Where Human Rights Law Meets Globalization
Dr. Margot Salomon, director of the Laboratory for Advanced Research on the Global Economy at the London School of Economics' Centre for the Study of Human Rights, has spent much of her career thinking about the connections between economic development and human rights. She was a member of the six-person committee that drafted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights, a document that sets out 44 principles to help states better promote and protect the human rights of those living in other countries. Salomon used her expertise on the connections between international human rights law and global poverty and inequality to help highlight the obligations countries have regarding the impact of their conduct on human rights beyond their borders. OpenCanada.org reporter Alia Dharssi spoke with Salomon about how globalization has shaped the concept of human rights, how international organizations and companies can be held accountable for human rights abuses, and how our current system actually undermines development.
Can you tell me about the formation of the Maastricht Principles and why they came about?
In a world of interdependence and economic globalization, a world where harms are transnational, we know that there are obligations that one country has to the people of another country, but we need clarity on what exactly those are. The motivation for the principles came from a group of academics and NGOs that recognized the need to consolidate legal developments related to globalization and human rights so that states would know what was required of them, but also so that the international legal community – from scholars to judges to human rights committee members in the UN – would have a better sense of how the law has developed in this area.
What duties do states have with respect to the socioeconomic rights of people living in other countries?
People are already familiar with extraterritorial obligations in the area of civil and political rights. These are the issues that come up with regard to military adventures in other countries: the human rights obligations soldiers have when they’re undertaking a military activity or occupation.
But in a global world, decisions are often made far away from where the harm takes place. Socioeconomic rights in the area of the right to food, for example, have to do with the impact of decisions made by international organizations, companies, or governments that harm the ability of people to feed themselves. We have to try and link the cause of these harms to the victims.
It may not be just the government of the victims’ country that is responsible for the harm caused. That government still has obligations to its people, but it is not an exclusive obligation. Other countries will also have, in certain circumstances, obligations.
The Maastricht Principles sought to figure out on the basis of jurisprudence what those obligations are and in what circumstances. In some cases, they’re negative obligations – obligations to do no harm, to refrain from taking steps or adopting policies that would have a high likelihood of harming people elsewhere. That would require impact assessments and due diligence. It also has to do with obligations to regulate non-state actors, such as companies where a state is in a position to do so. There are also positive obligations to fulfil the socioeconomic rights of people elsewhere. So, if people in one state are facing hunger, which has nothing to do with harm caused by another state, there are obligations of international cooperation to see these rights realized.
You were the guest editor for a special issue of the Global Policy journal on human rights and the global economy. The issue discussed the connection between global poverty and international law, including human rights law. Could you tell me more about that?
When people, even many international lawyers, think about human rights law, they think about freedom of expression, prohibition of torture, right to privacy and surveillance for example? Of course these are extremely important human rights issues, but what the Special Issue focuses on is the right to food or the right to an adequate standard of living or the right to development and the ways in which they are undermined under conditions of globalization. The Special Issue addresses in particular what legal developments are, or should be, underway to address this.
There is a proposal – and one of the articles addresses this – for a world court of human rights which would be able to consider alleged violations of human rights not only by states, but also by non-state actors such as transnational corporations and international organizations. So that would include the World Bank or the IMF or the European Central Bank – the latter two are involved in the recent imposition of austerity measures that have had serious impacts on the exercise of human rights in Europe.
We still function within a state-centric system in an era of globalization where there are such powerful and rich and influential actors that aren’t states. There’s no meaningful system to hold them to account for human rights violations. The idea of exposing a range of actors to the jurisdiction of a court on human rights is extremely novel and significant. It will take a while, but some such system of accountability will have to be the future. It will eventually come to fruition, in some form.
Don’t you think states would be reluctant to give that sort of power to an international court?
Well, there are arguments to suggest that states would benefit. First of all, companies might actually appreciate a system with a level playing field and a certain degree of transparency as to what is required of them. There are big reputational costs that come from human rights abuses. Even if their actions are not motivated by ethics, many companies are keen to do the right thing. And knowing what the right thing is entails, in part, having clear rules.
States at the moment are potentially liable for the harms undertaken by companies under international human rights law. So states might say, ‘Well, you know, it’s not really our fault. Why not have a system that actually recognizes the direct legal responsibility of companies?’ It’s not giving something up. It’s actually relieving states of duties that they’re responsible for, even though, in practice, they may be once-removed.
You’ve also done some work on human rights issues related to the U.S. economic crisis. What does that illustrate about the nature of human rights in today’s world?
That’s a good question. I think it has sort of a parallel answer to the one I just gave about our gaps in accountability. What it shows us is that the human rights architecture focuses on certain actors and not others. There’s a lot of focus on transnational corporations, but not the financial aspects of the economic system that has one of its key centres in the U.S. There’s a failure of regulation, a failure to focus on the range of actors that impact human rights.
It’s very difficult because the harms are diffuse, causation perhaps hard to establish, and moreover the workings of international finance can be complex. But I think the financial and economic crisis unequivocally highlights that what happens in one place resonates around the world in very significant ways. And our international infrastructure for human rights does not adequately anticipate the multitude of actors and ways in which they harm people around the world. We have a global world that lacks the type of global regulation in the area of human rights that’s required to ensure that we don’t see the widespread harms that have taken place.
I understand the clear connection between the actions of soldiers in a foreign country and human rights. If there are human rights violations in such a scenario, you can document them and respond to them with legislation. But what kind of role can law play in dealing with something like global supply chain issues, where the impact is so far from the source?
What you’re pointing to is the need to revisit the way international law addresses harms where the causal chain may be difficult to identify. On the one hand, we’re concerned about what companies do, but, on the other hand, we have an international investment regime that gives very strong rights to foreign investors that undermine or limit the ability of the receiving state to regulate in the area of labour or environmental protection. So, in a way, human rights are traded off against other interests.
Part of it is about reconciling different legal regimes that would help us to secure human rights, but it’s not in the interest of everybody to secure those human rights and even where there is will, different states have different levels of negotiating power in terms of the structure of the rules in place.
You’ve alluded to some of these power structures in your work on the Millennium Development Goals.
We have rules in place that undermine the objectives of the MDGs, rules with regards to the impact of international trade and intellectual property rights, and international investment for example. The MDGs are trying to address poverty and development issues and women’s issues and health issues, but they are sort of an annexe to an international legal and policy framework that undermines, in important ways, those very objectives.
The MDGs can only ever be sort of a “band-aid” on a much bigger problem because the world is geared towards privileging the private sector. Those interests are not always consistent with the kinds of objectives that the MDGs are trying to advance with regards to development. And the MDGs did not confront the structures that made the development problems, the structures that undermine the very development that the MDGs are trying to address.
It speaks to an institutional problem. It happens all the time when issues of international trade, international finance and so forth are raised at the UN in relation to human rights. Particular industrialized states will try to stop the debate from happening by saying that these are important issues but their consideration belongs somewhere else. They say that they are best discussed at the World Bank or at the International Monetary Fund or at the World Trade Organization. 'These are not UN issues'. But until the social, environmental and economic issues are meaningfully part of the same conversation – as others such as Joe Stiglitz has pointed out in his report to the General Assembly in the wake of the financial crisis - change towards the kind of issues that animate the MDGs will only ever be slow and partial..
This interview has been edited for length and clarity.