human rights and environmental pro-
tection.
The international trade regime is clearly marked by a commit-
ment to open markets. 62 The Uruguay Round agreements that con-
cluded with the establishment of the WT0 63 expanded the substantive
reach of international trade regulation to include trade-related aspect
of intellectual property, 64 trade in services, 65 and trade-related invest-
ment measures. 66 Yet, within the legal instruments and policies related
to trade and investment there can be found some considerations of
human rights. The General Agreement on Tariffs and Trade (GATT)
allows states to ban the importation of products stemming from
prison labor. 67 In addition, GATT Article XX(a) permits trade meas-
ures "necessary to human morals."68 GATT Article XX(b) allows

to be in violation of the most-favored-nation and national treatment requirements unless

they are justified by one of the exceptions found in GAIT article XX. The jurisprudence
of the WfO suggests that only products themselves are the subject of the restrictions, not
the processes by which they are made. See GATT Dispute Panel Report on Thailand-Re-
strictions on Imp. of and Internal Taxes on Cigarettes, Nov. 7, 1990, GATT B.I.S.D. (37th
Supp.) at 200, DS 10/R-375/200 (1991); GATT Dispute Panel Report on U.S. Restrictions
on Imp. of Tuna, 331.L.M. 1594 (1991).
6 2 Frank Garcia argues that, "the regulatory framework which international economic

law provides for globalization operates according to a view of human nature, human values
and moral decision-making fundamentally at odds with the view of human nature, human
values and moral decision-making which underlies international human rights law." Gar-
cia, supra note 28, at 53 (1999).
6 3 See Agreement Establishing the World Trade Organization, Apr. 15, 1994, 108 Stat.
4809,4815,33I.L.M.1125,1144 (1994) [hereinafterWfOAgreement].
64 See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15,
1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, LEGAL
INSTRUMENTS-RESULTS OF THE URUGUAY RoUND vol. 31, 33 I.L.M. 81 (1994), availabfR at
http:/ /[Link] [hereinafter TRIPs Agreement].
65 See General Agreement on Trade in Services, Apr. 15, 1994, 108, Stat. 4809, 4815, 33

I.L.M. 1167 (1994), availabk at http:/ /[Link] [hereinafter GATS Agreement].

66 See Agreement on Trade-Related Investment Measures, Apr. 15, 1994, 108 Stat. 4809,

4815 (1994), availabk at http:/ /[Link].

6 ' General Agreement on Tariffs and Trade, Oct. 30, 1947, art. XX(e), 61 Stat. 5, A3,

T.I.A.S. 1700, 55 U.N.T.S. 187, availabk at http:/ /[Link] [hereinafter GAIT Agree-
ment]; General Agreement on Tariffs and Trade-Multilateral Trade Negotiations, Final Act
Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15,
1994, art. XX( e), 331.L.M. 1125 (1994).
68 GATT Agreement, supra note 67, art. XX(a).
288 Boston College International & Comparative Law Review [Vol. 25:273

measures "necessary to protect human, animal or plant life or

health. "69 All of these exceptions are limited by the Article XX chapeau
that requires the measures taken not be a means of arbitrary or un-
justifiable discrimination or a disguised restriction on trade. 70
The agreement establishing the WTO refers to "reciprocal ar-
rangements" for tariff reductions and the "elimination of discrimina-
tory treatment in international trade relations. "71 Yet, the annexes to
the WTO Agreement comprise seventeen interwoven trade agree-
ments that accord rights indirectly to individuals and other non-state
actors. 72 Among the rights protected are those of intellectual prop-
erty.73 The General Agreement on Trade in Services (GATS) applies
most-favored nation and national treatment principles to service sup-
pliers, requiring that governments accord non-national service sup-
pliers treatment no less favorable than that granted to suppliers from
any other country. 74 The earlier GATT Article X requires remedies
before independent tribunals for those affected by the application of
national laws and public information about those laws and regula-
tions. 75 The WTO extends these procedural rights to the agreements
on antidumping, subsidies, intellectual property, and services. 76
In jurisprudence and statements of international officials, the
rights of non-state actors are beginning to be considered. In a 1999
panel decision, the panel stated that, "the multilateral trading system
is, per force, composed not only of States but also, indeed mostly, of
individual economic operators" whose needs should be a factor in de-
ciding disputes brought to the WT0.77 The U.N. Secretary-General

69 /d. art. XX(b).

70/d. art. XX. For an interpretation of the chapeau and Article XX exceptions, see
GAIT Appellate Body Report on U.S.-Imp. Prohibition of Certain Shrimp and Shrimp
Prod.,§ VI(c), Wf/DS58/AB/R (Oct. 12, 1998), available atl998 WL 720123, at *41.
n WTO Agreement, supra note 63, pmbl.
72 See Steve Charnowitz, The WTO and the Rights of the Individual, 36 lNTERECONOMICS
98 (2001).
73 SeeTRlPsAgreement, supra note 64, arts.l.3, 2.1, 9.1, 10.2, 11, 14.2, 16.1, 25.1, 27.1,
35.
74 GATS Agreement, supra note 65, arts. I:2(d), 11:1.
75 GAIT Agreement, supra note 67, art. X.
76 For the application of such procedural rights to anti-dumping, see the WfO
Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994, arts. 6.1, 12.1, 12.2, 6.2, 6.9, 8.3, 13, 11.2, available at http:/ I docson-
[Link] (last visited Mar. 1, 2002), and for the application of subsidies. See TRIPs
Agreement, supra note 64, arts. 22.2, 23.1, 26.1, 28.1, 31, 39.2, 41, 42, 46; GATs Agreement,
supra note 65, arts. VI, VII.5.
77 GAIT Dispute Panel Report on U.S.-Sections 301-310 of the Trade Act of 1974,
n 7.76, 7.90, 7.94, 7.167, Wf/DS152/R (Dec. 22, 1999).
2002] Human Rights in a Globalized World 289

has found that the goals and principles of the wro agreements and
those of human rights law have much in common in part because the
wro agreements "seek to create a liberal and rules-based multilateral
trading system" according to which states can trade under conditions
of fair competition. 78
Yet, efforts to strengthen human rights protections in trade law
have run into difficulties. The WfO Singapore Ministerial Declara-
tion made reference to international labor standards, yet primarily
affirmed the jurisdiction of the ILO over the matter.79 Before and dur-
ing the meeting of member states of the WfO in Seattle, developing
countries opposed any discussion or negotiation on worker rights.
Industrialized countries recommended enhanced cooperation be-
tween the secretariats of the WfO and the ILO, while the United
States called for the elaboration of a working program dedicated to
employment standards. It seems clear that at present the wro would
oppose the use of unilateral or multilateral trade sanctions for human
rights violations. Regional economic bodies have more easily raised
human rights matters.80
With globalization, the International Monetary Fund (IMF) and
the World Bank have received considerable attention because of the
substantial impact they can have on human rights, although both ini-
tially resisted taking human rights into account in their operations. 81
The General Counsel of the World Bank at first rejected the idea that
the Bank should take into account human rights concerns, arguing a
need to honor the Bank's Charter82 "and to respect the specialisation
of different international organisations. "83 Recently, the World Bank

78 The goals of the WfO include the objectives of increasing living standards, full em-
ployment, the expansion of demand, production and trade in goods and services, linked
to optimal use of the world's resources according to the objective of sustainable develop-
ment. WfO Agreement, supra note 63, pmbl.
79 World Trade Organization, Singapore Ministerial Declaration 'I 4, WfO Doc. Wf I
MIN(96)DEC/W (Dec. 13, 1996), reprinted in 36 I.L.M. 218,221 (1997).
80 NAFTA has created a Labor Commission to monitor national enforcement of labor

laws. North-American Agreement on Labor Cooperation, Sept. 8, 1993, Can.-Mex.-U.S.,

art. 8.1, 32 I.L.M. 1499, 1504 (1993). The European Union makes respect for human
rights a condition of membership via the Treaty of Amsterdam.
81 See James Gathii, Human Rights, The World Bank and the Washington Consensus: 1949-

1999, 94 AM. Soc'v INT'L L. PROC. 144, 144 (2000); Anne Orford, The Subject of Globaliza-
tion: Economics, identity and Human Rights, 94 AM. Soc'v INT'L L. PRoc. 146, 147 (2000).
82 The Articles of Agreement of the International Bank for Reconstruction and Devel-
opment, July 22, 1944, 60 Stat. 1440, 2 U.N.T.S. 134, as amended, 16 U.S.T. 1942, 606
U.N.T.S. 294 (1965) (providing in Article IV, section 10 that, "[o]nly economic considera-
tions shall be relevant" in the Bank's lending decisions and operations).
83 Ibrahim Shibata, Democracy and Development, 46 INT'L & CoMP. L.Q. 635, 638 (1997).
290 Boston College International & Comparative Law Review [Vol. 25:273

has begun to consider the human dimension of its work and it has
declared that the alleviation of poverty is its main objective. The Bank
has also been active in designing mechanisms to address the issue of
the debt burden, culminating in the highly indebted poor countries
(HIPC) initiative.
These efforts mark a shift from the "Washington Consensus"
methods of structural adjustment and economic liberalization that
were applied in the 1980s and early 1990s to the macroeconomic
policies of developing countries. 84 The Washington Consensus privi-
leged market forces, and the Bank followed by promoting privatiza-
tion programs that took the state out of health, education, and hous-
ing. Reduced social spending transferred resources to the private
sector and, in some cases, to the military. Human rights activists re-
sponded by demanding greater attention to human rights and a social
safety net to meet the basic needs of individuals.
Largely as a result of scrutiny from non-governmental organiza-
tions and activists concerned about increasing wealth disparity, in-
creased unemployment and other failures to improve the human
condition in the countries subject to Bank operations, the Bank has
begun to pay attention to social safety nets, human rights, and the no-
tion of good governance. By 1990, the General Counsel determined
that, " [v] iolation of political rights may ... reach such proportions as
to become a Bank concern due to significant direct economic effects
or if it results [in violation of] international obligations. "85 In 1998,
the Bank published a report on development and human rights em-
phasizing equality and development and the protection of vulnerable
groups.B6 It also instituted its Inspection Panel to hear a narrow spec-
trum of complaints about violations of Bank policy.
The IMF has been less accommodating and remains under pres-
sure to incorporate human rights concerns in its activities. Mter a
difficult public encounter in May, 2001 between the IMF and the U.N.
Committee on Economic, Social and Cultural Rights (CESCR), the
latter invited three members of the CESCR to meet with the IMF in

