Human Rights and Global Governance: Power Politics Meets International Justice 9780812296648

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­ uman Rights and H Global Governance

PENNSYLVANIA STUDIES IN ­H UMAN RIGHTS Bert B. Lockwood, Series Editor A complete list of books in the series is available from the publisher.

­ uman Rights and H Global Governance Power Politics Meets International Justice

William H. Meyer

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL A DELPHI A

Copyright © 2020 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www​.­upenn​.­edu​/­pennpress Printed in the United States of Amer­i­ca on acid-­f ree paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-­in-­Publication Data Names: Meyer, William H., author. Title: Human rights and global governance : power politics meets international justice / William H. Meyer. Other titles: Pennsylvania studies in human rights. Description: 1st edition. | Philadelphia : University of Pennsylvania Press, [2020] | Series: Pennsylvania studies in human rights | Includes bibliographical references and index. Identifiers: LCCN 2019021368 | ISBN 9780812251760 (hardcover) Subjects: LCSH: Human rights—International cooperation—Case studies. | International law and human rights. | International organization. | International relations. | International cooperation. | Human rights. | World politics. Classification: LCC JZ1318 .M48 2020 | DDC 323—dc23 LC record available at https://lccn.loc.gov/2019021368

Contents

List of Abbreviations  vii

Introduction 1 Chapter 1. The Pinochet Pre­ce­dent as an Exemplar of Global Governance 12 Chapter 2. Indigenous Rights and Global Governance  32 Chapter 3. Corporate Social Responsibility and Global Governance  68 Chapter 4. Testing Theories of ­Labor Rights and Development  106 Chapter 5. Torture, Terror, and Unjust Wars  130 Chapter 6. H ­ uman Rights Treaties and the Pacific Interregnum  169 Chapter 7. Two Models and F ­ uture Prospects for Global Governance of ­Human Rights  192

Notes 219 References 223

vi Contents

Index 245 Acknowl­edgments 

249

Abbreviations

AI AIP APL ATCA AU CANZUS CAT CEDAW

Amnesty International Apparel Industry Partnership antipersonnel landmine Alien Tort Claims Act of 1789 (aka Alien Tort Statute) African Union Canada, Australia, New Zealand, and the United States Convention Against Torture Convention on the Elimination of All Forms of Discrimination Against W ­ omen CIA Central Intelligence Agency CJM Co­a li­tion for Justice in Maquiladoras CLS core l­ abor standards CME coordinated market economy COE Council of Eu­rope CRC Convention on the Rights of the Child CSR corporate social responsibility DEA Drug Enforcement Administration DJP Demo­cratic Justice Party (South ­Korea) DOD Department of Defense DRIP Declaration on the Rights of Indigenous ­Peoples ECHR Eu­ro­pean Court of H ­ uman Rights ECOSOC Economic and Social Council EU Eu­ro­pean Union FPIC ­free, prior, and informed consent G4 Group of Four (Brazil, Germany, India, and Japan) G8 Group of Eight (Canada, France, Germany, Italy, Japan, Rus­sia, United Kingdom, United States)

viii Abbreviations

GATT General Agreement on Tariffs and Trade GC Global Compact GDP gross domestic product GG global governance Gini Gini index of income in­equality HDI ­Human Development Index HLP High-­Level Panel IACHR Inter-­American Court of H ­ uman Rights ICBL International Campaign to Ban Landmines ICC International Criminal Court ICCPR International Covenant on Civil and Po­liti­cal Rights ICESCR International Covenant on Economic, Social, and Cultural Rights ICFTU International Confederation of F ­ ree Trade Unions ICTFY International Criminal Tribunal for the Former Yugo­slavia IFI international financial institution ILO International ­Labour Organ­ization IMF International Monetary Fund IO international organ­ization IR international relations IRA Irish Republican Army ISIS Islamic State in Iraq and Syria ITO International Trade Organ­ization JAF justice as fairness (John Rawls’s theory) JGB just getting by (John Nelson’s theory) KMT Kuomingtang Party (Taiwan) LME Liberal Market Economy MATRS Multilateral Agreement and Treaty Rec­ord Set MFA Multi-­Fiber Agreement MI military intelligence MP military police NAFTA North American ­Free Trade Agreement NATO North Atlantic Treaty Organ­ization NGO nongovernmental organ­ization NSA National Security Agency NSSUSA National Security Strategy of the United States of Amer­i­ca OAS Organ­ization of American States OECD Organ­ization for Economic Cooperation and Development

Abbreviations ix

P5 PTA R 2 RSA TNC TRC TVPA UAV UCTA UDHR UEC UfC UN UNICEF UNSC WMD WTO YATAMA

Permanent Five (permanent members of the UN Security Council) Prevention of Terrorism Act (UK) R squared (or “variance explained”) Republic of South Africa transnational corporation Truth and Reconciliation Commission Torture Victim Protection Act unmanned aerial vehicle U.S.-­Cambodia Textile Agreement Universal Declaration of ­Human Rights unlawful ­enemy combatant Uniting for Consensus Group United Nations United Nations ­Children’s Fund United Nations Security Council weapons of mass destruction World Trade Organ­ization Yapti Tasba Masraka Nanih Asla Takanka (indigenous po­liti­cal party, Nicaragua)

­ uman Rights and H Global Governance

Introduction

Question: What do the following cases have in common? Bringing former dictators to trial; indigenous lands in the Amer­i­cas that have been stolen by developers; mineral rights to newly opened territories in the Arctic; sweatshop working conditions, and buildings collapsing on workers in the Global South; U.S. policy that exchanges access to domestic markets in return for better l­abor rights in Southeast Asia; war crimes in Iraq and Af­ghan­i­stan; drone warfare and torture used against suspected terrorists; and the interactions linking war, peace, and making new treaties to protect h ­ uman rights. Answer: Each of ­these cases raises issues and demonstrates pro­cesses that can help us to understand the evolving nature of global governance over international ­human rights. International ­human rights has been an impor­tant topic for study, policy, and activism since the end of World War II. Global governance is, comparatively speaking, a relatively new topic for students of international relations. This text brings the two areas together by presenting six case studies at the intersection of power politics and international justice. Chapters 1 through 6 in this book ­will review: (1) the global campaign to end impunity for dictators; (2) indigenous rights; (3) the creation and expansion of efforts to ensure corporate social responsibility; (4) the interactions between ­labor rights and development in the Global South; (5) just war theory as it applies to torturing terrorists, war crimes in Af­ghan­i­stan and Iraq, and the drone wars; and (6) the global strategic environment that best facilitates the making of ­human rights treaties. Chapter 7 concludes this research by presenting the successes and failures of two models for global governance of h ­ uman rights. The conclusion also discusses reforming the UN Security Council in order to reduce war crimes. The final chapter ends with a description of what the f­ uture of global governance for ­human rights could look like.

2 Introduction

This text uses a mixture of historical, quantitative, normative, and policy analyses to address ­t hese topics. Chapters 4 and 6 employ statistical methods to derive the connections between l­abor rights and development, and the impact of war on treaty-­making. All seven chapters use historical, ethical, and policy-­based analyses as well. An eclectic methodology is required b ­ ecause both ­human rights and global governance cover such a wide range of issues. H ­ uman rights and global governance are also both highly contested concepts. Both h ­ uman rights and global governance mean dif­fer­ ent t­hings to dif­fer­ent p ­ eople and within dif­fer­ent contexts. Contestation over ­human rights can often be traced to the competing values of conflicting socie­ties and the resulting debate over cultural relativism. Much of the contestation over global governance finds its roots in conflicting empirical and theoretical claims (see below for a review of global governance theory). Both ­human rights and global governance also sit at a nexus between power politics and ethics. The term “global governance” came into vogue at the end of the twentieth ­century as a result of a massive sea change in global politics. In the 1990s, the Western powers declared victory in the Cold War. One immediate result seemed to be increased agency for the United Nations and other international organ­izations now in­de­pen­dent of Cold War restraints. Relevant examples included UN Secretary-­General Kofi Annan’s designs to reform humanitarian intervention, expand the Security Council (see Chapter  7), and establish new international laws to govern ­human rights obligations for corporations (see Chapter 3). Many began to refer to t­hese new initiatives led by the United Nations as forms of “global governance,” but not “global government.” Supporters argue that global governance can perform some of the same functions as a government without relying exclusively on the formal institutional structures of national governments. Unfortunately, this new post–­Cold War architecture for international relations did not lead to the prescriptive and normative outcomes that early champions of global governance had hoped for. Talk of the end of Cold War hostilities leading to a “peace dividend” that could be invested in green technologies or developmental assistance to the Global South turned out to be premature. Hopes for a brave new world of peace and increased standards of living throughout the globe fell victim to the power politics of anti-­terrorism a­ fter 11 September 2001. ­Human rights and global governance are two areas that are inextricably linked to both international justice and power politics. Power politics and

Introduction 3

­ uman rights are among the tectonic forces shaping the landscape of twenty-­ h first-­century international relations. Each of the case studies in this text stands as an example of the interconnected nature of justice and power. The remainder of this introduction w ­ ill describe the case studies that follow in terms of their power politics and international justice dimensions. I w ­ ill also include a brief overview of theories of global governance. The six case studies of this text can be usefully divided into three subsets: (1) global governance and the dispossessed; (2) global governance and international markets; and (3) global governance, war, and peace.

Global Governance and the Dispossessed The first two chapters in this study cover global governance to aid transnational populations that have been among the most marginalized ­peoples in the world. Chapter 1 pre­sents the Pinochet pre­ce­dent as an early archetype of global governance. The Pinochet pre­ce­dent created the first international model for bringing Cold War dictators to justice (beginning with General Augusto Pinochet in Chile), particularly for the crime of po­liti­cal disappearances. Right-­wing, anti-­communist dictators in Latin Amer­i­ca regularly made their po­liti­cal opponents “dis­appear” by means of torture and murder, then denied any role in ­t hese disappearances, and denied any knowledge of such crimes. Po­liti­cal disappearances carried over into the wars against terror ­after 9/11 in the form of “renditions.” Once again, ­people (e.g., suspected terrorists) ­were targeted, kidnapped, tortured, and murdered with governments once again denying any involvement or knowledge of their victims’ whereabouts. The power politics of the Cold War ensured that pro-­U.S. dictators enjoyed impunity from prosecution for such crimes during that era. American military aid and American diplomacy provided the means and po­liti­cal cover for right-­wing repression. The power politics of post-9/11 anti-­terror hysteria have shielded from prosecution ­those who tortured and murdered suspected terrorists (in most cases). However, international activists during both periods cried out for accountability and bringing to justice t­ hose responsible for po­liti­cal disappearances. Creation of the Pinochet pre­ce­dent was a watershed moment that reversed the trend of unchallenged impunity. The Pinochet pre­ ce­dent also created momentum ­toward supporting the victims of po­liti­cal disappearances and led to prosecution of the guilty. Chapter  1 tells the story of bringing General Pinochet in Chile to justice, reviews subsequent

4 Introduction

international efforts to end impunity for dictators, and draws connections to post-9/11 instances of po­liti­cal disappearances. Chapter 2 reviews key efforts to establish global governance in support of indigenous rights. Indigenous p ­ eoples are another (even larger) population of the dispossessed, disenfranchised, and abused. Power politics have determined the policies of the major states t­oward indigenous tribes, leading to widespread rights violations. Chapter 2’s discussion of the United Nations, the Organ­ization of American States, and the Inuit Circumpolar Council identifies some recent successes in the campaigns for greater justice for indigenous ­peoples. This discussion of indigenous rights also leads to further consideration of a debate among global governance theorists over the alleged devolution of sovereign governmental powers. I w ­ ill argue in Chapter 2 that, while indigenous ­peoples have made impor­tant inroads into state power and sovereignty in some areas, the conflict over in­de­pen­dence for indigenous groups reveals some of the limits to (or boundary conditions for) global governance.

Global Governance and International Markets Chapters  3 and 4 address ­human rights and transnational corporations (TNCs). Chapter 3 pre­sents a history of corporate social responsibility, which includes an effort to impose ­human rights obligations on TNCs. Chapter 3 also reviews cases before federal courts in the United States that have sought to hold TNCs accountable for their h ­ uman rights violations. To date, the economic and po­liti­cal power of advanced industrialized states has been employed to see that ­t here are almost no binding international ­legal obligations requiring TNCs to re­spect h ­ uman rights. Th ­ ere are also few l­ egal ave­nues by which victims can bring TNCs to justice when corporations violate their rights. Chapters 3 and 4 bring together developments at the World Trade Organ­ization (WTO) and case law u ­ nder the U.S. Alien Tort Claims Act, that (in combination) can point the way ­toward a new global governance regime for TNCs and h ­ uman rights in the f­ uture. Chapter 4’s primary topic is the relationship between l­ abor rights and development in the nations of the Global South. I discuss the campaign for a new social clause at the WTO to protect l­abor rights and the environment. Debate over a new social clause for the WTO broke down during the WTO’s Doha Round (2001–2015) of international trade talks. A social clause for the WTO in the f­ uture remains as a crucial and necessary next step for creating enforceable l­egal obligations that can hold TNCs responsible for rights vio-

Introduction 5

lations. ­These interconnections between TNCs, ­labor rights, corporate social responsibility, U.S. courts, and a WTO social clause are laid out in Chapters 3 and 4, and further detailed in Chapter 7.

