While the idea of human rights may have a discernible homogeneity, perhaps derived from some kind of natural law theory or social theory, it is nonetheless clear that the implementation of these rights by states lacks a corresponding identity.
Davidson’s (1993, p.89) analysis of the concept of human rights highlights the chief difficulty that has faced the past generation of human rights regime, namely that it is an international problem that cannot be efficiently policed and guarded against by state law alone.
The ubiquitous problem of definition only makes it easier for offending companies or nations to claim that their crimes do not officially come within the official realm of human rights. The current statecentric definition of human rights therefore facilitates evasive tactics and succeeds only in diminishing the significance of the issue on the eyes of statesmen and policy makers.
To best tackle the dual problem within the title of this essay we first need to attempt to define the modern human rights regime, place it in its contemporary political context and evaluate its primary obstacles.
Then we need to analyse the role of multinational corporations to evaluate in what ways these pose a problem to the human rights regime, posing the question of how these ubiquitous forces can be made accountable for their overseas empires. And finally we will examine the question of whether or not a new generation of human rights activity and organisation is required.
The United Nations Charter (1948) is the vehicle for the international ideal of human rights, law and democracy. Article 1 of the Universal Declaration of Human Rights (2000, p.82) sets out a modern definition and has served as the blueprint by which all subsequent interpretations have been measured. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The phraseology is famous for its humanitariancentric ideology but herein lays the problem of the human rights issue within the broader international agenda. In political philosophy, the spirit of the Universal Declaration and subsequent treaties such as the Vienna Convention (1993) are inherently left of centre and imply a cooperative understanding and information exchange between modern states, east and west, north and south that is modelled on broadly socialist ideals.
Yet, inevitably, the feeling of responsibility towards all oppressed people of the world, that was a legacy of the horrors of World War II, quickly dissipated. As history has taught us time and again, domestic economic and political concerns soon superseded human rights at the top of the international relations agenda and it is within such an environment that the modern human rights regime must currently work.
The postwar international political situation has been exacerbated in recent times by the advent of globalisation as a political and economic reality. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) details the enormous change that globalisation has meant to the lives of millions of people across the globe.
Since the Limburg Principles were adopted in 1986, the economic and social conditions have declined at alarming rates for over 1.6 billion people, while they have advanced also at a dramatic pace for more than a quarter of the world’s population. The gap between rich and poor has doubled in the last three decades, with the poorest fifth of the world’s population receiving 1.4% of the global income and the richest 85%. The impact of these disparities on the lives of people – especially the poor – is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a significant portion of humanity.
It naturally follows that many human rights lobbyists are also opponents of globalisation, in which they see the conduit through which further human rights abuses will be facilitated as the gulf between the rich and poor of the world continues to widen. And because the concept of globalisation relies heavily on the dynamics of transnational corporations it does not take a great leap in deduction to imagine that human rights abuses will slip further away from the top of the western political agenda if the west continues on its current economic and political course of action.
The issue of the increased social and political role of transnational corporations (TNC’s), as Jochnick (1999, pp.5679) testifies, is a major problem for the enforcement of the human rights agenda.
Most developing countries face TNCs with revenues many times larger than their domestic economies. TNCs account for almost half of the top one hundred economies in the world, and a mere two hundred of them are estimated to control a quarter of the world’s productive assets. Grouped together in trade associations with the active support of their home countries, TNCs exercise an inordinate influence over local law and policies. Their impact on human rights ranges from a direct role in violations, such as abuses of employees or the environment, to indirect support of governments guilty of widespread oppression.
The argument to limit the scope of TNCs has been prevalent for the past thirty years. In 1974 the Charter of Economic Rights and Duties of States declared in Article 2 (b) that, each state has the right to regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply with its law, rules and regulations and conform with its economic and social policies. While the political reality of human rights abuses has altered little due to the above statement and indeed the increased focus on human rights in general, its existence as an ideal and a manifestation of consensus amongst the generation of drafters makes it an important and relevant document for the next generation of human rights activists. In 2003, for instance, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regards to Human Rights defined human rights and transnational companies in a bid to clarify the ambiguities that have existed since 1945. It also specified areas of negligence such as the treatment of children and the provision for providing adequate food and drink for the workforce. This document underscores the continuing strive to hold multinationals to account but it likewise poses as many questions as it answers.
Although the accountability of transnational corporations is a commendable course of action it is fraught with problems of perspective. The main theory posited against the legal extension of human rights violations to include TNCs is that multinational corporations are private entities and should not have the same restrictions such as those imposed upon states. TNCs should, from this viewpoint, be responsible only for the proper conduct of their business and should not have to interfere in broader social issues, which ought to come within the jurisdiction of the local national government or the UN. At this point we need to examine the intricacies of the traditional multinational corporation so as to determine the necessity for an increased net of surveillance.
Nike is probably the incarnation of a major multinational corporation within the bounds of this discussion. Since the Reagan administration there has been consistent questioning of the role of Nike in Third World countries with particular emphasis on the growing divide between the company’s turnover and the lifestyle of the workers in countries such as Indonesia, where many of the firm’s manufacturing plants are in operation. The specific problem of corporate responsibility for multinationals such as Nike is explained in detail by Daniel Litvin (2003, p.228).