84 See Cord Jakobeit, The World Bank and Human Development: Washington's New Strategic
Approach, 6 DEV. & COOPERATION 1, 4 (1999).
85 IBRAHIM SHIHATA, ISSUES OF "GOVERNANCE" IN BoRROWING MEMBERS: THE EXTENT
OF THEIR RELEVANCE UNDER THE BANK'S ARTICLES OF AGREEMENT (1990), quoted in jOHN
STREMLAU & FRANCISCO SAGASTI, PREVENTING DEADLY CONFLICT: DOES THE WoRLD BANK
HAvE A RoLE? 45 (1998).
86 WoRLD BANK GROUP, DEVELOPMENT AND HUMAN RIGHTS: THE ROLE OF THE WoRLD
BANK ( 1998), available at http:/ /[Link]/html/ extdr/rights/[Link] (last
visited Mar. 11, 2002).
2002] Human Rights in a Globalized Wmtd 291

Washington on October 31, 2001, to have informal, private discus-

sions to try to find some common ground and build confidence.
The IMF argues that its founding Charter mandates that it pay
attention only to issues of economic nature. The IMF has issued a
document on "Good Governance,"87 said to respond to the fact that,
"a much broader range of institutional reforms is needed if countries
are to establish and maintain private sector confidence and thereby
lay the basis for sustained growth. "88 The IMF's concerns still appear
confined to:
Issues such as institutional reforms of the treasury, budget
preparation and approval procedures, tax administration,
accounting, and audit mechanisms, central bank operations,
and the official statistics function. Similarly, reforms of mar-
ket mechanisms would focus primarily on the exchange,
trade, and price systems, and aspects of the financial system.
In the regulatory and legal areas, IMF advice would focus on
taxation, banking sector laws and regulations, and the estab-
lishment of free and fair market entry. 89
The "Good Governance" document emphasizes combating corrup-
tion and the need to establish transparent operational systems within
states; there is no mention of human rights. The Guidelines also say
nothing about the IMF itself and its operations.
While both the World Bank and the IMF have modified their pol-
icy stances to reduce the emphasis on structural adjustment policies
to give greater emphasis to poverty reduction, the ILO still faults
them for failing to give enough importance to employment. In its
view, a number of country experiences clearly show that integration in
global markets is compatible with successful social policy, provided
there are adequate national social security systems, functioning sys-
tems of social dialogue and relatively low income inequality.90

II. Is GLOBALIZATION Goon FOR HUMAN RIGHTS?

There is considerable debate over the question of whether or not

globalization is good for human rights. One view is that globalization

87 See gmerally INTERNATIONAL MoNETARY FuND, Goon GovERNANCE: THE IMF's RoLE
(1997).
88 !d. at v.
89 !d. at 4.

90 See gmerally ILO Report of the Director General, sufrra note 25, at 9.
292 Boston College International & Comparative Law Review [Vol. 25:273

enhances human rights, leading to economic benefits and conse-

quent political freedoms. 91 The positive contributions of globalization
have even led to the proposal that it be accepted as a new human
right. 92 In general, trade theory predicts a significant increase in
global welfare stemming from globalization, indirectly enhancing the
attainment of economic conditions necessary for economic and social
rights. Many thus believe that market mechanisms and liberalized
trade will lead to an improvement in the living standards of all peo-
ple. Some also posit that free trade and economic freedom are neces-
sary conditions of political freedom, or at least contribute to the rule
of law that is an essential component of human rights. 93 Certainly,
globalization facilitates international exchanges that overcome the
confines of a single nation or a civilization, allowing participation in a
global community. There is also the possibility that economic power
can be utilized to sanction human rights violators more effectively. 94
Ease of movement of people, goods, and services are enhanced. In-
creased availability and more efficient allocation of resources, more
open and competitive production and improved governance could
lead to faster growth and more rights. In sum, Judith Bello argues
that:
Trade liberalization promotes the growth of stability-
promoting middle class all over the globe; trade enhances
efficiency and wealth and thereby creates potential revenue
for environmental protection. Trade creates jobs in develop-
ing as well as developed countries, thereby reducing the
pressure on both illegal immigration and illicit drug
trafficking. Trade liberalization is not a panacea for the
world's problems, but it can be part of a solution for many of
them. 95
The pro-globalization assumption that globalization is in the
common good and market forces will achieve general well being is

91 See ANTHONY GIDDENS, RuNAWAY WoRLD: How GLOBAUZATION Is REsHAPING OuR

LIVES 30-35 (1999).
92 M.D. Pendleton, A New Human Right-The Right to Gwbalization, 22 FoRDHAM INT'L
LJ. 2052, 2052 (1999).
See Garcia, supra note 32, at 60.
93
See Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic
94
Human Rights: A Proposal for Addition to the World Trade Organization, 11 AM. U.J. INT'L L. &
PoL'Y 1, 42-45 (1996).
95 Judith Bello, National Sovereignty and Transnational Problem Solving, 18 CARDozo L.
REv. 1027, 1029 (1996).
2002] Human Rights in a Globalized World 293

not a consensus view. Anne Orford, for example, argues that, "[t]he
trade and investment liberalization furthered by the Uruguay Round
agreements entrenches a relationship between states and transna-
tional corporations that privileges the property interests of those cor-
porations over the human rights of local peoples and communities. "96
As such, the economic and technological changes associated with
globalization may lead to a world in which the state is no longer the
principal threat to human rights, but one where the threats are more
posed by multinational corporations, multilateral intergovernmental
organizations, and transnational criminal syndicates or organized ter-
rorists. The U.N. Development Program devoted its 2000 Human De-
velopment Report to "Human Development and Human Rights" in
which it pointed out that, "global corporations can have enormous
impact on human rights-in their employment practices, in their en-
vironmental impact, in their support for corrupt regimes or in their
advocacy for policy changes. "97
It has been argued that values associated with human rights
emerge with multinational free market growth, as the rule of law fol-
lows investors who seek predictability and safeguarding of invest-
ments, leading to strengthened independent institutions for civil and
political rights, but human rights advocates assert that liberalization
in trade, investment, and finance does not necessarily lead to general
economic development or better human rights performance. Accord-
ing to the Oxfam Poverty Report:
Trade has the power to create opportunities and support
livelihoods; and it has the power to destroy them. Produc-
tion for export can generate income, employment, and the
foreign exchange which poor countries need for their de-
velopment. But it can also cause environmental destruction
and a loss of livelihoods, or lead to unacceptable levels of
exploitation. The human impact of trade depends on how
goods are produced, who controls the production and mar-
keting, how the wealth generated is distributed, and the
terms upon which countries trade. The way in which the in-
ternational trading system is managed has a critical bearing
on all of these areas. 9 8

96 Orford, supra note 37, 169.

97 UNDP, supra note 16, at 1.
98 KEviN WATKINS, THE OxFAM PovERTY REPORT 109-110 (1995).
294 Boston College International & Comparative Law Review [Vol. 25:273

Opponents of globalization see it as a threat to human rights in

several ways. First, local decision-making and democratic participation
are undermined when multinational companies, the World Bank, and
the IMF set national economic and social policies. Second, unre-
stricted market forces threaten economic, social, and cultural rights
such as the right to health, especially when structural adjustment
policies reduce public expenditures for health and education. Third,
accumulations of power and wealth in the hands of foreign multina-
tional companies increase unemployment, poverty, and the margi-
nalization of vulnerable groups.
Some criticism has been particularly strong. In resolution
1997/11, the U.N. Sub-Commission on the Promotion and Protection
of Human Rights asked El Hadji Guisse to prepare a working docu-
ment on the impact of the activities of transnational corporations on
the realization of economic, social, and cultural rights. The report,
delivered in June, 1998, is a wholesale condemnation of economic
globalization.99 It begins, "[t]oday's economic and financial systems
are organized in such a way as to act as pumps that suck up the output
of the labour of the toiling masses and transfer it, in the form of
wealth and power, to a privileged minority. "loo Given this opening, it is
not surprising that Guisse finds little in globalization that assists in the
realization of human rights. Yet, he agrees that the pursuit of profit is
not necessarily incompatible with the promotion and protection of
human rights.
Globalization is leading to greater problems of state capacity to
comply with human rights obligations, particularly economic, social,
and cultural rights,1o1 such as trade union freedoms,1o2 the right to
work, and the right to social security. It also may have a dispropor-

99 El Hadji Guisse, The Realization of Economic, Social and Cultural Rights: The Q!testion of
Transnational Corporations, U.N. ESCOR, 50th Sess., U.N. Doc. E/CN.4/Sub.2/1998/6
(1998).
100 /d., 1.
101 See Statement by the United Nations Committee on Economic, Social and Cultural
Rights, Globalization and Economic, Social and Cultural Rights (May, 1998), at [Link]
[Link]/tbs/[Link]/385c2ad ... a?OpenDocument&Highlight=O, globalization (last
visited Oct. 22, 2001); see also UNCTAD, WORLD INVESTMENT REPORT 1994: TRANSNA-
TIONAL CORPORATIONS, EMPLOYMENT AND THE WORKPLACE 260 (1994).
102 ILO Report of the Director General, supra note 25, at 9. According to the 2001 re-
port of the ILO Director General, close to two of every five countries have serious or severe
problems of freedom of association. /d.
2002] Human Rights in a Globalized World 295

tionate effect on minorities. 103 Cooperation internationally and from

non-state actors is needed in the face of an undoubted concentration
of wealth in the hands of multinational enterprises, greater than the
wealth of many countries. Globalization is a particular issue for
women, because they often bear a disproportionate burden of pov-
erty, which may be exacerbated by economic restructuring, deregula-
tion, 104 and privatization. 105 Investors have demonstrated a preference
for women in the "soft" industries such as apparel, shoe- and toy-
making, data-processing, and semi-conductor assembling-industries
that require unskilled to semi-skilled labor, leading women to bear the
disproportionate weight of the constraints introduced by globaliza-
tion.106 The process of economic liberalization has also led to growth
in the informal sector and increased female participation therein.
Employment in the informal sector generally means that employment
benefits and mechanisms of protection are unavailable.l 07 Underem-
ployment seems to be as big a problem as open unemployment.
It also has been asserted that states feel compelled to ease labor
standards, modify tax regulations, and relax other standards to attract
foreign investment,108 seen especially in the export production zones
(EPZs) where employment may be plentiful, but working conditions
poor. Labor unions claim that EPZs are sometimes designed to un-
dermine union rights, 109 deny or restrict rights to free association, ex-
pression, and [Link] There are some twenty-seven million work-