Global Governance, War, and Peace Chapter 5 applies the principals of just war theory to Amer­i­ca’s war on terror. It begins with a history of the origins of torturing suspected terrorists in the United States and the United Kingdom. A ­ fter 9/11, the United States ­adopted the British model for mistreatment of detainees. The creation, evolution, and evaluation of Amer­i­ca’s use of torture tactics are summarized. Chapter 5 then pre­sents a review of American war crimes in Iraq and Af­ghan­ i­stan, with special focus on a series of massacres in t­hose nations by U.S. troops. Chapter 5 ends with a consideration of the use of drones in relation to moral limits on the war against terror. Chapter 6 takes a more systemic approach to war, peace, and global governance. This final case study draws on a data set of 160 ­human rights treaties, covering the time period of 1946 to the year 2000. I review prior studies and the debate over w ­ hether ­human rights treaties change the be­hav­ior of states. I also pre­sent two illustrative cases of treaty-­making: the International Campaign to Ban Landmines that created the 1997 Ottawa Convention banning antipersonnel landmines; and the seventy-­year campaign for a treaty on c­ hildren’s rights that culminated in the UN Convention on the Rights of the Child (1989). This contextual material then serves as background for a quantitative analy­sis of the relationship between wars and the making of new h ­ uman rights treaties. Statistical evidence from Chapter 6 shows that, contrary to widespread prior assumptions, the primary trigger for creating most h ­ uman rights treaties is not a war or military crisis. Rather, creation of ­human rights treaties is much more likely a­ fter an extended period of global peace (with times of war versus peace mea­sured as total ­battle deaths). Treaty-­making for ­human rights is more likely during an extended peaceful interregnum between wars.

Two Models of Global Governance and the F ­ uture of Global Governance The concluding chapter of this text summarizes the combined lessons from the collected case studies by presenting two models of global governance for ­human rights. This summary devotes special attention to the successes and

6 Introduction

failures of global governance for dictatorial impunity, indigenous rights, corporate social responsibility, ­labor rights, and treaty-­making. Global governance and military interventions by the permanent members of the UN Security Council merit a separate discussion in the conclusion. I review proposals for expanding the Security Council as a way to discuss a pos­si­ble ­f uture where ­t here are greater restraints on unilateral military intervention and fewer war crimes The final chapter also considers the f­ uture of global governance for h ­ uman rights. I pre­sent Michael Walzer’s ideal types for “governing the globe” as a way to speculate on the likely shape of f­ uture global governance over h ­ uman rights. I also consider policy proposals to help us reach this f­uture state—­ policies that are derivable from the results of my case studies combined with Walzer’s normative theory.

An Introduction to Theories of Global Governance In 1991, the Soviet Union collapsed and the Cold War ended. In 1992, James Rosenau and Ernst-­Otto Czempiel published Governance Without Government: Order and Change in World Politics, a seminal text in the academic lit­ er­a­ture on global governance. In 1995, the Commission on Global Governance published its initial report expressing hopes that the United Nations would become a more power­ful and influential organ­ization. A new academic journal called Global Governance was also created in 1995. ­These rapid developments helped to bring the concept of global governance to center stage in research on world politics for the first time. A comprehensive description of the voluminous lit­er­a­tures on global governance is beyond the scope of this text. By way of introduction, I ­will summarize global governance studies in terms of three dimensions: global governance as an analytical worldview; empirical studies of global governance; and the special focus of global governance on international norms. Mainstream approaches to international relations have a history of ­limited scope. Dating as far back as the times of Thucydides (historian in ancient Greece, fifth ­century BCE), most studies of world politics have had a central focus on states, power, and war. Actors other than states, and issues not directly related to national power or war, w ­ ere largely overlooked or discounted. This view is usually referred to as “realism” or “realpolitik.” Global governance as an analytical worldview (or what phi­los­o­phers call a Weltan-

Introduction 7

schauung) is one of many alternatives that have been advanced to correct or expand upon realism and realpolitik. Other critics of realism can be found in theories of feminism, constructivism, or neoliberal institutionalism. Global governance as an analytical worldview is perhaps the most ambitious and wide-­ranging recent alternative to classical realism and its successors (recent variants are referred to as neorealism). Global governance as a theory-­based worldview seeks to correct the fallacies and myopia of realism and neorealism. Theories of global governance argue for an inclusion of, and emphasis on, nonstate actors (in addition to states). Nonstate actors highlighted by global governance include international organ­izations (IOs), private institutions, and civil society. Global governance theory offers a new lens on the world, freeing us from the restrictions of prior mainstream approaches. Studies of global governance, especially ­t hose by James Rosenau, point to the devolution or disaggregation of national sovereignty to other levels of analy­sis and other actors. They also investigate the linkages between local, national, regional, and global politics. Theories of global governance give us a new terminology, a new way of thinking, and an escape from the limits of mainstream international relations theory. Theories of global governance bring our attention to the rise of nonstate actors, the expanding activities of IOs, the dynamics of regionalism around the globe, and new forms of power. To demonstrate the power of a global governance approach, most members of this school of thought engage in empirical research as well. Klaus Dingwerth and Philipp Pattberg (2006: 185) argue that global governance “describes a specific set of observable and related phenomena and offers answers to failures of existing international relations theories to account for the empirical transformations” of post–­Cold War global politics. Empirical studies of global governance abound. Once again, a comprehensive summary is beyond the scope of this discussion, but a series of illustrative examples should suffice. Global governance theory has been used as a guide for empirical studies on climate change and the environment (Cadman, Maguire, and Sampford, 2017; Hoffmann, 2005), the Red Cross and the rules of war (Finnemore, 1996), transnational advocacy networks and po­liti­ cal activism (Keck and Sikkink, 1998), and international bond rating corporations (Sinclair, 2005). Other studies look at humanitarian intervention (Falk, 2015), the HIV/AIDS epidemic (Harman and Lisk, 2010), and corporate

8 Introduction

social responsibility (O. F. Williams, 2014). Additional recent texts look at global governance in the areas of rising powers (Gray and Murphy, 2017), the Security Council (Popovski and Fraser, 2017), or nongovernmental organ­ izations (NGOs) at the UN (Ruhlman, 2017). Prior empirical works on ­human rights and global governance have focused on national ­human rights institutions that promote state compliance (Goodman and Pegram, 2012); ­human rights “stewards” that make international law more effective at the national level (Hafner-­Burton, 2013); and networks of IOs that promote diffusion of rights for w ­ omen and sexual minorities (Greenhill, 2015). International organ­izations such as the UN or the Eu­ro­pean Union, and civil society actors such as NGOs or social movements, are featured in numerous other global governance studies. A third area of global governance that should be of special interest to students of h ­ uman rights is its focus on international norms. Global governance scholars argue that norms shape the actions of states and nonstate actors just as much as (and in many cases more than) a realpolitik focus on power calculations. Norms, values, and ethics (not to mention h ­ uman rights) are topics that realism largely ignored. Thomas Weiss’s work on global governance posits a “norm gap” in international relations that a global governance approach is especially well-­suited to address. Weiss reviews the “gaps” in norms governing the Security Council, anti-­terrorist policy, and humanitarian intervention (2013: chap. 5). He argues that such gaps prevent us from “reaching consensus about universally accepted norms” and closing ­t hese gaps through a better understanding of global governance is “what remains to be done” (2013: 45–48, emphasis in the original); closing the gaps and creating universally accepted norms would create “more order, stability, predictability and prosperity with a fairer distribution of benefits for the planet” (45). Weiss then relies on Martha Finnemore and Kathryn Sikkink’s seminal work (1998) that posits a life cycle of international norms through the stages of emergence, “cascading,” and internalization. Global governance is not without its critics, both external and internal to this epistemic community. One major criticism is that global governance is overly broad and poorly defined. Lawrence Finkelstein’s 1995 article entitled “What Is Global Governance?” was one of the first to assert that the term “global governance” is so vague and imprecise that it has been used to mean “virtually anything.” Craig Murphy (2000) is often quoted regarding his view that “global governance is poorly done and poorly understood.” Alice Ba and

Introduction 9

Matthew Hoffmann, staunch defenders of global governance theory, admit that “global governance can . . . ​be an entirely frustrating term and area of inquiry” (2005: 1). Thomas Weiss and Rorden Wilkinson (2014) believe that now, more than twenty years ­after Finkelstein first posed his question, “we have hardly advanced” any closer to a definitive answer as to what global governance is. ­There are also many competing definitions for the term “global governance.” The Commission on Global Governance (1995) defines it as: “The sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing pro­cess through which conflicting or diverse interests may be accommodated and cooperative action may be taken.” James Muldoon (2004: 9) defines global governance in terms of its “three institutional pillars”: “The concept of global governance involves three primary actors—­governments, markets, and civil society—­who operate within three basic domains—­the po­liti­cal domain, the economic domain, and the socio-­cultural domain.” This text ­will use as our working definition of global governance the one offered by Matthew Hoffmann (2005). “Global governance” in this study is understood to refer to the management of global issues in a po­liti­cal space that has no centralized authority. The next six chapters fit most closely within the prior lit­er­a­tures that pre­sent empirical case studies of global governance. My primary purpose in this book is to demonstrate how a global governance approach can inform our understanding of international h ­ uman rights. The case studies use global governance as an analytical guide. When relevant, global governance theory w ­ ill be brought directly into the conversation. In Chapter  1 and Chapter 7, I use the Pinochet pre­ce­dent to introduce and analyze two dif­fer­ ent models of h ­ uman rights and global governance. In Chapter 2, I use the results of my studies of indigenous rights to speak to the limits of global governance, especially in regard to the jealous protection by the g­ reat powers over their sovereign rights to control their borders and natu­ral resources. Chapters 3 and 4 bring together the campaigns for corporate social responsibility, a WTO social clause, and American federal court jurisdiction over TNC violations of rights to pre­sent a way forward in creating enforceable ­ legal responsibilities for TNCs to re­ spect ­ human rights. The conclusion of Chapter 7 builds upon Walzer’s normative theories of governing the globe to pre­sent an achievable ­f uture for global governance of international h ­ uman rights.

10 Introduction

This study brings together global governance theory, global governance empirics, and global governance norms. I begin with a discussion in Chapter 1 of the Pinochet pre­ce­dent. The Pinochet pre­ce­dent w ­ ill be presented as an early archetype of global governance for ­human rights.

Bridging the Divide Between Case Studies of H ­ uman Rights and Global Governance Theory This text brings together case studies of h ­ uman rights violations and theories of global governance (GG). In some chapters t­ hese connections are easy to make. Chapter 1 pre­sents the unique normative contributions that attention to ­human rights can provide for GG theory. Chapter 2 considers how indigenous rights can help to sort through current debates regarding the changing nature of national sovereignty. Chapters 3 and 4 (combined) show how we can establish new mechanisms for global governance authority over TNCs and h ­ uman rights. However, the relationships between the combined case studies (six in all) and global governance theory in general also require attention to a broader level of analy­sis. While each of the case studies is impor­tant enough to deserve in­de­pen­ dent attention, ­t here is also much to be learned from considering what the combined case studies can tell us about global governance for ­human rights. The broadest conclusions derivable from this book are based on an inductive logic. This analytical work is presented in Chapter 7. Chapter 7 details two models of global governance for h ­ uman rights. Th ­ ese two models are introduced in Chapter 1, and then discussed more fully in Chapter 7. I have labeled them as “Type I—­Global Governance as Synergy”; and “Type II—­ Global Governance as Institution Building.” I arrived at the two models by d ­ oing my case studies first, and then asking myself what the combined results from all case studies can teach us. This is an inductive logic that uses the rich details of the case studies as a foundation on which to build broader generalizations—­and policy prescriptions—­ that go beyond the par­tic­u­lar case studies themselves. During the pro­cess of bringing this book to press, at least one reviewer found it very useful to read the book like some p ­ eople read detective novels. It is pos­si­ble, for ­t hose readers primarily interested in GG theory, to read Chapters 1 and 7 first, and then go to the case studies contained in Chapters 2 through 6. For ­t hose who are more theoretically inclined, g­ oing directly to Chapter 7 a­ fter reading Chapter 1 w ­ ill give you the functional equivalent of

Introduction 11

reading the ending of a detective novel (first) to get the “whodunit” moment up front. For a GG theorist (or perhaps gradu­ate students) having a fuller understanding of Type I versus Type II global governance, as presented in Chapter 7, might be useful prior to reading the case studies in Chapters 2 through 6. Most students of h ­ uman rights, on the other hand, w ­ ill prob­ably be primarily interested in how global governance is related directly to abuses of indigenous rights, l­abor rights, and the rights v­ iolated by corporations or the war on terror. For ­t hose students looking first and foremost for materials on specific violations of rights, I suggest reading the chapters in the order presented. Once the details of the six case studies have been mastered, the inductive logic that produced the theoretical generalizations and policy recommendations of Chapter 7 should be easy to follow.

Chapter 1

The Pinochet Pre­ce­dent as an Exemplar of Global Governance

Global governance and ­human rights constitute two areas that are rarely considered in relation to one another. H ­ ere I w ­ ill make some preliminary connections between the two. I begin by considering what a global governance perspective has to offer ­t hose of us who have been involved in more traditional approaches to ­human rights. I then move on to discuss what a ­human rights perspective can add to existing treatments of global governance. I follow with an illustrative example that shows how combining ­t hese two analytical perspectives ­will give us a better understanding of global politics. My first example of global governance in the area of ­human rights is what has come to be known as the “Pinochet pre­ce­dent.” I ­will also tie global governance to two alternative perspectives on international justice. This chapter concludes by discussing po­liti­cal disappearances during the post-9/11 war on terror, and more recent efforts to bring dictators to justice.