The American multinational does not actually own the facilities producing its sports gear around the world; rather, it contracts out its manufacturing to other firms. And it has tried to respond to western criticism over its alleged ‘sweatshop’ production by setting up numerous systems for monitoring labour practices in these factories, largely involving visit and inspections by outsiders. But just as Cecil Rhodes’ British South Africa Company seriously misunderstood the cultural dynamics of the indigenous societies of South Africa, and just as Aramco, for all its efforts, found it difficult to predict changes within Saudi society, so Nike has been struggling to track the conditions in its factories.
Within the case study of Nike is a problem that affects the entire human rights corporate agenda. Although multinational companies are registered in western countries, much of the grass roots level abuses occur outside of the scope of the executive branch. Clearly human rights lobbyists will state that Nike and other TNCs in its position ought to ensure a more durable form of internal communication but, legally speaking, the fact that the manufacturing is subcontracted shifts corporate responsibility away from the multinational and only creates more legal and political issues for the human rights regime.
There clearly is a need for a new generation of human rights regime, one that is not so inherently statecentric in its analysis of the issue. Because of the economic and political climate of dominant western powers, which we have already outlined, much of the work of human rights bodies must take place within the confines of nongovernmental organisations (NGOs). Unlike national governments, who have to deal with a perpetually shifting social agenda, NGOs can dedicate their time and resources to the achievement of individual, secular goals.
The work done by human rights NGOs is various and diverse. Much of their remit involves carrying out some form of information gathering and fact finding activities. Furthermore, nonstate parties have learnt, from the conflicts in Africa and Central and Southern America, that networking between organisations is the best way to achieve homogeneity against statesponsored and corporate oppression. As a result, NGOs have helped bring to the attention of the world media human rights abuses that might otherwise have continued undetected. But this is not an end in itself; it is merely a means to an as yet undecipherable end, as highlighted by Hegarty and Leonard (1999, p.283).
There is some evidence that overt monitoring by NGOs deters states from committing abuses. But, there are many places in the world where overt monitoring is not possible, and there are many governments that seem able to dismiss easily United Nations criticism of their human rights record.
The influence of nongovernmental organisations therefore remains cultural rather than institutional or organisational and there are definite limits to the reach that they have in international relations.
Human rights, as a creed, are inexorably tied with the political and economic concerns of the west and its programme of globalisation. It thus follows naturally that many of the arguments for and against the role of multinational corporations within the ongoing debate are politically motivated. For example, many of the voices of dissent against TNCs contain the same voices of opposition against globalisation; ditto for supporters of globalisation who seek to cover up the core business excesses of multinationals. We must therefore be aware of hidden agendas and political rhetoric and recognise this as a major obstacle to the advancement of human rights at the beginning of the twentyfirst century.
The statecentricity of the contemporary human rights regime has resulted in the suffocation of a social force that would otherwise surely have made more strident inroads into curtailing the power of multinational companies. However, the increased communication and network strategies of nonstate actors has resulted in a more united human rights regime with greater authority in the state political sphere. The future challenge is for the next generation of human rights regime to resist the inevitable challenge of the world’s economic elite, who will naturally fight against all attempts to narrow perceptions of human rights, and to bring multinational corporations to account for their overseas capitalist practices.
S. Davidson, Human Rights: First Edition (Open University Press; Buckingham, 1993)
D. Forsyth, Human Rights in International Relations (Cambridge University Press; Cambridge, 2000)
C. Gearty, Principles of Human Rights Adjudication (Oxford University Press; Oxford, 2004)
A. Hegarty & S. Leonard (Edtd.), Human Rights: an Agenda for the TwentyFirst Century (Cavendish; London, 1999)
M.T. Kamminga & F. Coomans (Edtd.), Extraterritorial Application of Human Rights Treaties (Intersentia; Antwerp & Oxford, 2004)
D. Litvin, Empires of Profit: Commerce, Conquest and Corporate Responsibility (Texere; New York & London, 2003)
J.W. Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (University of California; Berkeley, 1987)
C. Ovey & R.C.A. White, Jacobs and White: European Convention on Human Rights: Third Edition (Oxford University Press; Oxford, 2002)
P. Plowden & K. Kerrigan, Advocacy and Human Rights: Using the Convention in Courts and Tribunals (Cavendish; London, 2002)
G. Teubner (Edtd.), Global Law without a State (Dartmouth; Aldershot, 1997)
Human Rights in International Law, Collected Texts: Second Edition (Council of Europe Publishing; Strasbourg, 2000)
International Treaties and Documents
Charter of Economic Rights and Duties of States; GA Res. 3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht; January 2226, 1997)
Universal Declaration of Human Rights (1948), in, Human Rights in International Law, Collected Texts: Second Edition (Council of Europe Publishing; Strasbourg, 2000)
Selected Articles and Journals
C. Jochnick, Confronting the Impunity of NonState Actors: New Fields for the Promotion of Human Rights, in, Human Rights Quarterly, Volume 21, Number 1 (February 1999)
L. Wiseberg, Protecting Human Rights Activists and NGOs, in, Human Rights Quarterly, Volume 13, Number 525 (November 1999)