1°3 See Marc W. Brown, The Effect of Free Trade, Privatization and Democracy on the Human
Rights Conditions for Minorities in Eastern Europe: A Case Study of the Gypsies in the Czech Republic
and Hungary, 4 BuFF. HuM. RTS. L. REv. 275,275 (1998).
104 See LIN LEAN LlM, MoRE AND BETTER joBs FOR WoMEN: AN AcTION GuiDE 18-20
(Int'l Labour Office 1999). Deregulation and the privatization of state enterprises have
been key components of structural adjustment programs (SAPs) introduced by multilat-
eral lending agencies as conditionals attached to aid packages to developing countries. Id.
105 See generaUy Bharati Sadasivam, The Impact of Structural Adjustment on Women: A Gov-
ernance and Human Rights Agenda, 19 HUM. RTS. Q. 630 (1997).
106 For more information on these effects, see Riham el-Lakany, WTO Trades off
Women's Rights for Bigger Profits, 12 WOMEN's ENv'T & DEv. ORG. 1, 32 (1999), availabk at
[Link]/news/Nov99/[Link].
107 LlM, supra note 104, at 19-20.
108 See Deborah Spar & David Yoffie, Multinational Enterprises and the Prospects for justice,
52J. INT'LAFF. 557,557 (1999).
109 International Confederation of Free Trade Unions, Background Paper: Impkmentation
of International Covenant on Economic, Social and Cultural Rights, 'I 4, U.N. Doc.
E/C.12/1998/4 (1998) [hereinafter ICFTU].
no See, e.g., John Eremu, Uganda Warned on EPZ Strategy, NEW VISION, Dec. 7, 1998, at
54 (noting that exclusive protection zones in many African countries are characterized by
human rights abuses).
----------

296 Boston College International & Comparative Law Review [Vol. 25:273

ers employed in such zones worldwide.1 11 It is estimated that the

number of developing countries with EPZs increased from twenty-four
in 1976 to ninety-three in 2000, with women providing up to 80% of
the labor force.ll2
Another impact observed in many countries is a shift from com-
panies hiring permanent employees with job security and benefits, to
the use of contingent or temporary workers lacking health care, re-
tirement, collective bargaining arrangements, and other security
available to the permanent work force. 113 As with other negative im-
pacts of globalization, this one also has more severe impacts on
women,114 minorities, and migrant workers. 115 Women comprise the
largest segment of migrant labor flows, both internally and interna-
tionally. States often do not include migrant workers in their labor
standards, leaving women particularly vulnerable. 116 Overall, only
some 20% of the world's workers have adequate social protection.l17
In addition, some 3000 people a day die from work-related accidents
or disease. liS
Globalization also has produced an important new type of trans-
boundary criminal enterprise. International crimes that involve or
impact human rights violations are increasing: illegal drug trade,
arms trafficking, money laundering, and traffic in persons are all fa-
cilitated by the same technological advances and open markets that
assist in human rights. Traffic in women for sexual purposes is esti-
mated to involve more than $7 billion a year, but the sex trade is not

m ILO Report of the Director General, supra note 25, at 10.

112 LIM, supra note 104, at 30.
113 See Aaron B. Sukert, Note, Marionettes of Gwbalization: A Comparative Analysis of Protec-
tions for Contingent Workers in the International Community, 27 SYRACUSE J. INT'L L. & CoM.
431,431 (2000).
114 See 1999 World Survey on the Role of Women in Development: Gwbalization, Gender and

Work: &port of the Secretary Genera~ at 9, 54th. Sess., U.N. Doc. A/54/227, U.N. Sales No.
[Link].8 (1999). Women have entered the workforce in large numbers in states that have
embraced liberal economic policies. /d. "It is by now considered a stylized fact that indus-
trialization in the context of globalization is as much female-led as it is export led." The
overall economic activity rate of women for the age group 20-54 approached 70% in 1996.
Id. at 8. One estimate is that 90% of the twenty-seven million people employed in EPZs
worldwide are women. See jOHN HILARY, GLOBALIZATION AND EMPLOYMENT: NEW OPPOR-
TUNITIES, REAL THREATS 1 (1999).
1J5 Hilary, supra note 114, at 440-41.
116 See generally Laurie Nicole Robinson, The Gwbalization of Female Child Prostitution: A

Call for Reintegration and Recovery Measures Via Article 39 of the United Nations Convention on the
Rights of the Child, 5 IND.J. GLOBAL LEGAL STUD. 239 (1997).
117 ILO Report of the Director General, supra note 25, at 9.
118 /d.
2002] Human Rights in a Globalized World 297

the only market for humans. Coercion against agricultural workers,

domestic workers, and factory workers also is evident.
Crime syndicates are rivaling multinational corporations for eco-
nomic power, threatening the security and well being of large num-
bers of persons. The free movement of capital, which is a prior condi-
tion to the growth in foreign investment, permits money laundering
in the absence of exchange controls or other appropriate regulation.
The free circulation of goods can bring stolen automobiles, smuggled
sex workers, and torture implements, as well as fresh fruit and vegeta-
bles. At the same time, new technologies also permit the easier pirat-
ing of intellectual property. Indigenous groups and local communities
challenge the very foundations of intellectual property protection,
particularly when applied to pharmaceuticals necessary to ensure the
right to life and to health.
Certain human rights are particularly threatened by globaliza-
tion. Respect for private life needs protection against personal data
collection. Cultural and linguistic rights can also suffer under global
assault, but the evidence seems contradictory. There is no doubt that
globalization facilitates the transfer of cultural manifestations and cul-
tural property. A study by the U.N. Economic and Social Council
(UNESCO) indicates that commerce in cultural property tripled be-
tween 1980 and 1991 under the impulse of satellite communications,
Internet, and videocassettes.ll9 Yet, in this field, as in others, mergers
and acquisitions have concentrated ownership to the detriment of
local industry. The Hollywood film industry represented 70% of the
European market in 1996, more than double what it was a decade ear-
lier, and constituted 86% of the Latin American market. In the oppo-
site direction, traditional cultures across the world are being transmit-
ted and revived in multiethnic states through the movement of
peoples, their languages, and their beliefs.
Economic globalization has been criticized for protecting inves-
tors to the detriment of local people, arguably increasing unemploy-
ment and underemployment. To make conditions better for investors,
the World Bank and IMF impose economic "reform" that may lead to
human rights violations, including an increase in infant and child
mortality rates.12o In addition, structural reform usually mandates

119 See generally U.N. EcoNOMIC AND SOCIAL COUNCIL, STUDY ON INTERNATIONAL
Fwws OF CuLTURAL GooDs BETWEEN 1980-1998 (2000).
120 See Danilo Turk, The Realization of Economic, Social and Cultural Rights, U.N. GAOR,
Hum. Rts. Comm., 44th Sess., Agenda Item 8, t 1-37, U.N. Doc. E/CN.4/Sub2/1992/16
(1992); see also Statement by the Committee on Economic, Social and Cultural Rights,
298 Boston College International & Comparative Law Review [Vol. 25:273

trade liberalization, something industrialized countries have not been

similarly pressured to do. States may or may not be weakened, but the
weakest within states are further marginalized. Lack of accountability
results from the inability to exercise rights of political participation or
information about key decisions. Structural adjustment may require
cutting public expenditure for health and education, social security,
and housing. Labor deregulation, privatization, and export-oriented
production increase income disparity and marginalization in many
countries.l21 This leaves the main function of the state to be policing
and security, which may lead either to increased political repression
or to violent protests and political destabilization.
According to the independent expert appointed by the U.N. to
study the impact of structural adjustment programs on human rights,
there are two main consequences of such programs. First, they have
led to a significant erosion of the living standards of the poor and in-
vestment in the productive sectors of many countries; second, such
countries have ceded their right to independently determine their
country's development priorities . According to the expert, structural
adjustment shifted from being a mechanism to handle national debt
into a vehicle for deregulation, trade liberalization, and privatiza-
tion-all reducing the role of the state in national development.
Properly structured debt relief is essential to alleviate poverty and
build democratic institutions.l22
The formation and enhancement of transboundary religious,
tribal, corporate, or associational allegiances are aspects of globaliza-
tion that have both positive and negative aspects. They may challenge
the nationality link and loyalty of individuals towards the territorial
state. Networks of human rights activists forming an international civil
society are an important component in the protection of human
rights. Their formation and work is enhanced by information tech-
nology and ease of movement. Networks linked by air, telecommuni-
cations, media, and the Internet allow shared ideas and the formation
of shared values. The human rights activists of the world share values
with each other and a commitment to universal compliance with hu-
man rights norms that transcend nationality and particular cultural

Gwbalization and Economic, Social and Cultural Rights (May, 1998), at http:/ /[Link]/
html/menu2/6/[Link]#note18h [hereinafter Statement, Gwbalization].
121 See Sadasivam, supra note 105, at 630.
122 The debt burden of the thirty-three poorest countries of the world collectively
amounts to $127 billion owed to industrialized countries and institutions. In Mozambique,
one of the poorest countries in the world, 30% of all revenue goes to debt servicing.
2002] Human Rights in a Globalized World 299

values. These activists have in turn pressured corporations to accept

social responsibility in their global dealings. On the negative side, in-
ternational criminal syndicates and terrorist groups form the same
transboundary allegiances and threaten the security of all. The prob-
lems then become those of states that are too weak, not states that are
too strong.

Ill. ARE HUMAN RIGHTS GoOD FOR GLOBALIZATION?