The Global Governance Contribution to Studies of ­Human Rights Mainstream treatments of ­human rights have traditionally been centered on nation-­states. This is, perhaps, as it should be ­because nation-­states are both the primary violators of h ­ uman rights and (at the same time) t­ hose actors charged by international law with the principal responsibilities for protecting and promoting basic rights and fundamental freedoms. More recently, research on h ­ uman rights has turned (in part) to an added focus on at least some nonstate actors that also violate rights. This more recent development

Pinochet Pre­ce­dent 

13

has addressed the impact of economic actors on ­human rights, especially transnational corporations (TNCs). Supplementing the traditional state-­ centric bias of h ­ uman rights lit­er­a­tures with attention to TNCs was an impor­tant step forward (see Chapters 3 and 4 in this text). However, to keep the h ­ uman rights epistemic community current with both the changing nature of global relations, and with recent advances in international relations (IR) theory, we must now expand the scope of our attention. Students and scholars of h ­ uman rights must come to grips with global governance (GG). Global governance is a relatively recent development in policy circles and among IR theorists. Much of the early work regarding GG was directed at international organ­izations (IOs), especially the UN. In 1995, the UN’s Commission on Global Governance published its initial report. The end of the Cold War, combined with the centrality of the Security Council for legitimizing the Gulf War of 1991, led to hopes that the UN would become a stronger and more influential body. Supporters of the UN pop­u­lar­ized the term “global governance” ­because they wanted to distinguish between GG and “global government.” “Governance” is a broader term than “government.” Talk of “governance” is designed to highlight global po­liti­cal management that falls short of the formal powers and procedures of a government. Global governance is not about a world state or the creation of some supranational body that would have control or sovereignty above that of the nation-­state. One skilled GG theorist defines global governance as the management of global issues “in po­liti­cal spaces that lack centralized authority” (Hoffman, 2005). Hence, global governance is explic­itly not about making the UN into some sort of global federal state. In many areas of global governance, such as the Pinochet pre­ce­dent (to be discussed below), the UN may have ­little or no significant part to play. “Global governance” has become a sort of catchall phrase to denote all ­those recent global po­liti­cal trends that are beyond the reach of state sovereignty or outside the scope traditional IR theory. A GG approach, therefore, requires that we study ­human rights (or any similar topic) in such a way as to cover all of the following (to some extent): states and national interests (standard realpolitik areas); nonstate actors (e.g., TNCs, ethnic groups, NGOs); global civil society (e.g., social movements, NGOs again); regional and international IOs; and even key individuals. Global governance seeks to deconstruct the old IR theory “levels of analy­sis” conundrum—­that is, if we want to understand global prob­lems such as ­human rights or environmental destruction, at what level should we cast our analy­sis? Global governance argues that all levels of analy­sis may be relevant. Further, the events and

14 Chapter 1

actors at ­these many levels interpenetrate and fuse with one another to such an extent t­ oday as to make the old IR theoretical perspectives of realism, neorealism, and neoliberal institutionalism somewhat archaic. A quick synopsis of the evolution of mainstream IR theory should help to make clearer the case in ­favor of global governance perspectives. Theoretical treatments of international relations have always strug­gled to some extent to keep up with the world around us. Classical IR theory, from Thucydides (fifth c­ entury BCE) to Machiavelli’s The Prince (1513), and into the post–­World War II era, sought to understand states and national power. Hans Morgenthau authored Politics Among Nations, the seminal post–­World War II text for realism, in 1948 at a time when the demise of realism as an adequate perspective had already begun. Critics of realism have offered a number of alternative views, the most widespread of which has been “interdependence” or “neoliberalism.” Theorists of interdependence and neoliberalism argue that realism/neorealism is riddled with fallacies. Realism focuses on military power, while its critics stress the importance of nonmilitary interests. Interdependence highlights international cooperation and common interests in contrast to realpolitik’s pessimism regarding anarchy and conflict. The changing nature of global politics has forced ­these revisions in IR theory. The emergence of global economic crises (from oil embargoes in the 1970s to financial “meltdowns” in the 1990s and 2008) has shown that realism’s single-­minded focus on security leaves gaping holes in our ability to explain global events. Early efforts to correct this myopia led to “regime theory” as a successor to analyses of complex interdependence. International “regimes” w ­ ere pointed to as impor­tant actors in their own right. Economic regimes such as the International Monetary Fund (IMF) and the World Bank have developed into forces that are more than the sum of their parts (­t hose parts being the member governments). Hence the label “neoliberal institutionalism” became popu­lar as a way to categorize this newer chapter in evolving IR theory that emphasizes the importance of international organ­izations and international regimes. In its broadest sense, the turn to global governance is simply the next wave of the empirical events that international relations theory seeks to explain, as well as being the next chapter in IR theoretical lit­er­a­ture. Global governance extends regime theory to the next logical step. “Global governance” also is a phrase used to describe the events themselves. In other words, global governance as a school of thought is both descriptive and prescriptive.

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15

A global governance perspective is descriptive ­because it sees the devolution of national sovereignty as a demonstrable fact. Global governance approaches are also prescriptive in at least two senses. Global governance analy­sis gives states and IOs policy recommendations that can help t­ hese more established actors cope with the rapid rate of change in the world. GG theory is also prescriptive ­because, deep in their hearts, GG theorists believe that the world w ­ ill be a better place when global prob­lems such as violations of h ­ uman rights or terrorism are managed via integrated, multilevel (nonviolent) cooperation rather than via resurgent, neorealist, unilateral wars.

A ­Human Rights Contribution to Theories of Global Governance ­ uman rights analyses need to be informed by theories of global governance H in order to keep current with both global events and the changing nature of IR theory. GG theory, in turn, needs to hear more from students of ­human rights in order to inject a normative strain into its bloodstream. In Approaches to Global Governance Theory, Martin Hewson and Timothy Sinclair (1999) identify three schools of thought within GG theory. One approach is to use global governance as a relatively new way to focus on (and in turn enhance) the work of international organ­izations, especially the UN. The work of the Commission on Global Governance is the best-­k nown example of this approach. A second methodology is GG as a revision to and extension of regime theory. Regime theory was dominant during the 1980s as a way to understand global politics within a series of issue areas. Regime theory both described and helped to invigorate a late twentieth-­century proliferation of new regimes, such as the emergence of the World Trade Organ­ ization (WTO) to loosely “govern” trade relations. When new international regimes for par­tic­u­lar issue areas (especially for environmental affairs) began to approach one hundred, some scholars started to talk about such overlapping webs of regimes as a “system of international governance” (Hewson and Sinclair, 1999: 12). Hence, global governance is the next logical step beyond ­earlier efforts to develop regime theory. Hewson and Sinclair identify ­t hese IO and regime theory variants of GG largely as a way to dismiss them in f­ avor of their third approach—­global governance as a way to understand global change. I’m tempted to describe global governance as “perspectives on global change” as ­little more than a residual category within the Hewson and

16 Chapter 1

Sinclair typology. H ­ ere they put all GG theory that does not specifically address international regimes, or international organ­izations, and then champion this “approach” as superior to the other two. Regime theory and IO variants of GG each require (for ­t hese authors) about one page (or less) to summarize. Global governance as a theory of “change” requires an extensive treatment for Hewson and Sinclair b ­ ecause they lump together u ­ nder this heading anyone who analyzes international change in any of the following areas: economic globalization; the location of authority; integration; fragmentation; patterns of “global life”; micro and macro levels; global civil society; Eastern Eu­ro­pean dissidents; indigenous p ­ eoples movements; cosmopolitan democracy; international po­liti­cal economy; transnational co­ali­tions of social forces; hyperliberalism; finance ministries of the G8 governments; transnational political-­ideological tendencies; the Davos forum; the Trilateral Commission; globalizing elites; the new constitutionalism; epistemic elites; knowledge brokers; informational elites; and a heuristic “ontology” that highlights epistemic authority, markets, and technology. And this only a partial listing of the many concerns listed by Hewson and Sinclair as being similar to one another b ­ ecause each is an analy­sis of change. Describing “good” global governance theory as that which analyzes change therefore becomes somewhat the opposite of Occam’s razor. Hewson and Sinclair also argue that criticizing GG theory as an approach that includes “virtually every­t hing” is, in their view, “misplaced” (17). But if good GG theory includes all of the above, then what in global politics could possibly be outside or beyond global governance? What seems to be missing from the Hewson and Sinclair typology and the contribution that a h ­ uman rights perspective on GG most readily supplies is a direct focus on values. A ­human rights perspective gives us, in effect, a fourth approach to GG, a normative approach. A normative approach to global governance can provide several ­things that ­these other three methods cannot. First of all, a normative approach can cut across the other three approaches and help to provide guidance that the kitchen-­sink perspective denies us. International regimes and international organ­izations are both inextricably bound to par­t ic­u ­lar (and often competing) norms. The standard textbook definition of regimes first offered by Stephen Krasner (1982) basically defines regimes by means of their institutional structure as related to their operational norms and values. Likewise, the Charter of the United Nations defines the very existence of that body primarily as a tool for furthering the values

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17

of international peace, h ­ uman development, and h ­ uman rights. A focus on ­human rights and related norms/values could also help us to sift through the many dimensions of “change” that Hewson and Sinclair find to be so crucial. A focus on h ­ uman rights and values also gives us a perspective on global governance that cuts across the confusing diversity of the world’s many socie­ ties and cultures. H ­ umans are set apart from each other by so many f­actors including religion, ideology, language, class, income, race, and life chances. One ­thing that all ­people have in common, however, is a desire for ­human dignity. No movement or perspective has more potential to promote and preserve h ­ uman dignity than the international campaign for ­human rights. ­There is obviously much diversity and debate within the ­human rights dialogue as well. But all approaches to ­human rights (Asian, indigenous, Islamic, Western, and so on) are approaches that seek to uphold some vision of h ­ uman dignity. Fi­nally, a h ­ uman rights perspective on global governance can help to debunk some of the claims advanced by the other approaches. Hewson and Sinclair are again a case in point. Hewson and Sinclair claim, following their lit­er­a­ture review, that their purpose “is to understand the origins of forms of governance so as to anticipate their transformation into other forms over time, rather than the pragmatic concerns of most positivist or problem-­ solving work with making the existing system of global governance more effective” (17). While they see themselves as something other than “positivists” who do “problem-­solving work,” Hewson and Sinclair invoke (in the same sentence) the central distinction upon which all forms of logical positivism is based: the distinction between facts and values; or the distinction between description and prescription. They claim to be ­doing descriptive work on the origins and transformation of global governance, rather than prescriptive analy­sis of how to make GG more effective. Any normative approach to global governance, especially one based on attention to h ­ uman rights, teaches us that this is a false dichotomy. Facts and values are inseparable. Any description of the “transformation” of global governance has, hidden within it, prescriptions about the path that such a transformation o ­ ught to take. Likewise, prescriptions for what policy o ­ ught to be or campaigns to improve h ­ uman rights are g­ oing to be effective only if they are based on a thorough understanding of the harsh realities of power politics. Facts and values are always inseparable. The best way to show how facts and values are linked when it comes to global governance is to begin by looking at specific cases. This book contains a series of case studies on global governance and ­human rights that covers

18 Chapter 1

the following areas: impunity versus the prosecution of dictators; indigenous rights related to international law, international courts, and transnational organ­izations; TNCs and corporate social responsibility; ­labor rights and the WTO; anti-­terrorist policy, torture, and related violations of ­human rights; and treaties on ­human rights. This chapter pre­sents what is perhaps the most accessible example of global governance in the area of h ­ uman rights: the Pinochet pre­ce­dent.

The Pinochet Pre­ce­dent as an Example of Global Governance General Augusto Pinochet ruled Chile as dictator (and unelected president) from 1973 to 1990. During this time, the agents of his junta committed more than three thousand po­liti­cal murders. A ­ fter Pinochet gave up power, t­ here ­were, initially, no serious attempts inside of Chile to hold him responsible for his crimes. However, international efforts to prosecute Pinochet in a foreign court (efforts that failed) led to subsequent steps ­toward putting him on trial in Chile. B ­ ecause of efforts outside of Chile, po­liti­cal leaders inside of Chile reversed ­earlier domestic policies that had largely ignored his crimes. Impunity for his crimes at long last came to an end. Reversing de­cades of unchallenged impunity for right-­wing Cold War dictators is no small ­matter. However, mainstream international relations theories like realism or liberalism offer no help in understanding this seismic po­liti­cal shift. The only IR theory that can help us to understand the politics of the “Pinochet pre­ce­dent” for ending impunity is global governance. ­After years of internal re­sis­tance and international sanctions, Pinochet was forced to allow a plebiscite in 1988. It was the first demo­cratic Chilean election since he had seized power during a bloody coup fifteen years e­ arlier. Much to his surprise, a majority of the ­people in Chile voted “no” to another five years of his rule. He gave up his position as Chile’s president in 1990, but remained as commander in chief (retaining unmatched po­liti­cal power through his control of the military) ­until 1998. The newly elected demo­cratic government that succeeded Pinochet created a Truth and Reconciliation Commission (TRC) during the 1990s to document the junta’s crimes. The TRC’s final report detailed 3,197 specific deaths, while hundreds of additional p ­ eople (perhaps thousands) remain missing a­ fter being detained by Pinochet’s security forces (National Commission, 1993). Chile’s TRC served as a short-­term po­liti­cal substitute for

Pinochet Pre­ce­dent 

19

bringing Pinochet and other members of his dictatorship to trial. The Chilean military made it clear that any effort to prosecute Pinochet in Chile during the 1990s would simply provoke another (unstoppable) coup. A trial for Pinochet was a po­liti­cal impossibility between 1973 and 1998. No one inside of Chile would have seriously suggested that he stand trial. Every­one in Chile in ­those days knew who was r­ eally in charge of the po­liti­cal system. Pinochet controlled Chile while enjoying continued immunity from prosecution. Then a remarkable t­ hing happened. In 1998, while Pinochet happened to be in London for medical treatment, a Spanish judge handed down an indictment for his arrest. Judge Baltasar Garzon wanted him extradited from ­England to Spain to stand trial for genocide, torture, and murder (Rothenberg, 2002). The Spanish murder charges centered on Spanish citizens who had been killed during Pinochet’s 1973 coup. Spain fully expected the British government to honor its requests for extradition. Pinochet, as a former head of state and a recently declared “senator for life” in Chile, claimed that he had diplomatic immunity. It took sixteen months for the British to decide what to do (Roht-­Arriaza, 2005). In the meantime, Pinochet was held ­under “house arrest” (in a mansion, next to a golf course). ­Great Britain and Spain at that time ­were both members of the Eu­ro­pean Union (EU) and the Council of Eu­rope (COE). All EU and COE members are required to honor the jurisdiction and power of fellow members’ courts. British l­ egal authorities fi­nally de­cided that they had a specific obligation to extradite in this case due to their additional obligations as a party to the international Convention Against Torture (CAT). The United Kingdom ratified the international torture convention in 1988. The United Kingdom de­cided it had to hold and extradite Pinochet for any crimes he may have committed ­a fter 1988 (­t here ­were many such charges leveled). However, as it turned out, the general never was sent to Spain. A British court ruled (in the end) that he was too ill to stand trial (and perhaps too feebleminded at that point); therefore he was sent back to Chile in March of 2000. This is where the story becomes very in­ter­est­ing from a global governance or an international h ­ uman rights perspective. Once he was back in Chile, unpre­ce­dented ­legal action was taken in Pinochet’s homeland, action that had been almost unthinkable just a few short years e­ arlier (Roht-­Arriaza, 2005). Chile’s Supreme Court stripped him of his senatorial immunity in August of 2000. In 2001, Pinochet was charged for the first time in a Chilean court with murder, kidnapping, and conspiracy. Seventy-­five deaths that occurred during the so-­called “caravan of death” (just weeks ­after the September 1973

