Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights
- Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights
I. Introduction
The end of the Cold War represented a seminal moment for the human rights movement. In less than three decades of active campaigning, non-governmental advocates had made human rights a common and powerful language and could claim no small part in the widespread attention to civil liberties and democratic reforms in countries throughout Latin America, Africa, Asia, and Eastern Europe. But if the expansion of freedom and democracy represented a victory for human rights, it also underscores the dangers of equating civil and political rights with human dignity. The enduring and pervasive poverty suffered by well over a billion people across the globe stands as an inescapable rebuke to those ready to celebrate the “age of rights.” 1
The human rights movement has much to offer the struggle against poverty, but it must first move beyond its unnecessarily narrow vision of human rights. The domination of Western nongovernmental organizations (NGOs) and governments has produced a model of human rights advocacy that is limited to civil liberties and state action. 2 While the narrow focus on [End Page 56] civil liberties has been widely criticized and an increasing number of NGOs are now addressing economic, social, and cultural rights (ESCR), the singular focus on state action endures. This focus fails to address the roots of many violations—particularly violations of ESCR—that increasingly lie beyond national borders.
This article suggests a fuller interpretation of human rights obligations, making them more relevant and truer to international realities. Moving human rights beyond its state-centric paradigm will potentially serve two purposes. First, it will challenge the reigning neo-liberal extremism that infects much of the public discourse about development and poverty, providing a rhetoric and vision to suggest that entrenched poverty is neither inevitable nor acceptable. Second, it will provide a legal framework with which to begin holding the most influential non-state actors—corporations, financial institutions, and third-party states 3 —more accountable for their role in creating and sustaining poverty. This article will outline the role of these sectors in ESCR violations and the extent to which they are governed by human rights instruments. The focus on impact and accountability is meant to demonstrate the importance of, and the legal basis for, broadening human rights advocacy to address additional actors.
II. Background to the Problem of Global Poverty
A. The Center for Economic and Social Rights in Ecuador
Some years ago, the Center for Economic and Social Rights (CESR) undertook an investigation of the impact of oil development on humans in the Ecuadorian Amazon. 4 The investigation initially focused on the government’s human rights obligations despite the fact that a private company, Texaco, was responsible for the brunt of the damage. 5
For decades, the affected Amazon communities had suffered Texaco’s abuses largely in silence, having been repeatedly told, both explicitly and implicitly, that they had no rights against the oil company and that the damage was a natural and inevitable price to pay for the country’s development. 6 Human rights offered these communities a rare alternative to [End Page 57] the dominant discourse, guaranteeing them a right to a healthy environment that was clearly being violated by Texaco’s regular dumping of toxic wastes into their water supplies. 7
When CESR met with these communities, there was little sympathy for the legal nuance that private companies are technically immune to human rights claims, that they do not sign covenants guaranteeing human rights, and that only the state is responsible for ensuring these rights. 8 In the communities’ eyes, Texaco was the villain. 9 Texaco had operated for years in the Amazon as practically a state unto itself, with annual global earnings four times the size of Ecuador’s GNP and the active support of the US government. 10 Even if the Ecuadorian government had been disposed to control the company, few believed it could. 11
Under these circumstances, CESR’s intended approach risked the uncomfortable prospect of doing more harm than good. Insisting solely on governmental obligations would obscure the true nature of the violation, reinforce...