The dominant view among economists and policy makers in mul-

tilateral financial institutions appears to be that any hindrances to
global trade and investment are bad for development in general. Re-
cent studies, however, suggest that business and economic indicators
are better in developing countries that have more favorable civil and
political rights than in repressive regimes.12 3 Mancur Olson explains
that the majority in whose interests a democratic government is ruling
demand smaller growth-retarding exaction from the minority and pay
greater attention to the supply of growth-promoting public goods
than does a dictatorship, even when the majority is acting out of pure
self-interest.l24 According to his analysis, the dispersal of political
power and the emergence of representative government have often
been the trigger for faster economic growth. So, prosperity is not only
good for democracy, but democracy seems good for prosperity. A fea-
ture in the poorest countries is the absence or poor enforcement of
contract and property rights, which are necessary for advanced mar-
kets and rapid growth.
It also seems clear that establishment of the rule of law with pro-
tection for contracts and property rights is essential to maintaining
security for international investment and trade. Tourism is the world's
fastest-growing industry, generating more than 10% of total interna-
tional GNP, and is particularly harmed by images of repression, acts of
terrorism, and the political instability that usually result from wide-
spread human rights abuses. Judicial reform and the establishment of
the rule of law with respect for human rights should be a priority,
even if only for the instrumental reason to secure investment, prop-

12s See A. Bernstein, Labor Standards: Try a Little Democracy, Bus. WK., Dec. 13, 1999, at
42.
124 See generally MANCUR OLSON, POWER AND PROSPERITY: OuTGROWING COMMUNIST
AND CAPITALIST DICTATORSHIPS (2000). On development and human rights, see generally
AMARTYA SEN, DEVELOPMENT AS fREEDOM (1999).
300 Boston College International & Comparative Law Rcuiew [Vol. 25:273

erty, contracts, debts, and profits. 125 As the U.N. Development Pro-
gram's Human Development Report 2000 proclaims, "[r]ights make hu-
man beings better economic actors. "126
Like human rights, economic liberalization is concerned with
restraining the power of the state. At the special session of the U.N.
General Assembly to review progress since the 1995 Copenhagen
World Summit for Social Development, the final document, adopted
on July 1, 2000, makes special reference to the role and responsibili-
ties of the private sector to work with governments to eradicate pov-
erty, promote full employment and universal access to social services,
and ensure that everyone has equal opportunities to participate in
society. In turn, democratic rule and the rule of law inspires further
global business activity, generating an upward spiral in rights protec-
tion. The text encourages corporate social responsibility and pro-
motes dialogue among government, labor, and employer groups. It
also expresses a belief in the relationship between economic growth
and social development. 127 The Copenhagen Declaration and Pro-
gram of Action affirmed that social development and social justice
cannot be attained in the absence of respect for all human rights and
fundamental freedoms. The Sub-Commission on Promotion and Pro-
tection of Human Rights finds in major human rights instruments
"obligations and goals which are fundamental to the development
process and to economic policy. "128
None of the international human rights instruments imposes an
economic model, free trade, or deregulation. Yet, as Anne Orford
points out, there is a link between human rights and a liberal eco-
nomic regime that may facilitate globalization.1 29 Liberal concepts of
human rights identify the individual with property ownership and are
linked with the emergence of capitalism.130 In contrast, the failure by
some governments to respect core labor standards is likely to provoke

125 In Bosnia, foreign investment and donor support have been stifled because of ram-

pant corruption and judges too fearful of retribution to enforce the law. See Chris Hedges,
Leaders in Bosnia Are Said to Steal up to $1 billion, N.Y TIMES, Aug. 17, 1999, at AI; see also
Benn Steil & Susan L. Woodward, A European 'New Deal' for the Balkans, FoREIGN [Link]., Nov.-
Dec. 1999, at 95-96 (noting that reports of financial corruption and delays in creating
economic institutions have driven away corporate investors).
126 UNDP, supra note 16, at iii.
127 For clarification on this relationship, see United Nations, Copenhagen+5 Review, at

http:/ /[Link]/ esa/ socdevI geneva2000/ [Link] (last visited Mar. l 0, 2002).
128 Res. 1999/30, supra note 57.
129 Orford, supra note 81.
130 See jOHN LOCKE, SECOND TREATISE OF GOVERNMENT ch. V, § 27 (C.B. McPherson

ed., Hackett Publishing Co. 1980) ( 1690).

2002] Human Rights in a Globalized World 301

trade tensions and lead to protectionist efforts. The stability of the

world's trading system may thus depend upon ensuring that an open
trading system does not come at the price of human rights.

IV. INTERNATIONAL RESPONSES TO THE PROBLEMS OF

GLOBALIZATION AND HUMAN RIGHTS

Globalization has led to an increased concern about the respon-

sibility of all international actors to ensure the promotion and protec-
tion of human rights. International institutions and scholars have re-
sponded with various proposals for strengthening the international
regime. First, human rights activists and institutions have begun to
posit the primacy of human rights law. The Committee on Economic,
Social and Cultural Rights (CESCR) has emphasized that, "the realms
of trade, finance and investment are in no way exempt from these
general principles [on respect for human rights] and that interna-
tional organizations with specific responsibilities in those areas should
play a positive and constructive role in relation to human rights. "131
The CESCR also asserts that competitiveness, efficiency, and eco-
nomic rationalism must not be permitted to become the primary or
exclusive criteria against which governmental and inter-governmental
policies are evaluated.132
Second, state responsibility for failing to control the actions of
private parties has received considerable attention in the case law of
international tribunals1 33 and the work of the U.N.1 34 Third, interna-
tional law is increasingly regulating non-state behavior directly.
Fourth, private market mechanisms such as codes of conduct or con-
sumer purchasing schemes have sought to influence corporate behav-
ior. Finally, restructured international governance mechanisms are

m Statement, Globalization, supra note 120,1 5.

U2 Id., 4.
133 See, e.g., Inter-Am. C.H.R., Velasquez Rodriguez Case, Judgment of July 29, 1988,

Ser. C, No. 4, 1159-77, available at http:/ /[Link]/sericing/C_4_Eng.html (last

visited Mar. 11, 2002). See generally, Dinah Shelton, Private Violence, Public Wrong:5, and the
Responsibility of States, 13 FoRDHAM INT'L LJ. 1, 1 (1990).
134 The General Assembly has affirmed that while globalization, by its impact on the
role of the state, may affect human rights, the promotion and protection of all human
rights is first and foremost the responsibility of the state. The Assembly has called for an
environment at both the national and global levels that is conducive to development and
to the elimination of poverty through, inter alia, good governance within each country and
at the international level, transparency in the financial, monetary and trading systems and
commitment to an open, equitable, rule-based, predictable, and non-discriminatory multi-
lateral trading and financial system. G.A. Res. 102/54, U.N. GAOR, 54th Sess., U.N. Doc.
A/RES/54/102 (2000).
302 Boston College International & Comparative Law Review [Vol. 25:273

bringing a variety of international actors together to achieve common

goals.
The first general trend, seen particularly among human rights
advocates, has been to affirm the priority of human rights over other
international legal regimes. According to this view, international eco-
nomic policies cannot be exempt from conformity to international
human rights law. States and international organizations are directly
obliged to comply with those principles and obliged to ensure that
private economic actors within their jurisdictions do not act in viola-
tion of those rights. 135 In a 1998 statement on globalization and eco-
nomic, social, and cultural rights, the CESCR expressed its concerns
over the negative impact of globalization on the enjoyment of eco-
nomic, social, and cultural rights, and called on states and multilateral
institutions to pay enhanced attention to taking a rights-based ap-
proach to economic policy-making.I 36 The CESCR declared that the
realms of trade, finance, and investment are in no way exempt from
human rights obligations. Those concerns were raised again in the
statement the CESCR addressed to the WfO Third Ministerial Con-
ference in Seattle in November, 1999. The CESCR urged WfO mem-
bers to adopt a human rights approach at the conference, recognizing
the fact that, "promotion and protection of human rights is the first
responsibility of Governments." 137 The CESCR's language echoes that
of the Vienna Declaration and Program of Action, 138 which affirmed
that, "the promotion and protection of human rights and fundamen-
tal freedoms is the first responsibility of government" and that, "the
human person is the central subject of development." Similarly, the
Copenhagen Declaration and Program of Action 139 recommended to

135 According to Diller and Levy, referring specifically to the issue of coercive forms of

child labour, where fundamental human rights norms are implicated, "international Jaw
requires that treaty obligations, such as trade undertakings, be maintained only to the
extent of consistency with these norms." Janelle Diller & David Levy, Child Labor; Trade and
Investment: Toward the Harmonization of International Law, 91 AM. J. INT'L L. 678, 678 ( 1997).
136 Statement, Globalization, supra note 120.
137 Statement of the United Nations Committee on Economic, Social and Cultural Rights to the

Third Ministerial Conference of the World Trade Organization, Committee on Economic, Social
and Cultural Rights, 21st Sess., Agenda item 3, f 6, U.N. Doc. E/C.l2/1999/9 (1999).
138 World Conference on Human Rights, Vienna Declaration and Programme of Action,
U.N. Doc. A/CONF.l57/23; see also Commission on Human Rights, Globalization and its
Impact on the Full Enjoyment of All Human Rights, U.N. Doc. E/CNA/RES/1999/59 (1999)
("While globalization by its impact on, inter alia, the role of the State, may affect human
rights, the promotion and protection of all human rights is first and foremost the respon-
sibility of the State.").
139 Final Act, World Summit for Social Development: Report of the World Summit for Social De-

velopment, U.N. Doc. A/CONF.l66/9 (1995) [hereinafter Final Act].

2002] Human Rights in a Globalized World 303

states the need to intervene in markets to prevent or counteract mar-

ket failure, promote stability and long-term investment, ensure fair
competition and ethical conduct, and harmonize economic and social
development. The Sub-Commission on Promotion and Protection of
Human Rights has expressly asserted the "centrality and primacy" of
human rights obligations in all areas of governance and development,
including international and regional trade, investment and financial
policies, agreements, and practices.l 40 The Commission on Human
Rights, for its part, has affirmed that, "the exercise of the basic rights
of the people of debtor countries to food, housing, clothing, em-
ployment, education, health services and a healthy environment can-
not be subordinated to the implementation of structural adjustment
policies and economic reforms arising from the debt. "1 41 The special
rapporteurs on globalization and its impact on the full enjoyment of
human rights flatly assert that, "the primacy of human rights law over
all other regimes of international law is a basic and fundamental prin-
ciple that should not be departed from. "142
Can the primacy of human rights be justified in international
law? An argument can be posited on the basis of treaty law. The U.N.
Charter refers to human rights in its second preamble paragraph and
lists human rights as the third of its purposes in Article 1, after main-
tenance of peace and security, and the development of friendly rela-
tions among nations based on equal rights and self-determination of
peoples.l43 The Charter not only makes human rights an aim of the
organization, it obligates all member states to take joint and separate
action with the U.N. to achieve universal respect for and observance
of human rights and fundamental freedoms, as in Articles 55 and
56. 144 Article 103 of the Charter provides that, "in the event of a
conflict between the obligations of the members of the United Na-
tions under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter

140 Sub-Commission on Promotion and Protection of Human Rights, Human Rights as

the Primary Objective of Trade, Investment and Financial Policy, U.N. Doc. E/CN.4/Sub.2/
RES/1998/12 (1998); Report of the Sub-Commission on its 50th Sess., U.N. ESCOR, 50th Sess.,
at 39, U.N. Doc. E/CN.4/Sub.2/1998/45 (1998).
141 Commission on Human Rights, Effects of Structural Adjustment Policies and Foreign Debt
on the Full Enji!Jment of All Human Rights, Particularly Economic, Social and Cultural Rights,
U.N. Doc. E/CN.4/RES/2000/82 (2000).
142 Oloka-Onyango & Udagama, Globalization I, supra note 50.
143 U.N. CHARTER pmbl., art. 1.
144 /d. arts. 55-56.
304 Boston College International & Comparative Law Review [Vol. 25:273

shall prevail."145 This "supremacy clause" has been invoked to suggest

that the aims and purposes of the U.N., maintenance of peace and
security, and the promotion and protection of human rights, consti-
tute an international public order to which other treaty regimes must
conform.I 46 It may be argued, however, that there is no conflict be-
tween human rights and the international trade and financial regime
because they regulate separate areas of human activity. In addition,
some may point to the "later in time" rule of the Vienna Convention
on the Law of Treaties. 147 However, the Vienna Convention is not ret-
roactive and, in any case, the provisions of Article 30 expressly provide
that the later in time rule is ''without prejudiced to [A]rticle 103 of
the United Nations Charter. "148 As with domestic bills of rights, inter-
national human rights law may limit the implementation of other so-
cial goals to means and methods compatible with its contents. In prac-
tice, states and international organizations are taking action to
increase the responsibility of state and non-state actors when their
economic activities impact on human rights.
The second response to globalization is found in efforts to insist
on state responsibility for the behavior of non-state actors. As far as
human rights are concerned, this means the state is responsible for its
acts and its omissions. The Restatement of U.S. Foreign Relations Law
makes it clear that a state violates international law if it commits, en-
courages, or condones genocide, slavery, torture, or inhuman or de-
grading treatment.I 49 Complicity in human rights violations between
state and non-state actors is a growing subject of interest and litiga-
tion.
The next question posed is whether or not a state is responsible
for the acts of international organizations in which it participates. The
International Covenant on Economic, Social and Cultural Rights
(ICESCR),I50 Article 2(1), provides that each state party will "take
steps, individually and through international assistance and coopera-

145 Id. art. 103.

146 See id.
147 Vienna Convention on the Law of Treaties, May 27, 1969, art. 59, 1155 U.N.T.S.
331,8 I.L.M. 679 (1969).
148 U.N. CHARTER art. 30.
149 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 601--{)2 (1987).
150 International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A
(XXI), U.N. GAOR, Supp. No. 16, at 49, U.N. Doc. A/6316 (1966), reprinted in 6 I.L.M.
360.
2002] Human Rights in a Globalized World 305

tion" to achieve the rights in the Covenant. 151 This means that voting
in the World Bank or IMF for programs or policies that will lead to
human rights regression in one or more states could be deemed to
violate the voter's obligations under the Covenant.l52
Traditional interpretations of the ICESCR, Article 2, permit states
to determine how and when they allocate resources for the realization
of economic, social, and cultural rights. 153 However, in its General
Comment No. 3 on the nature of the states parties' obligations under
the ICESCR, the CESCR declared that concrete legal obligations are
imposed by the Covenant under Article 2.1 54 State parties are obliged
to realize minimum standards relating to each of the rights utilizing
available resources in an effective manner. Violations can occur either
through commission or omission.
The jurisprudence of the CESCR also recognizes "minimum core
obligations" on the part of state parties that have to be fulfilled irre-
spective of resource or other constraints. In determining whether a
state party has utilized the "maximum of its available resources," at-
tention shall be paid to the equitable and effective use of and access
to available resources. States also may be responsible if they fail to ex-
ercise due diligence in controlling the behavior of non-state actors,
such as transnational corporations, over which they exercise jurisdic-
tion, when such behavior deprives individuals of their economic, so-
cial, and cultural rights.
The CESCR has consulted with multilateral institutions, special-
ized agencies, and non-governmental organizations (NGOs) in devel-
oping its approach to the issue of globalization. Other treaty-based
human rights mechanisms have also shown concern over rising eco-
nomic disparities that impact on their individual mandates. For ex-
ample, the Committee examining periodic country reports under the
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), has shown great concern over the evidence of the
feminization of poverty and the impact of economic policies on the
rights ofwomen.l 55 The Human Rights Committee, in General Com-

151 ld. art. 2(1). Other references to international cooperation are found in Articles
11, 15, 22, and 23.
152 ld.
153 ld. art. 2.
154 See Committee on Economic, Social and Cultural Rights, Report on the Fifth Session,
Economic and Social Counci~ U.N. ESCOR, Supp. No.3, Annex III, General Gmt. No.3, U.N.
Doc. E/1991/23-E/C.12/1990/8 (1991).
155 See Report of the Committee on the Elimination of Discrimination against Women, U.N.
GAOR, 52d Sess., Supp. No. 38, n 295, 345, U.N. Doc. A/52/38/Rev.1 (1997); see also
306 Boston College International & Comparative Law Review [Vol. 25:273

ment No. 28 dealing with equality of rights between men and women,
gives some consideration to issues such as the feminization of poverty,
declining social indicators, and gender inequity in employment within
the framework of globalization.
A number of U.N. specialized agencies have also addressed the
question of globalization. The ILO has long tackled the phenome-
non. From the Copenhagen Social Summit in 1995 to the 1998 Decla-
ration on Fundamental Principles and Rights at Work, the ILO has
pressed for an international consensus on the content of the core la-
bor standards that provide a social floor to the global economy. 156 In
1998, the ILO adopted the Convention concerning the Prohibition
and Immediate Action for the Elimination of the Worst Forms of
Child Labour (Convention No. 182).157 It also adopted its Declaration
on Fundamental Principles and Rights at Work together with a follow-
up procedure based upon technical cooperation and reporting. The
principles have been incorporated into codes of conduct by the pri-
vate sector and also used as a basis for action by various regional
communities, such as the Southern African Development Community,
MERCOSUR, and the Caribbean Community. U.N. bodies and spe-
cialized agencies, such as the U.N. Children's Fund (UNICEF), the
U.N. Educational, Scientific and Cultural Organization (UNESCO),
the Office of the U.N. High Commissioner for Refugees (UNHCR),
and the U.N. Environment Programme (UNEP), have all carried out
work that has implications for the overall response by the U.N. to the
phenomenon of globalization. On the regional level, the European
Union, in the context of negotiations for the fourth Lome Agreement
with countries of Africa, the Caribbean, and the Pacific (ACP states),
sought to include good governance in public affairs, democracy, re-
spect for human rights, and respect for the rule of law, essential in the
elements of the accord, with the termination of assistance for non-
respect of any of the elements.

Committee on the Rights of the Child, Repurt on the Twentieth Session, U.N. ESCOR, U 211-
13, U.N. Doc. CRC/C/84 (1999) (recording a statement made by a representative of the
IMF at the session acknowledging the link between child rights and a stable macroeco-
nomic environment).
156 The rights guaranteed are: freedom of association and the effective recognition of

the right to collective bargaining; elimination of all forms of compulsory or forced labor;
effective abolition of child labor; elimination of discrimination in occupation and em-
ployment. For more information, see the ILO website, at http:/ /[Link].
157 See generally Michele Jackson, A New Convention to Eliminate the Economic Exploitation of
Children, 6 T!uBUNE DES DROITS HUMAINS 36 (1999).
2002] Human Rights in a Globalized World 307

Finally, it may be asserted that both the home and the host states
have obligations to regulate the conduct of multinational companies.
The Trail Smelter Arbitration,158 the Corfu Channel Case,159 and the U.N.
Survey of International Law all state the same principle: every state's
obligation not to allow knowingly its territory to be used contrary to
the rights of other states.1 60 The Trail Smelter Arbitration involved a pri-
vately owned Canadian company that caused harm through its activi-
ties to farmers in the United States. 161 Corporate decisions in one
state to undertake activities in another state that involve human rights
violations could similarly lead to recognition that both states have a
duty to control the conduct of the multinational company.
In a third approach, the international community has been mov-
ing towards greater ascription of individual responsibility for human
rights violations, both by state and by non-state actors. While states
remain primarily responsible for ensuring the promotion and protec-
tion of human rights, increasing attention is being given to the re-
sponsibility under international law of inter-governmental organiza-
tions, business enterprises, and individuals. In this regard, the
international legal system can no longer be described as one govern-
ing states alone. The Universal Declaration of Human Rights opened
the door to this development by providing, in Article 30, that,
"[n]othing in this Declaration may be interpreted as implying for any
[s]tate, group or person any right to engage in any activity or to per-
form any act aimed at the destruction of any of the rights and free-
doms set forth herein. "1 62 Conceptually linked to this, the preceding
article stipulates that, "everyone has duties to the community in which
alone the free and full development of his personality is possible. "1 63
The special rapporteur on the relationship between the enjoy-
ment of human rights, in particular economic, social, and cultural
rights, and income distribution, views economic, social, and cultural
rights as "the set of basic rights which determines the limits of global-
ization."164 In Bengoa's view, "lack of education, early school leaving
and structural poverty are not only general ethical issues but also vio-

158 3 U.N. [Link].A. 1905 (1931-41) [hereinafter Trail Smelter Arbitration].

159 1949 [Link]. 22.
160 Id. See generally supra notes 158-159.
161 Trail Smelter Arbitration, supra note 158.
162 Universal Declaration, supra note 42, art. 30.
163 Id. art. 29.
164 Jose Bengoa, Poverty, Income Distribution and Globalization: A Challenge for Human
Rights, Addendum to the Final Report, at t 28, U.N. ESCOR, 50th Sess., U.N. Doc.
E/CN.4/Sub.2/1998/8 (1998).
308 Boston College International & Comparative Law Review [Vol. 25:273

lations of the human rights proclaimed by international law. "165 He

concludes that the great legal, political, and ethical challenge for the
coming century will be the codification and enforceability of human
rights in an internationalized market. 166 Such an action requires tak-
ing into consideration the fact that the state is neither the sole agent
nor the sole economic actor, despite its central responsibility, for the
realization of economic, social, and cultural rights. Other important
actors are transnational corporations, international organizations,
trading and financial enterprises, and even such groups as private
agencies providing assistance to the poor and needy. 167 He suggests
further development of codes of conduct for these non-state actors
and in particular the formation of a "Social Forum" with the partici-
pation of all such actors. It is somewhat surprising that the suggestion
is this modest, given his characterization of the globalized world as
one where:
There is not only the enormous wealth of a few thousand,
but also the corruption of many [s] tate authorities, the fail-
ure of [s] tate mechanisms and services to discharge their
functions, the unregulated and uncontrolled presence of
transnational corporations and companies, the authoritarian
and unconsidered operation of international financial insti-
tutions, and the frequently futile action of organizations and
institutions which are well-intentioned but which do not co-
ordinate their activities in a stable and sustained manner. 168
Another special rapporteur has remarked upon the lack of effective
mechanisms to enforce the accountability of non-state actors. 169 He
asserts that enforcing respect for codes of conduct, trade union laws,
and rights of association and expression may prove difficult, citing the
example ofthe code on marketing breast milk substitutes. 170
In respect to intergovernmental organizations, the theoretical
basis for insisting that they adhere to human rights standards in their