20 Chapter 1

coup) ­were cited in par­tic­u­lar. The kidnapping and murder charges ­were ­later dropped, but the conspiracy charges (for the subsequent cover-up) remained. Unfortunately, Pinochet died before he ever went to trial. The key global governance dimensions of this new Pinochet pre­ce­dent involve the synergy between ­these national-­level policies (in Chile, Spain, and the United Kingdom), and the regional institutions (the EU and the COE), as well as the international ­legal regimes created by the 1984 Torture Convention and the 1948 Genocide Convention (both of t­ hese treaties are products of the UN). Key individuals (such as Judge Garzon) and NGOs from civil society (particularly Amnesty International) also had impor­tant roles to play in establishing the Pinochet pre­ce­dent. None of the efforts to prosecute Pinochet inside of Chile post-1998 could have been reasonably expected without the previous (failed) efforts by Eu­ro­pe­ans to bring him to trial elsewhere. To understand the larger implications of all of this for global politics, global governance must provide the key. Realism, liberalism, regime theory, and other mainstream IR perspectives shed ­little light on ­these events ­because none of t­ hese prior theories can speak to all of the levels of analy­sis involved in creating the Pinochet pre­ce­dent. Nor can analyses based on international law alone help us sort through the crucial po­liti­cal mechanisms involved h ­ ere. The ­thing that all of t­ hese actors have in common is their status as “spheres of authority.” A sphere of authority (SOA) is any po­liti­cal actor, at any level of analy­sis, that contributes to pro­cesses of global governance (J. Rosenau, 1997). James Rosenau’s seminal work on global governance has highlighted the shifting locations of po­liti­cal authority in our age. Global changes have involved the relocation of authority across multiple levels and areas. In some ways, authority such as national sovereignty is fragmenting. In other re­spects, authority is being realigned and integrated into new patterns. This is happening at the micro level, within global civil society, and at the macro level. Global governance and its attendant multilevel spheres of authority are emerging from patterns that are both globalizing and localizing (in one and the same time frame).

Implications of the Pinochet Pre­ce­dent for Global Governance and H ­ uman Rights At the descriptive level, the Pinochet pre­ce­dent is further evidence that global governance is indeed upon us. The Pinochet pre­ce­dent is a concrete example of the management of an impor­tant global h ­ uman rights issue (e.g., bring-

Pinochet Pre­ce­dent 

21

ing dictators to justice) in a po­liti­cal space where t­ here had been no overarching, centralized authority to do the job. In this example, global governance clearly exists. In spite of the fact that ­t here was no centralized po­liti­cal authority to deal with Pinochet’s crimes, nor any single authority that could end impunity for former dictators, many spheres of authority contributed to the steering and guidance needed for establishing the Pinochet pre­ce­dent. This type of global governance is based on synergy or symbiosis. Many actors at many levels worked to create the Pinochet pre­ce­dent. The Pinochet pre­ce­dent is global governance for ­human rights in the form of synergy or symbiosis. A synergy arose from the work of diverse actors that was greater than the sum total of its constituent parts. At the level of prescription, Pinochet’s case also indicated that ­t here was still much work to be done. What was needed, obviously, was an effective and institutionalized pro­cess by which dictators who enjoy impunity in their home country could be brought to justice elsewhere. The ad hoc arrangements that eventually led to Pinochet’s indictment in Chile are too cumbersome and problematic to serve as the only model for other similar cases. What was needed at the global level was another type of global governance for ­human rights. This other form is global governance as institution building. Fortunately, the centralized institution that is needed in this regard has already been created, although it remains in its infancy. It is the International Criminal Court (ICC), which the United States has refused to join. The world needs a permanent court of last resort with universal jurisdiction over all cases of genocide and mass murder (when national courts are unwilling or unable to do so). This fact is even more evident in a post-9/11 world (Hitchens, 2001). The ICC must close the transnational loopholes that have allowed dictators like Pinochet to escape justice. The ICC ­will help to establish more clear-­cut global standards to prohibit mass murder. It is a standing court of last resort for instances when national courts fail. The ICC also represents another form of global governance. Following Hoffman (2005), I define global governance primarily as the management of global issues in a po­liti­cal space that has no centralized authority. The Pinochet pre­ce­dent is an example of global governance as synergy, with many spheres of authority at many levels contributing to ad hoc efforts to produce a desired outcome. Another model for global governance, however, is based on institution building, such as the creation of the International Criminal Court. The ICC is designed to become a new centralized authority with the power to govern international l­egal affairs in regard to genocide, war crimes, and crimes against humanity. ­These

22 Chapter 1

competing models of global governance for ­human rights (the synergy model and the institution-­building model) w ­ ill be discussed further in this chapter’s conclusion and in Chapter 7. Global governance as exemplified by the Pinochet pre­ce­dent also points to prescriptions in terms of U.S. foreign policy. The ICC must have the resources, authority, and support required to do its job effectively. To have sufficient power and legitimacy in all cases, the ICC must ultimately have the support of the United States. But ­t here is also a larger point to be made ­here regarding global governance. Even if we can agree that global governance exists, and that it needs to be promoted and strengthened, this still begs the question about where GG should go from ­here. I ­will consider t­ hese larger issues by relating global governance to two dif­fer­ent approaches to justice.

Global Governance and Alternative Models of International Justice My argument to this point was first laid out in a public forum during a Foundations Workshop at one of the American Po­liti­cal Science Association’s annual meetings. Most of the participants at the workshop had a primary background in po­liti­cal theory or po­liti­cal philosophy. Members of the workshop w ­ ere curious about the ways in which global governance might be related to democracy and justice. Is global governance based on the norms of participation and equity, and if not, should it be? To what extent are groups from civil society or developing nations participating in the pro­cesses of GG? ­Will the outcomes of global governance bring us closer to international justice? My own view is that the model of global governance as symbiosis (such as the Pinochet pre­ce­dent) is connected to justice in the way that John Nelson describes his concept of justice as “just getting by” (a view laid out by Nelson during the same workshop). Global governance as symbiosis or synergy between like-­minded spheres of authority is related to justice in the sense of justice as “just getting by” (JGB). Global governance is not a roadmap to international justice that tells us specifically where to go. In order to elaborate on this point, I must contrast Nelson (2004) and “just-­getting-by justice” with more mainstream approaches to defining “justice” that can be found in the works of John Rawls (1971) or Charles Beitz (1979). The basics of a Rawlsian approach to justice have been widely read and debated, so I w ­ ill pre­sent only a brief sketch of Rawls’s position h ­ ere. In his well-­k nown Theory of Justice, Rawls develops an approach to what he calls

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“justice as fairness” (JAF). Justice as fairness is based on two princi­ples of justice, plus what Rawls refers to as the “original position.” Justice, for Rawls, must be based on fairness to all parties of any social contract. The princi­ples come in serial order b ­ ecause “the first is prior to the second” (1971: 61). The first princi­ple states that all social values must be distributed equally ­unless an unequal distribution is somehow to every­one’s advantage (this is what Rawls calls the “efficiency princi­ple”). The second princi­ple asserts that, when inequalities exist, they must redound to the benefit of the most marginalized segments of society (Rawls calls this the “difference princi­ple”). The “original position” is a circumstance that we must imagine ourselves into before we apply the two princi­ples to cases. The original position is a thought experiment that requires all parties to a social contract to imagine away any of the particulars of their own situation (such as one’s income, class, race, gender, or age). Rawls wants to give us, in essence, a blueprint for justice. Just follow his blueprint (the two princi­ples plus the original position) and what­ever comes out as a resultant is, by his definition, necessarily a form of “justice.” Rawls believes that his analytical approach to justice guarantees that anyone who follows his methodology w ­ ill necessarily construct a just society. His is an abstract, analytical, process-­based approach to defining justice that is in­de­ pen­dent of all historical contexts. This is most definitely not the kind of international justice that the synergy model of global governance can provide. Justice as fairness at the international level is a conceptual framework that has been developed by Beitz. Beitz takes the Rawlsian approach to justice and applies it to international relations. In his 1971 tome, Rawls assumed that national borders set the limits for the social cooperation that produces public goods. His two princi­ples of justice and the original position are supposed to be our best guide to the distribution of ­t hese public goods. Rawls first developed his theory of justice for application only within nation-­states. Beitz notes the obvious fallacy of Rawls’s assumption about the limits of cooperation, and then argues for applying Rawls’s theory to international relations in order to create a system of international distributive justice. B ­ ecause international interdependence (especially in the economic sphere) creates wealth that would other­wise not exist, Beitz believes that an approach like that of Rawls is the way to go in order to equitably distribute the results of international cooperation. Beitz expands Rawls’s abstract approach to justice to a global scale. However, Beitz never gives us the particulars of such an arrangement. He never tells us in

24 Chapter 1

any specific way just how the mutually created public goods should be distributed internationally. Like Rawls, Beitz pre­sents an abstract and context-­ free description of justice. This Beitz/Rawls abstract, analytical, liberal “blueprint” model of justice contrasts starkly with Nelson’s much dif­fer­ent “just getting by” model of justice. Nelson’s purposes for writing about justice are distinctly dif­fer­ent from ­t hose of Rawls or Beitz. Nelson is not interested in giving us analytical blueprints or abstract roadmaps to aid in a search for justice that is in­de­pen­dent of all historical contexts. Rather, he seeks a more practical, seat-­of-­t he-­pants approach to justice that cannot be applied apart from the real-­world prob­lems of justice that ordinary ­people face ­every day. For Nelson, justice is better understood as just getting by (JGB). Justice as JGB is about “balancing. . . . ​ ­There is nothing meticulous or scientific about it. . . . ​[It] is rough-­and-­ready. It is just good enough to get by, at least for now” (2004: 9). Playing off of the ordinary-­language connections between “just” in the sense of “fair” or “lawful” and “just” in the sense of “merely” or “barely,” Nelson draws our attention to the hard realities of figuring out what is truly just in any specific case. Just getting by means that, in the real world, almost no one can (or should) always apply abstract princi­ples or original positions to deciding what to do. Effective po­liti­cal action in many cases requires a notion of justice as just getting by. Nelson (2004) reviews six conceptions of justice, one of which is exemplified by Rawls. Rawls’s conception of justice as fairness is an example of what Nelson calls “justice as true mea­sur­ing” (2004: 5). Nelson points to Rawls in par­tic­u­lar as one who seeks to develop “impersonal algorithms of justice”; Rawls’s justice as fairness “abstracts justice into applying criteria that supposedly suit all times and individuals” (ibid.). Nelson’s own view of justice as just getting by, in contrast to Rawls’s work, is an alternative understanding that “resists statement in criteria for all conditions” (2004: 1). When one follows justice as just getting by: “No universal criteria get met, no golden ideals are kept” (2004: 3). Justice as just getting by is “variable rather than universal, prudent more than rational. Yet this public justice leaves the ­people vital and civil” (ibid.). The Pinochet pre­ce­dent is a concrete example of precisely this type of a vital, civil, prudent, and variable exercise in justice. The Pinochet pre­ce­dent is global governance as synergy, but the Pinochet pre­ce­ dent is also justice in the mode of just getting by. To draw an analogy taken from studies of foreign policy, justice as just getting by is similar to that hallmark of British foreign policy: muddling

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25

through (White, 2002). The British pride themselves in their ability to adapt to changing circumstances (such as the decline of global British power a­ fter World War II). They do so not by means of abstract princi­ples, but rather by means of just getting by for now. Tony Blair’s decision to go into Iraq “shoulder to shoulder” with George  W. Bush in 2003 is a case in point. Once it was obvious to Blair that Bush was ­going to invade Iraq, regardless of the opinions at the UN Security Council, Blair had to make a painful decision: do British forces go into Iraq with the United States, or do they sit on the sidelines as other major NATO allies chose to do? In making his choice, one can assume that the princi­ples of international law had l­ ittle impact on Blair’s choice. Rather, he made his decision based on a cost-­benefit calculation that he would prob­ably apply to only that decision. I personally did not support the invasion of Iraq, nor would I have calculated the costs and benefits of British membership in Bush’s co­a li­tion as Blair did. I certainly would not offer military invasions that ignore the Security Council as an example of global governance. In fact, such invasions are almost the direct opposite of global governance (see the discussion of Security Council reforms in Chapter 7). I am simply pointing to the British technique of case-­ by-­case foreign policy in general and Blair’s 2003 decision in par­tic­u ­lar as examples of po­liti­cal action based on just getting by or muddling through. British policies, both the general and the specific, are not usually based on abstract princi­ples. Nelson’s examples of justice as just getting by do not come from international relations or foreign policy. His illustrations tend to come from popu­lar movies. I do not want to imply any guilt by association when I compare JGB justice to British muddling through. Blair made a terrible m ­ istake in 2003. However, purely abstract models of justice as fairness (JAF), and Beitz’s concomitant inability to give us any specifics on how international distributive justice should be implemented, w ­ ill lead to even more m ­ istakes and dead ends when trying to balance the scales of justice. What does all of this have to do with global governance? My point ­here is simply that the justice that results from global governance as synergy w ­ ill be much more akin to JGB justice and muddling through than it can ever hope to approach abstract standards of Rawls’s justice as fairness. If one hopes to construct a blueprint for universal global justice via global governance, or to describe a pro­cess model by which global governance ­will serve as a roadmap to reach the predetermined end point of “true” global justice in all cases, then one is destined to experience only frustration. The many spheres of

26 Chapter 1

authority that worked together to produce the Pinochet pre­ce­dent w ­ ere, in their finest hour, muddling through; they w ­ ere just getting by. What about the ­future of global governance? Should groups from civil society be included in the GG pro­cesses? I would say yes, but they may be able to do so only by breaking down the doors to the negotiations. The infamous ­battle in Seattle at the World Trade Organ­ization’s 1999 ministerial meetings, and the subsequent decision by the WTO to give NGOs a new place at the bargaining ­table, would be a case in point. Should developing nations be accorded more of a voice in the decisions that establish global governance? Again, I would say yes, but they may be able to do so only via bloc diplomacy, a tactic they have employed at a series of environmental conferences since 1992 (see Meyer, 2004: chap. 11) and at the World Trade Organ­ization (see Chapter 4 in this text). The Pinochet pre­ce­dent also raises two broader issues, one tied to seeking justice for the victims of po­liti­cal disappearances, and the other tied to alternative forms of global governance. This chapter concludes with a discussion of each of ­t hose issues.