165 Jd.
166Id. 1 29.
167Id. 'I 31. Bengoa also notes that it is very important that development NGOs, inter-
national cooperation agencies, and charitable foundations participate, "as they are acquir-
ing ever greater relevance in relations between north and south, as part of the growing
'privatization' of cooperation." Id.
168 Id. 1 30.
169 Oloka-Onyango, Racism, supra note 51,, 35.
110 Jd.
2002] Human Rights in a Globalized World 309

programs derives from their international legal personality.l71 Inter-

national organizations are entities created by states delegating power
to achieve certain goals and perform specified functions. While not
states, and not having the full rights and duties of states, international
organizations take on rights and duties under international law. It
would be surprising if states could perform actions collectively
through international organizations that the states could not lawfully
do individually.l72 In other words, if states cannot confer more power
on international organizations than they themselves possess, interna-
tional organizations are bound to respect human rights because all
the states that create them are legally required to respect human
rights pursuant to the U.N. Charter and customary international law.
The Commission on Human Rights has begun to suggest, albeit
very cautiously, that multilateral institutions must conform their poli-
cies and practices to human rights norms. In its Resolution 2001/32,
the Commission recognized:
That multilateral mechanisms have a unique role to play in
meeting the challenges and opportunities presented by
globalization and that the process of globalization must not
be used to weaken or reinterpret the principles enshrined in
the Charter of the U.N., which continues to be the founda-
tion for friendly relations among states, as well as for the
creation of a more just and equitable international eco-
nomic system_l73
The resolution affirms not only the individual responsibility of states
for human rights but "also recognizes that, in addition to [s]tates'
separate responsibilities to their individual societies, they have a col-
lective responsibility to uphold the principles of human dignity, equal-
ity and equity at the global level."174 Subsequent to this, and in the
most recent statement of the human rights bodies on the issue, the
Sub-Commission adopted a resolution in which it considers that, "at-

171 See Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion, 1949 [Link]. 174, 178-79. See generally, Louis Henkin, Responsibility of International
Organizations, in HENKIN ET AL., INTERNATIONAL LAW, CASES AND MATERIALS 359-60 (3d
ed. 1993).
172 The U.N. Charter, Chapter VII, does allow international peace-keeping actions,
however, for threats to the peace, breaches of the peace, and acts of aggression-actions
that would generally not be legal if performed unilaterally except in self-defense.
m Commission on Human Rights, Globalization and its Impact on the Full Enjayment of All
Human Rights, U.N. Doc. E/CNA/RES/2001/32 (2001).
174 /d.
310 Boston College International & Comparative Law Review [Vol. 25:273

tention to the human rights obligations of governments participating

in international economic policy formulation will help to ensure so-
cially just outcomes in the formulation, interpretation and implemen-
tation of those policies."175 The Sub-Commission expresses its grati-
tude for discussions with the WfO, the IMF, and the World Bank, and
attempts to walk a difficult line in reaffirming "the importance and
relevance of human rights obligations in all areas of governance and
development, including international and regional trade, investment
and financial policies and practices, while confirming that this in no
way implies the imposition of conditionalities upon aid to develop-
ment. "176 It urges all governments and "international economic policy
forums" to take international human rights obligations fully into ac-
count in international economic policy formulation.177
In its 1998 comment on globalization, the CESCR called for a
renewed commitment to respect economic, social, and cultural rights,
emphasizing that international organizations, as well as governments
that have created and managed them, have a strong and continuous
responsibility to take whatever measures they can to assist govern-
ments to act in ways that are compatible with their human rights obli-
gations, and to seek to devise policies and programs that promote re-
spect for those rights.178 The CESCR addressed itself in particular to
the IMF and the World Bank, calling upon them to pay enhanced at-
tention to human rights, including "through encouraging explicit
recognition of these rights, assisting in the identification of country-
specific benchmarks to facilitate their promotion, and facilitating the
development of appropriate remedies for responding to violations. "179
The WfO also should "devise appropriate methods to facilitate more
systematic consideration of the impact upon human rights of particu-
lar trade and investment policies. "180 The CESCR's recent General
Comment on the right to food concerns food security within the con-
text of globalization.181 It draws attention to the responsibilities of pri-
vate actors, aside from the obligation of states parties to regulate ap-
propriately their conduct, in the realization of the right to adequate

11s Jd.
176 See id.
177 See id.
Statement, Globalization, supra note 120, i 5.
178
Id.t 7.
179
1so Jd.
181 The Right to Adequate Food: Report of the Committee on Economic, Social and Cultural
Rights, General Comment No. 12, at 102, 106, U.N. ESCOR., Supp. No. 2, U.N. Doc.
E/2000/22 (2000).
2002] Human Rights in a Globalized World 311

food.1 82 The comment goes on to stipulate that, "[t]he private busi-

ness sector-national and transnational-should pursue its activities
within the framework of a code of conduct conducive to respect of
the right to adequate food, agreed upon jointly with the Government
and civil society". 183 Furthermore, it calls upon the IMF and the World
Bank to pay attention to the protection of the right to food in drawing
up lending policies, credit, and structural adjustment programs.I84
This approach by a treaty-based mechanism, focusing on the respon-
sibilities of multilateral organizations as well as private actors in pro-
tecting human rights, is a significant step in international law.
International conferences also have called on international
financial institutions to pay greater attention to human rights,
through promotion and through assisting in the development of
benchmarks to monitor compliance and remedies to respond to viola-
tions.185 In particular, "social safety nets should be defined by refer-
ence to these rights and enhanced attention should be accorded to
such methods to protect the poor and vulnerable in the context of
structural adjustment programs."186 Social monitoring and impact as-
sessments, similar to that done for the environment, are recom-
mended to international financial institutions and to the WTO. Labor
unions have called for including core labor standards in the future
WTO work program_l87
For individuals, international responsibility is also increasing.
The U.N. Development Program Human Development Report 2000 calls
for greater accountability of non-state actors, pointing out that,
"global corporations can have enormous impact on human rights-in
their employment practices, in their environmental impact, in their
support for corrupt regimes or in their advocacy for policy
changes. "1 88 The most egregious acts are proscribed as international
crimes. The Nuremberg Military TribunaP 89 and subsequent princi-

182 /d.
183 /d., 20.
184 /d., 41.
185 See Final Act, supra note 139 (calling for a reorientation of the work of the interna-
tional community including the IMF and the World Bank to establish full employment, the
eradication of poverty and popular participation as the primary goals of global develop-
ment policy); ICITU, supra note 109.
186 ICITU, supra note 109,, 7.
187 /d., 17.
188 UNDP, supra note 16, at 10.
189 See Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 280, 58
Stat. 1544 [hereinafter London Charter].
312 Boston College International & Comparative Law Review [Vol. 25:273

pies prepared by the U.N. International Law Commission190 made

clear that neither government position nor government orders will
free an individual from responsibility for the commission of an inter-
national crime. 19I As was said in the Nuremberg judgment: "crimes
against international law are committed by men and not by abstract
entities and it is only by punishing individuals who commit such
crimes" that international law can be upheld. 192 The U.N. Security
Council also has made clear the international liability of non-state as
well as state actors who commit war crimes and other international
crimes
The list of international crimes at Nuremberg were war crimes,
crimes against peace, and crimes against humanity.I 93 The Convention
on the Prevention and Punishment of the Crime of Genocide affirms
that genocide, whether committed in peacetime or wartime, is a
crime under international law and that, "[p] ersons committing geno-
cide ... shall be punished, whether they are constitutionally responsi-
ble [rulers], public officials, or private individuals."I94 In 1973, the
U.N. similarly declared apartheid a crime against humanity and
broadly imposed responsibility on "individuals, members of organiza-
tions, institutions and State representatives. "195 The International Law
Commission's Draft Code of Crimes against the Peace and Security of
Mankind holds that systematic or widespread violations of human
rights constitute international crimes for which non-state as well as
state actors may be responsible.I 96 Article 21 of the Draft Code of
Crimes imposes individual responsibility for the commission of "mur-
der; torture; establishing or maintaining over persons a status of slav-

190 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in
the judgment of the Tribunal, [1950] Y.B. Int'l L. Comm'n 374-78, U 95-127, U.N. Doc.
A/1316; Draft Code of Crimes Against the Peace and Security of Mankind: Report of the Interna-
tional Law Commission on the Work of its Forty-third Session, [1991] 2 Y.B. lnt'l L. Comm'n 79,
U.N. Doc. A/CN .4/L [Link].4 ( 1991) [hereinafter Draft Code of Crimes].
191 London Charter, supra note 189, arts. 7-8; Draft Code of Crimes, supra note 190, arts.
11, 13.
192 INTERNATIONAL MIUTARY TRIBUNAL, 22 TRIALS OF THE MAJOR WAR CRIMINALS BE-
FORE THE INTERNATIONAL MIUTARY TRIBUNAL 466 ( 1948).
198 London Charter, supra note 189, art. 6.
194 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,
1948, 78 U.N.T.S. 277 (entry into force Jan. 12, 1951).
195 International Convention on the Suppression and Punishment of the Crime of

Apartheid, Nov. 30, 1973, art. III, G.A. Res. 3068 (XXVIII), 28 U.N. GAOR, Supp. No. 30,
U.N. Doc. A/9030 (1974), reprinted in 13 I.L.M. 50.
196 Draft Code of Offenses Against the Pease and Security of Mankind: Report of the Int 'l Law
Comm'n on the Work of its 48th Session, U.N. GAOR, 51st Sess., art. 21, U.N. Doc. A/51/10
(1996).
2002] Human Rights in a Globalized World 313

ery, servitude, or forced labor; persecution on social, political, racial,

religious, or cultural grounds in a systematic manner or on a mass
scale; and deportation or forcible transfer of the population. "197
Recently, member states of international organizations have
sought to reach misconduct that is transnational in character, but not
specifically designated as an international crime. The Inter-American
Convention on Violence against Women calls on state parties thereto
to take action against state and non-state actors that commit violence
against women in the public and private spheres, including family vio-
lence.198 On November 15, 2000, the U.N. General Assembly adopted
a Convention against Transnational Organized Crime and a Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children. 199 This Convention calls on states to criminal-
ize listed offenses, including money laundering and corruption, and
to cooperate to combat transnational crime and to protect victims of
crime.200 The Protocol on Trafficking expressly refers to the human
rights of victims201 and to various human rights abuses such as forced
labor, slavery, or practices similar to slavery. 202 Natural and legal per-
sons may be liable, and the proceeds of crimes confiscated and seized
are to be used for the benefit of victims.
International organizations have taken up several problems
where trade and human rights are linked, in the process enhancing
global governance by bringing together state and non-state actors.
The U.N. Security Council has expressed its concern about the role of
the illicit diamond trade supporting the conflict in Sierra Leone and
called upon the international diamond industry to cooperate on a
ban on all rough diamonds from Sierra Leone.2°3 The Council re-
quested the U.N. Secretary-General to appoint a panel of experts to
monitor implementation of the ban.2°4 In addition, the resolution
calls upon states, international organizations, the diamond industry,

197 !d.
198 Inter-American Convention for the Prevention, Punishment and Eradication of
Violence against Women, June 9, 1994, 33 I.L.M. 1334 (1994) (entry into force Mar. 3,
1995).
199 United Nations Convention Against Transnational Organized Crime; Protocol to

Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;
Protocol Against the Smuggling of Migrants by Land, Sea and Air, Nov. 15, 2000, U.N. Doc.
A/55/383 (2000), reprinted in 40 I.L.M. 335 (2001).
200 !d. arts. 14(2), 25.
201 !d., pmbl., art. 2(b)6.
202 Seeid. art. 3(a).
203 S.C. Res. 1306, U.N. SCOR, 55th Sess., 4168th mtg., U.N. Doc. S/RES/1306 (2000).
204 !d.
314 Boston College International & Comparative Law Review [Vol. 25:273

and other relevant entities to assist the government of Sierra Leone to

develop a well-structured and well-regulated diamond industry. 2°5 The
World Diamond Congress, meeting in 2000 in Antwerp, proposed the
creation of an international diamond council made up of producers,
manufacturers, traders, governments, and international organizations
to oversee a new system to verify the provenance of rough diamonds.
If the behavior of non-state actors violates international norms
directly applicable to their conduct, they may be held responsible to
their victims. Efforts to hold corporations accountable for conduct
occurring in overseas operations have recently become prevalent in
U.S. courts. Using the Alien Tort Claims Act, plaintiffs have sought to
hold multinational companies liable for customary human rights vio-
lations and environmental harm in Burma, Nigeria, Ecuador, and In-
dia. In England as well, the House of Lords has upheld an action
brought against an English-based multinational company by South
African mineworkers suffering from asbestos related diseases. The use
of international human rights law in presenting claims directly against
industry is a relatively recent phenomenon and reflects the growing
attention being paid to non-state actors in international law and the
expectations that their behavior will be tested by norms previously
directed at states and state agents. The draft Hague Convention on
Jurisdiction and Foreign Judgments in Civil and Commercial Matters
refers to human rights in Article 18, in reference to war crimes and
grave violations of fundamental rights.
Further action is being taken by human rights bodies. In 1998,
the U.N. Sub-commission for the Prevention of Discrimination and
Protection of Minorities voted to establish a Working Group to exam-
ine over three years the effects of the working methods and activities
of transnational corporations on human rights.2°6 The mandate of the
Working Group is extensive and includes identification and examina-
tion of the effects of the activities of transnational corporations on the
enjoyment of civil, cultural, economic, political, and social rights, the
right to development, the right to a healthy environment, and the
right to peace.2°7 It is to gather and examine information and reports,
and prepare an annual list of transnational corporations to provide
examples of the positive and negative impacts on human rights of
their activities in the countries in which they operate.2°8 In addition,

2o5 Jd.
206 Sub-Commission Resolution 1999/8, supra note 49.
201 Jd.
2os Jd.
2002] Human Rights in a Globalized World 315

the Working Group is to assess how existing human rights standards

apply to transnational corporations, including private initiatives and
codes of conduct, and collect for study international, regional, and
bilateral investment agreements.209
The Working Group has prepared a draft code of principles relat-
ing to the human rights conduct of companies, based upon relevant
language from the codes of conduct by the U.N., the Organization for
Economic Co-Operation and Development (OECD), the ILO, corpo-
rations, unions, and non-governmental organizations.21o The princi-
ples address a wide range of human rights issues, including non-
discrimination, and freedom from harassment and abuse, slavery,
forced labor and child labor, healthy and safe working environments,
fair and equal remuneration, hours of work, freedom of association,
and the right to collective bargaining, as well as war crimes and other
international crimes.211 The fundamental rationale for the draft prin-
ciples was to impose responsibility on companies commensurate with
their increased power. 212 During the meetings of the Working Group
leading up to the principles, many non-governmental organizations
argued in favor of drafting a legally binding instrument, on the basis
that another voluntary code of conduct would be insufficient.213
The ILO remains the key institution concerned with the rights of
workers throughout the world. To the extent that other organizations
have become involved, the ILO seeks to determine whether or not
their standards conform to those of the ILO and adopt a similar hu-
man rights approach. The ILO Tripartite Declaration of Principles
Concerning Multinational Enterprises and Social Policy addresses the
obligations of four groups: the enterprises themselves; workers'
groups; employers' organizations; and governments. Its aims are to
encourage the positive contributions of multinational companies to
economic and social progress and to minimize the negative conse-
quences that might accompany their activities. The Declaration pro-
vides that all four groups should respect the Universal Declaration of
Human Rights and the two U.N. Covenants on Human Rights. The

209 /d.
21oSee Commission on Human Rights, Report of the Working Group on the Effects of the
Working Methods and Activities of Transnational Cmporations on Human Rights, at 4, U.N. Doc.
E/CN.4/Sub.2/2000/WG.2/WP.l (2000).
211/d.
212/d.
2n Commission on Human Rights, The Realization of Economic, Social and Cultural Rights:
The Question of Transnational Cmporations: Second Report of the Working Group, , 52, U.N. Doc.
E/CN.4/Sub.2/2000/12 (2000).
316 Boston College International & Comparative Law Review [Vol. 25:273

ILO also surveys the positive and negative effects of multinational ac-
tivities based on information from workers, employers, and govern-
ments.
The OECD became a focus of controversy during its unsuccessful
efforts to draft a Multilateral Agreement on Investment (MAl), a pro-
cess that ended in December, 1998.214 Strikingly, both the investors
pressing the MAl and those opposed to it were part of the globalized
community and, according to one view, "compromise the concept of
national sovereignty and local control. "215 Many of the issues raised
concerned human rights, including some related to the negotiating
process itself and its lack of transparency.2 16 In addition, NGOs were
concerned about several substantive areas that seemed to seriously
limit the sovereignty of states in favor of foreign investors.
Before and after the MAl negotiations, the OECD addressed is-
sues of human rights. First, in 1995, it published guidelines on par-
ticipatory development and good governance217 in which the mem-
bers reiterated their adherence to international human rights
norms.218 In 1996, OECD studied trade and labor standards, looking
at core worker rights.2 19 Later, it adopted revised Guidelines for Mul-
tinational Enterprises on June 27, 2000,22° supported by follow-up
procedures in the twenty-nine member states and four non-member
states participating in the process.221 The Guidelines concern multina-
tional enterprises operating in or from the thirty-three countries and

21 4 For differing accounts about why the effort was unsuccessful, see Kobrin, supra note
31, at 97.
215 Id. at 99.
216 See Milloon Kothari & Tara Krause, Human Rights or Corporate Rights? The MAl Chal-
lenge, 5 TRIBUNE DES DROITS HUMAINS 16 (1998).
21 7 See generally Development Assistance Committee of the Organization for Economic
Co-Operation and Development, Final Report of the Ad Hoc Working Group on Participatory
Development and Good Governance, at 1, OECD Doc. OCDE/GP/93/191 (1997), available at
http:/ /[Link]/ dac [hereinafter OECD, Working Group].
21 8 Id. t 66.
219 See generally Organization for Economic Co-{)peration and Development, TRADE,
EMPLOYMENT AND LABOUR STANDARDS: A STUDY OF CORE WoRKERS' RIGHTS AND INTER-
NATIONAL TRADE (1996).
22° OECD, Working Group, supra note 217, n 12-13.
22 1 The revision process demonstrated the impact of the Internet on prospects for par-
ticipation in international organizations. A draft text of the guidelines were posted on the
web with an invitation for the public to comment. Mter comments were received from
businesses, labor unions, environmental groups, academic institutions, individuals, and
non-member states, the draft was revised and the second version also posted on the Inter-
net. A second round of public comment followed before the Guidelines were finalized. See
James Salzman, Labor Rights, Globalization and Institutions: The Role and Influence of the Or-
ganization for Economic Cooperation and Development, 21 MICH.J. INT'L L. 769, 847 (2000).
2002] Human Rights in a Globalized World 317

apply to all operations worldwide. The revision added a human rights

obligation, stating that, "enterprises should ... [r]espect the human
rights of those affected by their activities consistent with the host gov-
ernment's obligations and commitments." It is significant that the
Guidelines do not refer to policies or practices, but rather to the legal
obligations of the host state. Every state has such obligations under
the U.N. Charter, customary international law, and such human rights
treaties as the state has ratified. The Guidelines impose a duty upon
businesses to inform themselves of the relevant obligations and con-
form their conduct to them. The follow-up foresees a series of proce-
dures involving consultations, good offices, conciliation, and media-
tion.
The U.N. Declaration Against Corruption and Bribery in Inter-
national Commercial Transactions encourages social responsibility
and ethical behavior, calling on partners to international transactions
to observe the laws of the host countries, and take into account the
impact of their activities on economic and social development and
protection of the environment and human rights.
Yet another response to the intersecting issues of globalization
and human rights has been to utilize market mechanisms and other
forms of private regulation to impact corporate behavior. Pressure
from international and national groups, as well as perceived long-
term interests, have led many companies to take up the issue of hu-
man rights. A survey by the Asbridge Centre for Business and Society
found that human rights issues caused more than one in three of the
500 largest companies to abandon a proposed investment project and
nearly one in five to divest its operations in a country. Nearly half have
codes of conduct that refer to human rights. The record is not clear,
however, on implementation. The U.N. Development Program Hu-
man Development Report 2000 calls for better implementation of corpo-
rate codes of conduct, stating that, "many fail to meet human rights
standards, or lack implementation measures and independent
audits. "222 It suggests that the use of human rights indicators be ex-
tended to include the role of corporations.
Codes of conduct for human rights often result from pressure on
companies to divest from countries with widespread and systematic
human rights violations.223 Consumer boycotts and labeling initiatives

UNDP, supra note 16, at 80.