Bringing Dictators to Justice, Po­liti­cal Disappearances ­After 9/11, and Two Models of Global Governance During the Cold War, prosecution of dictators was largely impossible. Repressive leaders in right-­wing dictatorships and in left-­wing, communist one-­ party states ruled with impunity. The Pinochet pre­ce­dent was a watershed event that turned the international po­liti­cal tide against impunity for former dictators. In the post–­Cold War era, and following the creation of the Pinochet pre­ce­dent, ­t here have been several dif­fer­ent approaches to holding dictators accountable in relatively new ways. One study lists as many as sixty-­five former heads of state who have been prosecuted for ­human rights violations and financial crimes since the end of the Cold War (Lutz and Reiger, 2009). Whenever pos­si­ble, the preferred approach is to try the accused in their own country. This approach was unthinkable prior to the long-­term results of the Pinochet pre­ce­dent. Fortunately, this trend continues. In Peru, a former Peruvian dictator went to trial in 2015 for crimes against humanity. Francisco Morales Bermudez was put on trial for the 1978 mass kidnapping of civilians (one type of a crime against humanity), particularly the case of three journalists (Telesurv TV, 2015). Some of the henchmen from Pinochet’s dictatorship are also still being hunted down. In July of 2015, Judge Mario Carroza in Chile ordered the arrest of seven former Chilean army officers for the

Pinochet Pre­ce­dent 

27

1986 death of photographer Rodrigo Rojas. While photographing a national strike in protest against Pinochet’s regime, Rojas was detained, allegedly beaten by the military, then doused with gasoline, and set on fire. His body was dumped in a ditch outside Santiago, and Rojas died four days ­later (Mint Press News, 2015). Another approach in the pursuit of justice has been to employ vari­ous ad hoc tribunals. One prototype, the International Criminal Tribunal for the Former Yugo­slavia (ICTFY, established by the UN Security Council), tried the former dictator of Serbia Slobodan Milosevic, who died in prison in 2006 during the second year of his long trial. Radovan Karadzic, former leader of Bosnian Serbs, was found guilty of genocide before the ICTFY in 2016 and sentenced to forty years in prison. The African Union created a regional ad hoc tribunal in Senegal to try Hissene Habre, former dictator in Chad. Habre was found guilty in 2016 for crimes against humanity committed during his rule (1982–1990). Habre was accused of sanctioning 40,000 deaths, torturing hundreds of thousands, and forcing w ­ omen into sexual slavery (In Landmark Trial, 2016). This was the first trial of a former African dictator in another African country u ­ nder the auspices of the African Union. H ­ uman Rights Watch has referred to the Habre case as “Africa’s Pinochet” (ibid.). While still relatively new, the International Criminal Court has already established an admirable track rec­ord as the only centralized, standing international court of last resort for crimes of genocide, war crimes, and crimes against humanity. Jean-­Pierre Bemba, a former vice president of the Demo­ cratic Republic of Congo, was convicted before the ICC in 2016 of war crimes. His war crimes conviction was overturned on appeal in 2018, but Bemba remained in detention at The Hague for a separate bribery conviction. Laurent Gbagbo, former president of the Ivory Coast, was on trial before the ICC for crimes against humanity at the time of this writing. President Omar al-­Bashir of Sudan has been indicted by the ICC for genocide and war crimes but remains at large. ­These vari­ous approaches—in country, ad hoc regional and international tribunals, and the global ICC—­represent alternate con­temporary means for bringing former dictators to justice. Po­liti­cal disappearances a­ fter 11 September 2001 remain as another key international h ­ uman rights issue that cries out for global governance. In Latin Amer­i­ca during the Cold War, the victims of enforced po­liti­cal disappearances w ­ ere known as los desaparecidos, a Spanish term for “the

28 Chapter 1

­people who dis­appeared.” Pinochet’s victims ­were kidnapped by the government, tortured, and murdered, their bodies ­were disposed of, and then the regime would deny any knowledge of their whereabouts or fates. Use of enforced disappearances became standard operating procedure for numerous juntas in Argentina, Guatemala, and much of Latin Amer­i­ca. Like Pinochet, other dictators enjoyed impunity for such crimes throughout the Cold War. Pinochet himself ultimately escaped punishment ­because he died before the charges against him in Chile ­were finalized. The Pinochet pre­ce­dent, however, became a key turning point in bringing other dictators to justice. Judge Garzon in Spain went on to indict former dictators from Argentina (Roht-­ Arriaza, 2005). The ­ripple effects of the Pinochet pre­ce­dent w ­ ere also felt in places like Guatemala, where a similar chain of events took place. Rigoberta Menchu, a member of Guatemala’s indigenous K’iche’ ethnic group and winner of the 1992 Nobel Peace Prize for her work in defense of indigenous rights, had to turn to Spain’s National Court in her campaign to bring the former dictator General Efrain Rios Montt to justice. For thirty years, Menchu and other ­human rights activists ­were denied a ­legal forum in Guatemala. A ­ fter the Spanish court issued indictments for Rios Montt in 2006 and demanded his extradition, Guatemala’s attorney general Claudia Paz de­cided for the first time to pursue the case in domestic courts, following closely the tactics employed in the Pinochet pre­ce­dent. Rios Montt became the first head of state to be prosecuted for genocide in his own country. He was convicted in 2013 of both genocide and crimes against humanity. However, Guatemala’s highest court ­later overturned that verdict on ­legal technicalities, leading to the possibility of a lengthy retrial. While the Rios Montt case remained unsettled, the larger issue of po­liti­cal disappearances related to the war on terror garnered increased attention. ­After al-­Qaeda’s attacks on 11 September 2001, the George W. Bush administration employed enforced disappearances in its war against terror. The Bush administration used the term “extraordinary renditions” to refer to an or­ga­nized campaign that kidnapped suspected terrorists and whisked them away to so-­called “black sites” (which ­were never publicly acknowledged) in allied states such as Af­ghan­i­stan, Lithuania, Romania, Poland, and Thailand (U.S. Senate, 2014). Many of the victims ­were then subjected to torture. The lucky ones ­were l­ ater released, although the U.S. government publicly refused to acknowledge their cases, or denied any involvement. Many allied governments began to refuse to extradite suspected terrorists to the U.S. due to fears of mistreatment by the CIA. Some even went so far as to prosecute Ameri-

Pinochet Pre­ce­dent 

29

can agents in cases of po­liti­cal disappearances within their borders. In 2009, twenty-­t hree CIA agents w ­ ere convicted in absentia by an Italian court for the 2003 kidnapping an Egyptian-­born cleric as part of the rendition program (Ghosh, 2009). Osama Moustafa Hassan Nasr, an imam at a Milan mosque, was grabbed off the street, put on a plane at the U.S. air base in Aviano, and taken to Egypt, where he was allegedly tortured. The CIA refused to publicly react to the case or the 2009 verdicts. In 2013, an Italian appeals court convicted three more Americans, including a former CIA Rome station chief, in the same case. In a similar case, the Eu­ro­pean Court of H ­ uman Rights (ECHR) ruled in 2012 that a German man, Khaled el-­Masri, who was mistaken for a terrorist, had been kidnapped by the government of Macedonia and handed over to the CIA. He was then “brutalized and detained for months” in Af­ghan­i­ stan (Kulish, 2012). The CIA, once again, refused to comment on this case. El-­Masri, a German citizen, was apprehended in 2003 when Macedonian police confused him with an al-­Qaeda operative who had a similar name. A ­ fter being handed over to the CIA, he was “severely beaten, sodomized, shackled and hooded” according to the ECHR, treatment that the Eu­ro­pean Court said amounted to “torture” (ibid.). ­After four months in captivity in Af­ghan­i­stan, el-­Masri was flown to Albania and then dumped on a remote mountainside road. The ECHR ordered Macedonia’s government to pay el-­Masri $78,000 in damages (Charlton, 2012). Nasr in Italy and el-­Masri in Macedonia ­were just two cases among hundreds of ­others. In Pakistan alone, the list of victims from enforced disappearances related to the war on terror numbers over forty (Shafiq, 2013: 390). The prob­lem of po­liti­cal disappearances has carried over from the Cold War era to the days of the post-9/11 wars on terror. Likewise, efforts to combat this par­tic­u­lar form of ­human rights abuse also are evident during both time periods. The UN Commission on ­Human Rights established a Working Group on Enforced or Involuntary Disappearances in 1980. The Working Group assists families in determining the fate or whereabouts of their members who have dis­appeared. In 1992, the UN General Assembly a­ dopted the Declaration on the Protection of All Persons from Enforced Disappearance. The Working Group monitors state be­hav­ior in relation to the declaration to help governments fulfill their obligations. In 1994, the Organ­ization of American States a­ dopted the Inter-­American Convention on Forced Disappearances of Persons. The OAS convention has been ratified by fifteen states, including Chile (in 2010) and Guatemala (in 1999), but not the United

30 Chapter 1

States. In 2006, the UN General Assembly approved the International Convention for the Protection of All Persons from Enforced Disappearance. The UN convention on disappearances has been ratified by fifty-­seven states (including Chile in 2009), and signed (but not yet ratified) by another thirty-­nine states. The United States has neither signed nor ratified the UN convention on disappearances. The Convention for the Protection of All Persons from Enforced Disappearance also created a Committee on Enforced Disappearances to monitor state reports and to facilitate implementation of the UN convention. The UN convention contains provisions for interstate complaints and for individual petitions charging violations of the convention. The Pinochet pre­ce­dent is an example of global governance as synergy. Efforts to create new international laws and international bodies to prohibit po­liti­cal disappearances, like the creation of the ICC, represent global governance of a dif­fer­ent type. Unlike the Pinochet pre­ce­dent and GG as synergy, creation of new ­legal regimes and new international organ­izations is GG in the form of institution building. GG as synergy seeks to produce desired outcomes in a given issue area (such as impunity for dictators) when a centralized authority does not exist to do the job (resulting in the Pinochet pre­ ce­dent). GG as institution building seeks to create a new centralized authority (such as the ICC) for a given issue area (such as genocide) resulting in new laws and new IOs. Global governance as institution building addresses an area where ­t here is no centralized authority and creates a new authoritative governing body. Both types of global governance for h ­ uman rights—­GG as synergy, and GG as institution building—­are impor­tant and salient to the challenges of ending ­human rights violations in the twenty-­fi rst ­century. Both types of global governance have met with some success in dif­fer­ent contexts at dif­ fer­ent times. The case studies that follow in Chapters 2 through 6 ­will take us through numerous examples of both forms of global governance. The final chapter of this book ­will then assess the relative successes and failures of ­t hese two types of global governance. Additional examples of global governance as synergy can be found in the following discussions of corporate social responsibility (Chapter 3) and the Better Factories Cambodia program (Chapter 4). Examples of global governance as institution building are to be found in the extraterritoriality of the U.S. Alien Tort Claims Act (Chapter 3), and u ­ nder the ­legal regimes created by ­human rights treaties (Chapter 6). But first we turn to global governance

Pinochet Pre­ce­dent 

31

in the area of indigenous rights in the next chapter. Indigenous groups are another global population of dispossessed and disenfranchised ­peoples, much like the victims of enforced disappearance. Efforts to promote and protect indigenous rights also partake of both forms of global governance. The Inuit Circumpolar Council often engages in synergistic efforts to promote indigenous rights. The UN Declaration on the Rights of Indigenous ­Peoples and lawsuits detailing abuses of indigenous rights brought before the Inter-­ American Court of H ­ uman Rights both represent efforts at GG institution building in the areas of international law and international organ­ization. ­These three arenas for pursuit of indigenous rights—­t he Inuit Circumpolar Council, the UN Declaration on the Rights of Indigenous P ­ eoples, and the Inter-­American Court of H ­ uman Rights—­are the primary focus of Chapter 2.

Chapter 2

Indigenous Rights and Global Governance

“Global governance” is a widely used and often contested term. It is a term that means dif­fer­ent ­t hings to dif­fer­ent ­people. Despite the conflicting and often politicized uses of the term, three key dimensions of global governance are directly relevant to this study. One approach to global governance (perhaps the oldest) highlights post–­Cold War diplomatic efforts by international organ­izations to manage prob­lems in global affairs. In 1995, the United Nations Commission on Global Governance published its initial report expressing hopes that the UN would become a stronger and more influential body. Supporters of the UN pop­u ­lar­ized the term b ­ ecause they wanted to distinguish between “global governance” and “global government.” “Governance” is a broader term than “government.” It is meant to highlight global po­liti­cal management that falls short of the formal powers and procedures of a government. Global governance is not about a world state or the creation of some supranational body that would have power or sovereignty above that of nation-­states. Subsequent efforts for global governance of this sort regarding ­human rights would include the creation of the International Criminal Court, or the development of the Responsibility to Protect. A second usage of the term “global governance” is primarily theoretical. International relations theorists such as James Rosenau (1997, 2003) employ the theoretical dynamics of GG as a way to model the international system. Theories of global governance draw our attention to the importance of nonstate actors and global civil society. In this sense, global governance is an analytic concept that builds on and expands prior neoliberal theories of international regimes or globalization. Other notable theorists from this

Indigenous Rights  33

school of thought include Ba and Hoffmann (2005) and Michael Barnett and Raymond Duvall (2005). A third aspect of global governance consists of empirical observation and data collection largely based on case studies. This approach to GG seeks to demonstrate, with factual evidence, that new global po­liti­cal trends exist (ones we can call “global governance”), and t­ hese trends can be identified with some degree of scientific precision. Perhaps the best of ­t hese studies is Hoffmann’s treatment of global governance in environmental politics (2005). Hoffmann defines global governance in general as the management of global issues within a po­liti­cal space that has no single centralized authority. In this text, I ­w ill largely follow Hoffmann’s definition of the term “global governance.” Global governance for indigenous rights is a topic that cuts across all three of t­ hese dimensions of GG (international organ­izations, international relations theory, and empirical studies). The first case study presented in this chapter (the Declaration on the Rights of Indigenous P ­ eoples) is closest to the GG lit­er­a­tures on policy within the UN system. The second case looks at the Inter-­American Court of ­Human Rights (IACHR), presenting empirical evidence of widespread and egregious violations of indigenous rights. The final case study of this chapter (on the Inuit Circumpolar Council) pre­sents empirical evidence as well, but it also leads directly into a discussion of sovereignty theory. I begin the case studies with a review of the diplomatic debate to establish indigenous rights (the DRIP), move through gross violations of indigenous rights in the Amer­i­cas (the IACHR), and conclude with a description of a new exemplar for indigenous rights (the Inuit Circumpolar Council) that also serves to recast indigenous claims to sovereignty. Indigenous rights are a relatively new area in the post–­World War II global campaign to secure h ­ uman rights and fundamental freedoms for all of the world’s p ­ eoples. Attention to indigenous rights at the UN began in the 1970s. Foreign policies of the major powers have been forced to address international rights for indigenous p ­ eoples since the 1990s. This chapter w ­ ill discuss indigenous rights within the broader context of global governance. First, I ­will review the consensus on how to define ­people who are properly considered to be “indigenous.” I ­will also summarize t­ hose rights that are most impor­ tant to indigenous ­peoples. Indigenous rights are, in analytical terms, a subset of the more generic category of collective rights. Therefore, as I discuss indigenous rights, I w ­ ill also address the debate involving individual rights versus collective rights.

34 Chapter 2

The bulk of this chapter studies the global governance of indigenous rights in three par­tic­u­lar areas. The first example is the creation of the 2007 UN Declaration on the Rights of Indigenous ­Peoples (DRIP). The UN’s DRIP was approved a­ fter a long and tortuous drafting pro­cess that was largely opposed by the United States. By looking at the history of the UN’s declaration on indigenous p ­ eoples, we can get a sense of the global politics of indigenous rights, especially the central disputes between indigenous groups and the states that have opposed formal recognition of international indigenous rights (e.g., the United States, Canada, New Zealand, and—­prior to 2009—­Australia). A second example of indigenous rights and global governance involves violations of indigenous rights that have come before the Inter-­A merican Court of ­Human Rights. The Inter-­American Court is the most impor­tant body within the Organ­ization of American States (OAS) when it comes to promotion and protection of h ­ uman rights. The UN Declaration on the Rights of Indigenous ­Peoples represents an attempt to develop international law as a way to protect indigenous ­peoples. Bringing charges of indigenous rights violations against governments at the OAS court is an effort to use regional organ­izations to protect indigenous ­peoples. Both the 2007 Declaration on the Rights of Indigenous P ­ eoples and the cases before the OAS court pursue global governance of indigenous rights through existing institutions (international law and regional courts, respectively). A third case looks at attempts by a group of indigenous p ­ eoples to create a new international regime that protects their interests. This new regime is the Inuit Circumpolar Council. Assessing the work of the Inuit Circumpolar Council allows us to begin an evaluation of the relative successes and failures for global governance and ­human rights. A more in-­depth analy­sis of the reasons for success in some areas and failure in o ­ thers w ­ ill be the subject of Chapter 7.

Defining the Term “Indigenous” and Listing the Most Impor­tant Indigenous Rights As we ­shall see in the context of discussing the UN Declaration on the Rights of Indigenous P ­ eoples (below), defining which groups qualify as “indigenous” is itself a po­liti­cally charged issue. The 2007 DRIP avoided this prob­lem by simply omitting any definition of “indigenous ­peoples” from its text. African governments in par­tic­u ­lar have raised objections to the most commonly used definition of the term “indigenous.” Nonetheless, this

Indigenous Rights  35

chapter w ­ ill use as a working definition the broad consensus among scholars and indigenous ­peoples themselves regarding the proper designation of the indigenous. The most common way to define indigenous ­peoples points to three key characteristics (Hannum, 2003). Indigenous p ­ eoples are t­ hose who identify themselves as indigenous, established their cultures and social institutions prior to Eu­ro­pean colonialism, and continue to maintain (as best they can) ­t hose traditional precolonial ways of life. They are “distinct from the dominant society that surrounds them, including practices such as communal owner­ship of land and resources, and a spiritual attachment to the territory in which they live” (ibid.: 72). This definition seeks to distinguish indigenous groups from broader (and more numerous) groups such as ethnic minorities. While all states contain minority groups, not all states contain indigenous ­peoples. In addition to the differences of language or religion that usually separate ethnic minorities from their respective national majorities, indigenous ­people as a group also suffer from widespread and consistent inequalities in society and in the economy. The International L ­ abour Organ­ ization (ILO) defined indigenous ­peoples in ILO Convention No. 169, which points to the “social, cultural and economic conditions [that] distinguish them from other sections of the national community” (ILO, 1989). The social and cultural discrimination suffered by indigenous ­peoples exists in addition to the linguistic and religious cleavages that help to define ethnic minorities. Defined in this way, the indigenous would include groups like Native Americans or the “scheduled tribes” recognized in India’s constitution, but would not include ethnic groups such as the Kurds in Iran, Iraq, and Turkey. Estimates of total indigenous population range as high as 370 million ­people in over seventy countries (Rizvi, 2009). In the Amer­i­cas alone, they number over 30 million (Inter-­American Commission, 1989). The rights that are most impor­tant to indigenous p ­ eoples are t­ hose protections that help them to secure their unique cultures, their resources, and their habitats (e.g., a protected living space). The 2007 UN Declaration on the Rights of Indigenous P ­ eoples establishes numerous indigenous rights within its forty-­five articles. Articles 6 and 7 of the DRIP proclaim collective rights to keep indigenous ­peoples f­ree from genocide and “ethnocide.” Article 12 identifies the indigenous right to develop and participate in traditional cultures. Article 14 recognizes the right to transmit traditional indigenous cultures to f­uture generations. Further, Article 4 defends the rights of all

36 Chapter 2

indigenous to participate in both their traditional cultures and the surrounding dominant (nontraditional) culture. Cultural autonomy for the indigenous extends to the areas of language (Article 17)—­including education in their ­mother tongue (Article 15)— freedom from forced cultural assimilation (Article 7 again), religious freedom (Article 13), and intellectual property rights (Article 29). Land rights and protection for indigenous owner­ship of natu­ral resources are spread throughout numerous sections of the DRIP. Article 10 prohibits forced relocations of indigenous groups or relocation without informed consent. Article 23 recognizes an indigenous right to development. Articles 25 and 26 seek to protect the “distinctive spiritual” relationships between the indigenous and their territories, as well as their right to own the lands and resources within territories where they have traditionally resided. Article 27 calls for restitution or fair compensation in cases where the indigenous have had their land or resources “confiscated, occupied, used or damaged without their ­free and informed consent.” The most controversial issue regarding indigenous po­liti­cal rights is the ­matter of self-­determination. Article 3 of the DRIP proclaims an indigenous right to self-­determination. Po­liti­cal autonomy for the indigenous is further elaborated in Article 19, which calls for their participation “at all levels of decision-­making,” and in Article 20, which requires their input into any “legislative or administrative mea­sure that may affect them.” However, Article’s 3’s assertion of self-­determination for the indigenous is l­ imited by Article 46: “Nothing in this Declaration may be interpreted as . . . ​authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or po­liti­cal unity of sovereign or in­de­pen­dent states” (DRIP, Article 46). Article 46 clearly prohibits indigenous secessionist movements. Power politics also prevent self-­determination for the indigenous from taking the form of full sovereignty or a right to secession. ­There is only one recent case on rec­ord where an indigenous group attempted to declare their full po­liti­ cal in­de­pen­dence from the state that had sovereignty over them. This was the (failed) attempt by the Tuva tribes in Siberia to secede from the Rus­sian Republic following the collapse of the old Soviet Union ­after 1991 (McMullen, 1993). The aborted attempt by the Tuva is the exception that proves the rule. Self-­determination for indigenous ­peoples, although broadly proclaimed in Article 3 of the UN declaration, in practice means that the indigenous have the right to local self-­rule and national participation in government institu-

Indigenous Rights  37

tions that directly affect them. The fact that indigenous ­people do not want and realize they cannot have full po­liti­cal sovereignty and in­de­pen­dence makes many of the U.S. government’s arguments against the DRIP spurious (see below). Article 31 of the declaration details self-­determination (“autonomy”) for the indigenous almost exclusively in terms of “internal and local affairs.” ­There is no mention of in­de­pen­dence or sovereignty. ­These m ­ atters ­will be discussed at greater length within the context of the politics of the DRIP (below). Before turning to the drafting of the DRIP, however, a brief review of the concept of collective rights is in order.

Indigenous Rights as Collective Rights Most rights enjoyed by indigenous ­peoples are individual rights, or the same rights to which all ­people are entitled. The right to vote, ­free speech, the right to run for office, prohibitions against torture, nondiscrimination—­t hese are all examples of individual rights, rights that all ­human have as individuals. In order to fully enjoy a life of dignity, however, indigenous p ­ eoples are also entitled to certain collective rights, and collective politico-­legal protections for t­ hose group rights. Group rights, also known as collective rights, are rights that are necessarily possessed and exercised by h ­ uman collectives. Indigenous groups are, in this impor­tant sense, right-­and-­duty-­bearing units. As Michael Freeman (1995: 40) points out, “indigenous p ­ eoples . . . ​are nations without states, [they] have been variously conceptualized by [Western] liberal states as alien ­peoples, as minorities with special rights, and as aggregates of individuals, but rarely with re­spect for e­ ither their collective values or rights.” Collective rights protect collective interests. Indigenous ­peoples have many collective interests, including a collective interest to protect their inherited cultures. The DRIP asserts that indigenous ­peoples “possess collective rights which are indispensable for their existence” (preamble annex, para. 22). Indigenous rights that are essentially collective are the best examples of group rights. Not all groups qualify for group rights (as do indigenous tribes). ­Those groups that have the strongest claim to group rights share characteristics in three primary areas: they are self-­defining, they meet certain practical standards, and they meet specific historical criteria. Groups that are entitled to group rights share certain relatively unique social, cultural, and historical features. First of all, collectives have a stronger

38 Chapter 2

claim to group rights if t­ hose groups are self-­defining. Groups that are self-­ defining have a strong claim to group rights (Van Dyke, 1982). A group may be self-­defining in several senses. It has an internal sense of belonging together, a sense of solidarity. It shares a common heritage and a common destiny that is clearly distinct from the heritage or destiny of o ­ thers who are not in that group (ibid.: 32). Members of the group tend to think of themselves and their personal identity largely in terms of their membership in the group (32–33). The group has an impor­tant role to play in the socialization and upbringing of its members. Groups are also self-­defining when ­t here are clear criteria for membership in the group (such as race or language). In terms commonly used by the group rights lit­er­a­ture, t­ hese groups are self-­defining in the sense that they are “minorities by ­will” (Jackson-­Preece, 2003). They are minorities that “want to preserve their distinctiveness as unique ethnic [and] cultural . . . ​communities within the territory of the state but are instead subject to majority campaigns of assimilation, expulsion, or, at the most extreme, genocide” (ibid.: 55). Indigenous p ­ eoples qualify for group rights, in part, b ­ ecause they are both self-­defining and minorities by w ­ ill. U.S. court cases tend to refer to such groups as “cognizable” groups. ­There are also certain practical considerations that give groups such as indigenous p ­ eoples a stronger claim to group rights. Th ­ ese are groups that have a reasonable chance to preserve and protect themselves (Van Dyke, 1982: 32). Size does ­matter when considering group rights ­because larger groups are better able to ensure their own long-­term survival (ibid.). Another practical consideration is the extent to which the group is effectively or­ga­nized. Groups such as the indigenous have a stronger claim to group rights when they are effectively or­ga­nized, when the group is capable of acting as a unit, and when it can assume responsibilities as a unit. B ­ ecause indigenous groups can meet t­ hese practical tests, their claims for protection via group rights are enhanced. Another set of criteria for establishing a legitimate claim to group rights has to do with history. Indigenous p ­ eoples have a strong claim to group rights ­because they have a long history of being treated as a group by outsiders. Individuals in the group have been subjected to past discrimination ­because of their status as indigenous natives. Through no personal fault of their own, individuals have been mistreated merely ­because they belong to an indigenous group. Groups such as the indigenous that have a long history of being treated badly have built-in justifications for protection of their ­human rights and fundamental freedoms through the vehicle of group rights. Unfortu-