222
Examples are the Sullivan Principles concerning South Mrica during apartheid and
223
the McBride Principles for Northern Ireland. See Lance Compa & Tashia Hinchliffe-
Darricarrere, Enforcing International Labar Rights Through Corporate Codes of Conduct, 33 Co-
318 Boston College International & Comparative Law Review [Vol. 25:273

such as "Rugmark"224 provide a means for persons concerned with

labor conditions and human rights to use their purchasing power to
influence corporate policy. Effective mobilization of international
consumer pressure can substitute for regulation.225 A writer in the
Economist has observed that, "a multinational's failure to look like a
good global citizen is increasingly expensive in a world where con-
sumers and pressure groups can be quickly mobilised behind a
cause."226 Such marketplace regulation has been criticized as lacking
in the accountability and transparency that normally accompany the
formation of laws. 227
The final approach concerned with enhancing human rights in a
globalized world is one that has broad implications for global govern-
ance generally. It seeks to enhance non-state participation in interna-
tional organizations and other fora concerned with international
regulation. While international organizations other than the ILO
have limited participation for non-governmental entities, efforts are
being made to develop more collaborative efforts between state and
non-state actors within the framework of international organizations.
The U.N. Millennium Declaration228 resolves to give greater op-
portunities to the private sector, NGOs, and civil society in general "to
contribute to the realization of the Organization's goals and pro-
grams."229 The U.N. Global Compact Initiative aims to develop policy
networks of international institutions, civil society, private sector or-
ganizations, and national governments to further human rights.2 30
The Initiative has taken up such issues as trade in diamonds in zones
of conflict, corporate social responsibility generally, the inclusion of
corporate behavior in the studies conducted by U.N. special rappor-

LUM. J. TRANSNAT' L L. 663, 671 ( 1995) ; see alsoJ. Perez-Lopez, Promoting International Respect
for Worker Rights Through Business Codes of Conduct, 17 FoRDHAM INT'L LJ. 1, 47 (1993).
224 "Rugmark" is a program to label carpets that have been made free from child labor.
SeeJ. Hilowitz, Social Labelling to Combat Child Labor: Some Considerations, 136 INT'L LAB. REv.
215, 224 (1997).
225 Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregu-
lated" Marketplace, 18 CARDOZO L. REv. 957,959 (1996).
226 See Multinationals and Their Morals, EcoNOMIST, Dec. 2, 1995, at 18.
227 Spiro, supra note 225, at 962-63 (criticizing NGOs for lack of accountability and
transparency).
228 United Nations Millennium Declaration, G.A. Res. 55/2, U.N. GAOR, 55th Sess., U.N.
Doc. A/Res/55/2 (2000) (issuing on behalf of the heads of state and government attend-
ing the U.N. Millennium General Assembly).
229 Id. 'I 30.
230 See Office of the High Commissioner for Human Rights, Business and Human Rights:
An Update (June 26, 2000), at http:/ /[Link]/[Link].
2002] Human Rights in a Globalized World 319

teurs on various human rights issues, and the impact of national liti-
gation on corporate liability for human rights abuses in countries
where the companies have operations.231 It is also concerned with the
work of international financial institutions like the World Bank and
regional organizations, such as the OECD.232
U.N. special rapporteurs have held discussions with private actors
in exercising their mandates. The special rapporteurs on Sudan and
on Mghanistan held dialogues with oil companies conducting activi-
ties in these countries; the special rapporteur on toxic waste met with
a pharmaceutical company.233 The special rapporteur on the sale of
children has worked with the International Chamber of Commerce
requesting information about company initiatives benefitting children
that could be proposed for action in various parts of the world.
Multinational companies also have been important in conflict
resolution, especially in mobilizing information and communications
technology. This was the case with the U.N. High Commissioner for
Refugees in, for example, Kosovo.2 34 Successful partnership will re-
quire companies to shun corrupt leaders and work to build viable
states that respect human rights.2 35 The joint U.N.-World Bank effort
in East Timor demonstrates a broad engagement in rebuilding, in-
cluding the development of judicial institutions and processes.236
Given the insecurity in many conflict and post-conflict areas, the co-
operation of the U.N. and the World Bank with private enterprise will
be necessary to ensure that the risks are properly shared, perhaps
through more favorable terms for political-risk insurance.2 37 Humani-
tarian and human rights NGOs also must be part of the coalition, with
the aim of overcoming the mutual distrust with which the business
sector and NGOs view each other. To fully work, such a coalition may

231 !d.
232 !d.
233 The mandate of the special rapporteur on toxic waste includes complaints brought
by and against states and non-state actors for the transboundary movement of toxic wastes
and she is to identifY specific companies and states involved in such traffic.
234 See jANE NELSON, THE BUSINESS OF PEACE: THE PRIVATE SECTOR AS A PARTNER IN
CONFLICT PREVENTION AND RESOLUTION 20 (2000), available at http:/ /[Link]-
[Link]/ corporate/[Link] (last visited Dec. 22, 2001).
235 See jonathan Berman, Boardrooms and Bombs: Strategies of Multinational Cmporations in
Conflict Areas, 22 HARV. INT'L REv. 28, 28 (2000), available at http:/ /[Link]
(last visited Mar. 11, 2002).
236 See generally Hansjorg Stmhmeyer, Collapse and Reconstruction of a judicial System: The
United Nations Missions in Kosovo and East Timor, 95 AM.]. INT'L L. 46 (200 1).
237 !d.
320 Boston College International & Comparative Law Review [Vol. 25:273

require restructuring international institutions to allow more effective

participation by non-state actors.
Several multinational agreements have been concluded between
international industry associations and workers' organizations.238
These include the collective agreement between the International
Transport Workers Federation and the International Maritime Em-
ployers' Committee, an agreement that covers wages, minimum stan-
dards, and other terms and conditions of work, including maternity
protection. InJanuary, 2001 the two partners agreed upon the future
development of labor standards in the international shipping industry
to permit such standards to become the third pillar of the shipping
industry, alongside maritime environmental and safety standards.239
The Spanish-based telecommunications company Telefonica and the
Union Network International (UNI) similarly signed an agreement
that covers some 120,000 workers represented by eighteen labor un-
ions affiliated to UNI. Both sides agreed to respect ILO core labor
standards covering freedom of association and the right to collective
bargaining, non-discrimination, and freedom from forced labor and
child labor. In all, the agreement referred to some fifteen ILO con-
ventions and recommendations.
The question of whether or not non-economic, e.g., human
rights values, are or should be incorporated in the trade regime re-
mains debated. Richard Shell has proposed a "stakeholder model" of
international government in which "private commercial parties, indi-
gent citizens in developing countries with weak governments, envi-
ronmentalists, labor interests, ... consumer groups," and others af-
fected by trade would have a role in economic policy-making and
dispute settlement in order to integrate non-economic values with
economic ones.240 Human rights interest groups and other NGOs hav-
ing consultative status241 have been prominent in various U.N. human

238 In addition to the two agreements mentioned here, other international agreements
signed include the code of labor practice signed between the International Federation of
Association Football (FIFA) and the International Confederation of Free Trade Unions
(ICFTU), the International Federation of Commercial, Clerical, Professional and Techni-
cal Employees (FIET) and the International Textile, Garment and Leather Workers' Fed-
eration (ITGLWF). ILO, Report of the Director General, supra note 25, at 43-44.
239 /d. at 42.
240 See G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of
the World Trade Organization, 44 Dmrn LJ. 829,908-09 (1995).
241 Article 71 of the U.N. Charter authorizes ECOSOC to consult with NGOs con-
cerned with matters within ECOSOC competence. Article 71 has been implemented
through procedures adopted in ECOSOC resolutions. See General Review of Arrangements for
Consultations with Non-Governmental Organizations: Ri!port of the Secretary-Genera~ open-ended
2002] Human Rights in a Globalized World 321

rights meetings and in other international fora, but have had far less
success in participating in the WT0.242 In general, more transparency
and participation are needed.

CONCLUSION

The key international legal developments that appear to be

emerging as a result of globalization, as discussed above, seem to be
the following. First, human rights institutions and activists are assert-
ing a primacy of human rights law over other fields of international
law. Whether or to what extent this assertion will be accepted remains
to be seen. Second, the international legal personality of inter-
governmental organizations is seen to carry with it the obligation to
conform to general international law norms, above and beyond the
requirements of the constituting charters or constitutions of the or-
ganizations. Third, the imposition of responsibility for human rights
violations on non-state actors appears to be increasing. This all leads
to asking: does the state need strengthening?
Globalization has created centers of power that are alongside,
even in competition with the power of states. Accountability for hu-
man rights violations and prevention of future ones must today and in
the future take into account these non-state actors: the media, corpo-
rations, and international organizations such as the WTO and the
World Bank. States and their agents are no longer the only or some-
times even the key actors responsible for ensuring that human rights
and freedoms are guaranteed. As recent international developments
have shown, there are multiple avenues to respond to this problem.
The first is to strengthen the state and to insist on its responsibility for
ensuring that non-state actors do not commit human rights violations.
There is no doubt a need to strengthen weak states that lack the
institutions necessary to protect and ensure human rights. Institutions
such as independent judiciaries must be formed and executive power,
including the police and military, must be brought under the rule of
law. At the same time it must be recognized that there are two prob-
lems with solely relying on strengthened individual state action. First,
it raises the specter of powerful state agents again capable of and per-
haps willing to use and abuse state power to prolong their time in

Working Group on the Review of Arrangements for ConsulUttion with Nongovernmental Organiza-
tions, U.N. GAOR, 1st Sess., U.N. Doc. E/AC.70/1994/5 (1994).
242 See Kenneth W. Abbott, "Economic" Issues and Political Participation: The Evolving
Boundaries oflnternationalFederalism, 18 CARDozo L. REv. 971, 1005-06 (1996).
322 Boston CoUege International & Comparative Law Review [Vol. 25:273

office. The wisdom of political philosophers who called for a balance

of and restraints on power must not be forgotten because "the good
old rule, [s]ufficeth them, the simple plan, [t]hat they should take,
who have the power, [a]nd they should keep who can."243 The second
problem is that even strong states are unable to deal unilaterally with
all the challenges posed by globalization, especially when dealing with
international crime, including terrorism. The amount of individual
state strengthening that would be necessary to combat these problems
would probably require an unacceptable retreat from basic human
rights.
The alternative is to strengthen the weak states to enable them to
protect human rights, while at the same time imposing increased in-
ternational obligations on non-state actors through multilateral
mechanisms. Thus, even though states will retain the primary respon-
sibility for ensuring the promotion and protection of human rights,
non-state actors will be held accountable when they undermine state
efforts to do so or are complicit in violations undertaken by the state.
Non-state actors have always had a pivotal role in developing the law
of human rights; they now may take a further role as a result of global-
ization.

243 Wordsworth, IWb Roy's Grave, stanza 9, available at http:/ /[Link]/145/

[Link] (last visited Mar. 10, 2002).