Indigenous Rights  39

nately, in the case of indigenous groups, such mistreatment has often escalated to the level of genocide. In this sense, indigenous groups are also “minorities by force” (Jackson-­Preece, 2003). They are minorities by force ­because “the majority deliberately differentiates between itself and members of the minority by, for example, calling attention to ascriptive differences in terms of race, ethnicity, language . . . ​and so forth, and uses t­ hese characteristics as the basis for oppression designed to perpetuate the separation of the two communities” (ibid.). Critics of group rights, such as the George  W. Bush administration (Position of the United States, 2007) and Jack Donnelly (2003: 209), often claim that group rights are too problematic ­because such critics believe it is too difficult to identify with precision just exactly which groups are entitled to group rights. However, such basic questions w ­ ere answered long ago in the seminal studies of Vernon Van Dyke (esp. 1977, 1980, and 1982). More recent works by Freeman (1995), Gene Lyons and James Mayall (2003), and Miodrag Jovanovic (2005) represent additional definitive answers to the alleged problematic questions about collective rights. Indigenous rights are the most obvious examples of legitimate and undeniable claims to group rights. Indigenous p ­ eoples qualify for protection through group rights ­because they meet all of the standards of self-­definition, practicality, and historical considerations listed above. Indigenous groups are both minorities by ­will and minorities by force. They are in all senses “multidimensional groups” (Svensson, 1979) b ­ ecause indigenous groups meet all of the requirements for inclusion ­under group rights protection. Donnelly, the most widely cited scholarly critic of group rights, admits as much. Donnelly has an admitted bias in ­favor of individual rights to the exclusion of group rights based on Western liberal philosophy (2003: 204ff.). However, Donnelly makes an exception to his position against group rights in the case of indigenous ­peoples, where even he is forced to admit that they have a legitimate claim to collective rights (215–217). Donnelly grants the need for group rights to protect the indigenous b ­ ecause they are “globally subject to threats to their autonomy, equality and dignity that cannot be countered by existing [individual] rights to nondiscrimination and freedom of association,” hence widespread violations of indigenous rights represent “a standard threat to ­human dignity that deserves recognition and protection through internationally recognized [collective] ­human rights” (215). ­These are theoretical considerations that help clarify which groups qualify for group ­human rights. Such criteria establish indigenous groups as a

40 Chapter 2

paradigmatic case for group rights. To move to a less abstract and more po­ liti­cal dimension of indigenous rights, reviewing the creation of the UN’s DRIP serves as a useful next step.

The Politics of the Declaration on the Rights of Indigenous ­Peoples Rights for indigenous ­peoples ­were not directly addressed by the key post–­ World War II international agreements on ­human rights. The Universal Declaration of ­Human Rights (1948), the Covenant on Civil and Po­liti­cal Rights (1966), and the Covenant on Economic, Social, and Cultural Rights (1966) fail to mention indigenous rights. The UN started to correct this oversight during the 1980s and 1990s; and ­t hose efforts culminated with the drafting of the Declaration on the Rights of Indigenous P ­ eoples. The Declaration on the Rights of Indigenous ­Peoples was approved by the UN General Assembly on 13 September 2007. One hundred forty-­t hree UN members voted in ­favor and four states voted against the DRIP. The four no votes came from Australia, Canada, New Zealand, and the United States. In 2009, the government of Australia changed its position and announced its support for the DRIP. States that oppose the DRIP share concerns that “explain” their opposition. The U.S. government has often been the point man in presenting ­t hese points of contention. U.S. objections to the DRIP include the declaration’s lack of a definition for the term “indigenous” in par­tic­u­lar and U.S. reservations about collective rights in general. The United States and its allies in opposition to the DRIP also feel that the declaration asserts a right to indigenous self-­determination that is too broad, especially in regard to land rights and indigenous input into policy that directly affects their tribal interests. Th ­ ese ­matters ­will be reviewed in detail ­after a brief summary of other events that preceded General Assembly approval of the declaration in 2007. UN attention to indigenous issues stretches back at least as far as 1982. During that year, the UN’s Economic and Social Council (ECOSOC) created a Working Group on Indigenous Populations. The Working Group was established as a unit within ECOSOC’s Subcommission on Prevention of Discrimination and Protection of Minorities.1 The Working Group has been described as “the single most significant forum in which indigenous issues are considered by the United Nations” (Hannum, 2003: 82). The Working Group includes representatives from governments, indigenous groups, and relevant nongovernmental organ­izations (NGOs). The Circumpolar Coun-

Indigenous Rights  41

cil (discussed below) is a member of the Working Group. It serves as a forum for the airing of grievances and discussion of par­tic­u­lar cases of indigenous rights violations. Perhaps its most significant work has been the creation of the DRIP text. In 1993, the Working Group began its work on writing the declaration, and the text was largely completed by 1994. However, the draft Declaration on the Rights of Indigenous ­Peoples languished in committee for over a de­ cade (prevented from coming to a vote before the General Assembly) due to opposition from the United States and the rest of the anti-­DRIP gang of four. The UN declared 1993 to be the International Year for the World’s Indigenous P ­ eople, and the years 1994–2004 w ­ ere set as the First International De­ cade of the World’s Indigenous ­People. The Second International De­cade of the World’s Indigenous ­People concluded in 2015 (2005–2015). The UN declares such years and de­cades for targeted groups (indigenous p ­ eoples, ­women, c­ hildren, and o ­ thers) in order to bring more global attention to their plights. In the year 2000, ECOSOC established the Permanent Forum on Indigenous Issues, consisting of sixteen international experts, eight of whom are selected by member governments and eight who are selected by indigenous groups. The Permanent Forum’s mandate is to “assist UN agencies that deal with indigenous ­matters and disseminate information on indigenous issues” (Lauderdale and Natividad, 2010). The office of the UN Special Rapporteur on the ­Human Rights and Fundamental Freedoms of Indigenous P ­ eople was created in 2001. Special rapporteurs act as high-­level investigators and trou­ ble shooters within the UN system. A Task Force on Indigenous W ­ omen was created in 2004 to address issues of gender in­equality and discrimination against indigenous ­women. While ­these w ­ ere encouraging steps in relation to UN action on indigenous issues, continued opposition from the CANZUS group (Canada, Australia, New Zealand, and the United States) prevented timely completion of the DRIP. Delays in finalizing the DRIP ­were largely due to the contentious debates between indigenous NGOs advocating the treaty and the CANZUS group standing in opposition to vari­ous parts of the document. The group of four wanted a definition of the term “indigenous” included in the treaty. Indigenous groups and African governments w ­ ere united in their positions against defining the indigenous. African states as a group believe that any definition of “indigenous” would be problematic for their nations. They want to avoid the possibility that virtually all African tribes could claim indigenous status, thereby

42 Chapter 2

increasing the rights-­protection burden for their governments, especially in the sub-­Saharan region. Indigenous NGOs feared that any definition of the term “could be misused by states” (Minde, 2008: 83). Indigenous groups in the Amer­i­cas feared that the CANZUS group was pushing for an explicit definition primarily as a way to limit t­ hose p ­ eoples who could claim indigenous status. A narrow definition of the term “indigenous” might be used to exclude par­tic­u­lar individuals or groups from the protections of the treaty. According to Helen Quane (2005: 658): “ ‘the historical and ethnic complexity’ involved would make it impossible to devise a definition that would cover all appropriate situations, and, consequently, a universal definition could be inflexible and exclusionary.” The final decision was to omit any definition from the text, representing a minor victory for indigenous NGOs during the drafting. The two sides also disagreed on the importance of group rights in general. Voicing the opinions held by indigenous groups, the preamble annex to DRIP (para. 22) mentions collective rights in a favorable way: “Recognizing and reaffirming . . . ​that indigenous ­peoples possess collective rights which are indispensable for their existence, well-­being and integral development as ­peoples” (italics from the original). The George W. Bush administration spoke strongly against group rights: “If a collective entity or group—as opposed to individuals—­could hold and exercise h ­ uman rights, [then] individuals within ­t hose groups would be extremely vulnerable to potential violations of their ­human rights by the collective” (Position of the United States, 2007: 3). Under­lying tensions during the drafting of the DRIP grew out of the age-­ old pecking order that typifies UN proceedings. The power politics of ­t hese meetings are such that governments are given ten to fifteen minutes each to make oral pre­sen­ta­tions before the plenary sessions. Indigenous spokespersons are restricted to just three to five minutes each. All business must also be conducted in one of the six “official” UN languages or via interpretation into t­ hose languages. When an indigenous representative sought to pre­sent a tribal song in its original language, he was told by the meeting’s chair to follow UN language protocols. According to Jeff Corntassel (2007: 143), this is an example of denying the indigenous the right to speak in their own languages during the debates. Indigenous NGOs also suspected the CANZUS group of having hidden agendas and cutting backroom deals during the drafting of the DRIP. According to James Zion, a member of the Navajo Working Group (an impor­tant indigenous NGO): “the states simply ­weren’t listening and . . . ​would caucus separately to exchange their hidden agendas while leaving indigenous repre-

Indigenous Rights  43

sentatives in the dark. . . . ​Most of the state pre­sen­ta­tions w ­ ere bafflegab; the UN-­speak way of saying something impor­tant without saying anything at all” (Zion, 2000). Zion and ­ others also “complained about . . . ​ secret dealings among the states, insisting that objections [to the DRIP draft] must have a basis in international law . . . ​and criteria for changes.” The response from the chair was, according to Zion: “in a schoolmaster-­like tone that the indigenous representatives ­were mistaken in their complaints about separate discussions of the state delegates . . . ​and the chair lectured the indigenous del­e­ga­tions about how their [concerns] ­were wrong or did not conform to UN procedure” (ibid.). In terms of specifics, the CANZUS group was especially opposed to DRIP provisions for indigenous lands, resources, and policy input. CANZUS used the tactic of exaggerating the threats from the DRIP draft to their perceived national interests. Then, having overstated the dangers of the DRIP, CANZUS declared the document to be unworkable. The United States claimed that the call within the DRIP for indigenous self-­determination “could be misrepresented as conferring a unilateral right of . . . ​secession upon a specific subset of the national populace, thus threatening the po­liti­cal integrity and stability of existing UN Member States” (United States Joins Australia, 2007: 212). This assertion flies in the face of the fact that Article 46 clearly prohibits “any action that would dismember or impair . . . ​t he territorial integrity or po­liti­cal unity of sovereign and in­de­pen­dent states.” Secessionist movements are prohibited by Article 46. Glen Morris and Steven Tullberg (cited in Lam, 2000: 60) point out that indigenous groups almost never think in terms of secession, but instead seek “the ability to leverage the international recognition of self-­determination into a power to compel states to negotiate with them, on the basis of formal equality, the terms of partnership that ­will assure their physical and cultural survival.” In other words, the insistence on a right to self-­determination is a rhetorical move by the indigenous to enhance their bargaining positions vis-­à-­v is the states, while at the same time accepting Article 46 prohibitions against secession. The CANZUS group raised similar exaggerated concerns about an indigenous right to compensation for lost territories and natu­ral resources. Article 28 of the DRIP calls for redress or restitution in cases of lost indigenous territories. New Zealand feared that “the entire country would appear to fall within the scope of Article 28 on redress and compensation. The text generally took no account of the fact that land might now be occupied or owned legitimately by o ­ thers, or subject to numerous dif­fer­ent overlapping indigenous claims” (General Assembly Adopts Declaration, 2007: 7). Canada and

44 Chapter 2

the United States also referred to articles on redress and compensation as too “broad,” “unclear,” or “unworkable” (ibid.: 6). A final bone of contention for the CANZUS group arises from exaggerated claims about the declaration’s calls for an indigenous right to “­free, prior, and informed consent” (FPIC) in a l­ imited number of cases. Four articles in the DRIP call for prior consent of indigenous groups in regard to relocation, local government, presence of hazardous wastes, and development proj­ects that affect indigenous interests. Prior and informed consent suggests that the indigenous would have input into policy decisions that directly affect them, as any group would seek within a po­liti­cal system based on demo­cratic equality. The gang of four miscast the princi­ple of FPIC as conferring “veto powers” upon the indigenous, and then cited this overstated fear as another basis for rejecting the declaration. The United States has said that it “cannot accept the notion of a sub-­national group having a ‘veto’ power over the legislative pro­cess” (Position of the United States, 2007: 3). Canada asserted that “the establishment of complete veto power over legislative action for a par­t ic­u ­lar group would be fundamentally incompatible with Canada’s parliamentary system” (General Assembly Adopts Declaration, 2007: 6). Australia’s prior government claimed that f­ ree and informed consent for the indigenous “could mean that States w ­ ere obliged to consult indigenous ­peoples about e­ very aspect of law that might affect them. That would not only be unworkable, but would apply a standard for indigenous ­peoples that did not apply to o ­ thers in the population” (ibid.: 5). F ­ ree and informed consent on issues of relocation, local affairs, and toxic waste is a far cry from a “complete veto power” over “­every aspect of law.” CANZUS objections to DRIP provisions on informed consent make sense only if one adopts the exaggerated and erroneous interpretations of FPIC that came from the CANZUS group. One must also keep in mind that the DRIP is nonbinding. It is a declaration, not a formal treaty. The DRIP does not create any binding ­legal obligations for states. The DRIP, like the 1948 Universal Declaration of H ­ uman Rights, is a set of recommendations from the UN. It is impossible for a nonbinding international declaration to confer domestic “veto powers” upon any po­liti­cal actor. To fully understand the politics of the DRIP, one must also note the aspects of the declaration that the CANZUS group has not opposed. The vast majority of the articles in the DRIP concern indigenous culture, religion, and ways of life. Th ­ ere has been a notable lack of opposition from the group of four in regard to any of t­ hese aspects of the declaration. CANZUS has been

Indigenous Rights  45

vociferous and adamant in opposition to articles regarding a lack of a definition, group rights, self-­determination, and informed consent. CANZUS has been largely ­silent when it comes to indigenous religious and cultural autonomy. The primary explanatory ­factor for CANZUS opposition to some articles and acquiescence on o ­ thers is national sovereignty. Even minor threats to their interests ­will not be tolerated by the g­ reat powers if they feel that their sovereign powers over land and resources are being challenged. On the other hand, they are willing to agree to indigenous desires regarding issues that they do not see as threats to their sovereign interests. The CANZUS group has objected most strongly to t­ hose aspects of the DRIP that they perceive as threats to their territorial and plenary sovereignty. Self-­determination as l­ imited by Article 46 does not threaten the borders or territorial integrity of the group of four, but their exaggerated interpretations of the self-­determination aspects of the DRIP gives them rhetorical grounds on which to raise such fears. Similar tactics have been used to inflate the dangers of compensation for the indigenous or the call for prior consent. Overstating the dangers of self-­determination, compensation, or prior consent is a rhetorical maneuver employed by CANZUS diplomats to guard that which ­great powers value most dearly: their sovereignty. As the debate moves into areas that are less closely related to national borders, government expenditures, or restraint of state power, then the CANZUS group finds less reason to block other provisions within the DRIP. Cultural sovereignty, perhaps the most vital interest for the indigenous themselves, is of much less importance to the leaders of CANZUS. When it comes to issues involving language rights, education, traditions, and religious ceremony, most governments (including CANZUS) have ­little or no objection to proclaiming and preserving indigenous rights in ­these areas. As stated by Elsa Stamatopoulou (1994: 74): “while states u ­ nder international pressure w ­ ill more easily agree to re­spect indigenous languages or religions, land and natu­ral resources w ­ ill continue to be the battlefields of the dirty and undeclared wars against indigenous ­peoples.” More recent events indicate that the CANZUS group’s opposition to the DRIP may be waning. On 3 April 2009, a new center-­left co­a li­tion in Australia announced that it had reversed the prior government’s position. Australia now supports the Declaration on the Rights of Indigenous ­Peoples. New Zealand’s Ministry of Foreign Affairs released a statement in July of the same year saying that, “although New Zealand has not yet publicly affirmed and recognized the Declaration, the Prime Minister has indicated that he would like to see New Zealand move to support the Declaration” (Power, 2009).

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In 2010, Canada’s government claimed to be “taking steps to endorse [the DRIP] in a manner fully consistent with Canada’s constitution and laws” (Rebick, 2010). However, when Canada released its “Statement of Support” on the DRIP, it restated Canada’s “concerns with vari­ous provisions of the Declaration, including provisions dealing with lands, territories and resources; ­free, prior and informed consent when used as a veto; self-­government . . . ​ and the need to achieve an appropriate balance between the rights and obligations of Indigenous p ­ eoples. . . . ​­These concerns are well known and remain” (Canada’s Statement of Support, 2010). Fi­nally, the Obama administration said during its first term that its policy on the declaration, including any pos­si­ble changes from the Bush administration’s strident opposition, was “still u ­ nder review” (Rizvi, 2009), l­ater changing to half-­hearted support, but with no specific policy revisions (Capriccioso, 2011).

The OAS Inter-­American Court and Indigenous Rights The UN has served as an impor­tant forum for advancing indigenous rights through the 2007 declaration and other efforts. Another site of increasing importance is the Organ­ization of American States (OAS), especially the Inter-­ American Court of ­Human Rights (IACHR). This is due to the fact that “some of the world’s worst abuses of indigenous p ­ eople’s h ­ uman rights by states occur in this region [i.e., the Amer­i­cas]” (Anaya and Williams, 2001: 37). Although it has not received as much scholarly attention in general as the Eu­ro­pean Court of H ­ uman Rights, the IACHR has become the primary court for hearing cases involving rights abuses against indigenous ­peoples. ­After a summary of the OAS ­human rights machinery, I ­will pre­sent a survey of the court cases before the IACHR involving indigenous p ­ eoples. ­Those cases cover a wide range of violations of the rights of indigenous groups: rights over land and natu­ral resources; rights protecting security of the person; civil liberties; and po­liti­cal rights. The OAS system has often been overlooked and underappreciated as an innovator when it comes to international governance of rights. The OAS American Declaration on the Rights and Duties of Man was the “world’s first major international document on h ­ uman rights” (Goldman, 2009: 859). The OAS declaration was signed on 2 May 1948. It preceded the UN’s Universal Declaration of ­Human Rights (UDHR) by more than seven months. In 1960, an Inter-­American Commission on ­Human Rights was established as an “autonomous entity” within the OAS (ibid.: 862). The Inter-­American Commission was created long before the OAS American Convention on H ­ uman

Indigenous Rights  47

Rights (­adopted in 1969). ­Because it exists in­de­pen­dent of the OAS regional treaty on rights, the Inter-­American Commission has the power to address rights violations in any part of the Amer­i­cas, ­whether or not a given state has put itself ­under the jurisdiction of the OAS rights treaty. The Inter-­A merican Commission can examine individual complaints, conduct on-­site investigations of alleged abuses, and make recommendations to OAS members, and it has filed extensive public reports of its findings. The primary sanctions available to the commission are publicity and shaming. Since 1979, the commission has also referred numerous cases to the Inter-­ American Court of H ­ uman Rights. During the Cold War, the Inter-­American Commission was the most influential ­human rights organ within the OAS. It conducted dozens of investigations into the ­human rights abuses of military dictatorships during the 1970s and 1980s. Right-­wing juntas scrutinized by the commission during this time included ­those in Argentina, El Salvador, Chile, Paraguay, and Uruguay. A scathing report on the atrocities committed by the Somoza regime in El Salvador was cited by President Jimmy Car­ter when he announced an end to all military aid to that dictatorship. ­After the Cold War, the Inter-­American Commission turned its attention to rights abuses in Haiti (while a failed state), Fujimori’s autocratic rule in Peru, and abuses associated with the ongoing internal armed conflicts in Colombia and Peru. In 1969, the OAS ­adopted a binding treaty on ­human rights, the American Convention on ­Human Rights. The 1969 convention established the Inter-­ American Court of H ­ uman Rights with mandatory l­egal authority over ­t hose members that accept its jurisdiction. The 1969 American Convention and the IACHR “became the primary source of the ­human rights obligations of state parties thereto, while the American Declaration and the OAS Charter continued to define the h ­ uman rights obligations of t­ hose states not parties to the American Convention” (Goldman, 2009: 866). The Inter-­American Court can impose binding decisions on OAS members who are party to the 1969 convention. The mandate of the Inter-­American Commission extends to all OAS member states. Prior to the late 1990s, the Inter-­A merican Commission handed down “cursory statements” for three cases involving indigenous ­peoples in Brazil, Colombia, and Paraguay (Hannum, 2003: 84). The commission’s most detailed decision during the Cold War regarding indigenous rights came in the case of the Miskito Indians v. Nicaragua (1983). The commission found that Nicaragua had ­violated the rights to life and liberty for the Miskito tribe,

48 Chapter 2

but also justified forced relocation of the Indians by Nicaragua due to military conflict. A detailed discussion of that case can be found in the work of Hurst Hannum (2003). A fifth case, also involving Nicaragua, was ultimately referred by the commission to the Inter-­American Court for hearings that ­were held in November of 2000. That case is discussed in greater detail below. The 1969 convention entered into force in 1978 (­after eleven states ratified the treaty) and the IACHR began work in 1979. During the Cold War, the Inter-­American Court restricted its attention primarily to technical l­ egal ­matters, handing down advisory decisions about constitutional laws and amendments and ruling on issues such as the licensing of journalists. A ­ fter the end of the Cold War, the IACHR expanded its purview to cover a much wider range of issues, including cases involving indigenous rights. The OAS Inter-­A merican Commission now receives up to 1,400 complaints per year (most of them from nonindigenous ­people) and refers the most serious cases to the OAS court (for nations where the court can claim jurisdiction). Twenty-­five of the thirty-­four members of the OAS have ratified the American Convention and are ­under the jurisdiction of the IACHR. Of the nine member states that have not accepted binding OAS court authority, the most notable nonparticipants are the United States and Canada. The OAS court has a permanent l­egal staff of thirteen ­lawyers and, as of 2009, it was dealing with a backlog of over fifty cases (Goldman 2009). The OAS Inter-­ American Commission can be expected to refer fifteen to twenty new cases per year to the Inter-­American Court (ibid.: 883). Some of the most significant recent cases are ­those involving indigenous ­peoples. I turn now to a summary of indigenous cases before the IACHR for the years 1999–2009, according to subject area.2

Indigenous Land Rights and Control of Natu­ral Resources The first case to be heard by the Inter-­American Court in which the central issue concerned “indigenous collective rights to traditional land and natu­ral resources” was the Awas Tingni Community v. Nicaragua case (Anaya and Williams, 2001: 35). The Inter-­American Commission reported on the Awas Tingni case in 1998 and then forwarded it to the IACHR for a trial in 2000. The court handed down a decision in ­favor of the Mayagna (Sumo) tribe of Awas Tingni in August of 2001.

Indigenous Rights  49

The Awas Tingni community claimed that its rights had been v­ iolated by the Nicaraguan government’s contracts with a Korean logging com­pany. The Awas Tingni tribes charged that Nicaragua had failed to properly demarcate their traditional lands and demanded that the Korean com­pany be prohibited from logging in Awas Tingni territories. In its 2001 decision, the IACHR found that Nicaragua had v­ iolated Article 25 (right to judicial protection) and Article 21 (right to private property) of the American Convention on H ­ uman Rights.3 Nicaragua ­violated the right to judicial protection by failing to properly delimit and title the traditional lands of the Awas Tingni community. The Sandinista government in Nicaragua also v­ iolated Awas Tingni property rights by failing to demarcate indigenous lands and by granting logging concessions to the Korean com­pany without prior consultation and consent from the tribe (Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001).4 The court ordered Nicaragua to delimit, demarcate, and title the property of its indigenous communities “in accordance with their customary laws, values, customs and mores” (ibid.).5 Nicaragua was prohibited from granting any resource extraction concessions on indigenous lands to third parties, and the Nicaraguan government was ordered to pay reparations to the Awas Tingni community. The IACHR handed down two decisions in 2006 concerning indigenous ­peoples in Paraguay.6 In the case of the Sawhoyamaxa Community v. Paraguay, the court agreed with the OAS Inter-­A merican Commission (which filed the suit on behalf of the Enxet-­Lengua p ­ eople of the Sawhoyamaxa Community) that Paraguay had ­v iolated the community’s right to property and right to judicial protection. The lawsuit dated back to an indigenous claim to ancestral property that had been pending since 1991. The unresolved property issue led to further threats to the tribe’s nutrition, health, and survival, according to the OAS commission’s suit. The court’s 2006 ruling ordered Paraguay to transfer owner­ship of traditional lands to the Sawhoyamaxa Community within three years, to pay compensation through a community development fund, and to “establish a mechanism to claim restitution of ancestral lands [for] members of indigenous communities” (Sawhoyamaxa Indigenous Community v. Paraguay, 2006). In a similar case, the OAS Inter-­American Commission filed a separate lawsuit on behalf of the Enxet-­Lengua p ­ eople of the Yakye Axa Community against Paraguay, again over ancestral property rights. The court ruled in this case that Paraguay had failed to find a satisfactory solution to claims

50 Chapter 2

filed by the community in 1993, and that Paraguay had ­v iolated the indigenous ­people’s rights to judicial protection and property. The court ordered Paraguay to support the community’s basic needs, confer the tribe’s lands back to them, and help them to pay for it (Yakye Axa Indigenous Community v. Paraguay, 2006).7 A final case during this period in which the central issue was land charged that Suriname denied judicial protection and property rights to the Saramaka ­people of the Upper Suriname River.8 The state of Suriname claims that it has not ­v iolated their rights ­because it does not recognize the Saramaka as a distinct indigenous community. The OAS court declared in 2007 that Suriname had v­ iolated the rights of the Saramaka to judicial protection, judicial personality, and private property. The court ordered Suriname to delimit, demarcate, and grant collective title over the territory in question to the Saramaka ­people in accordance with their customary laws. Suriname was required to give the Saramaka “the territory they have traditionally used and occupied, which includes the lands and natu­ral resources necessary for their social, cultural and economic survival . . . ​in accordance with their customary laws and traditional collective land tenure system, and without prejudice to other tribal and indigenous communities” (Saramaka ­People v. Suriname, 2007).

Rights to Security of the Person Generally accepted as the most impor­tant area of h ­ uman rights, “security of the person” is a broad label that covers such ­t hings as the right to life (e.g., no executions without due pro­cess) and prohibitions against torture. This is also the area in which the IACHR has been most the active in protecting indigenous p ­ eoples. Several egregious cases of state violations of individual and collective security rights stand out and warrant close attention. Massacres of indigenous ­peoples have been common in the history of the Amer­i­cas. Unfortunately, such mass murder continues into the recent past. In November of 2004, the Inter-­A merican Commission asked the Inter-­ American Court to hold Guatemala’s government responsible for the massacre of 268 Maya indigenous p ­ eople in the village of Plan de Sanchez on 18 July 1982.9 The court ordered Guatemala to investigate the Plan de Sanchez massacre, identify and punish the perpetrators, and provide ­free housing and ­free medical care to the survivors of the massacre (Plan de Sanchez (Maya)

Indigenous Rights  51

v. Guatemala, 2004). The state of Guatemala was also required to pay reparations and damages to survivors and victim’s families.10 In 2002, the Inter-­American Commission filed suit before the court against Suriname for the massacre of more than forty indigenous ­people in the village of Moiwana. According to the commission, on 29 November 1986, Suriname’s armed forces killed men, ­women, and ­children of the N’djuka Maroon ­people and razed Moiwana to the ground (Moiwana Village v. Suriname, 2002). As of 2002, no one had been punished for this massacre and the survivors remained displaced. The court declared that the state of Suriname must identify, prosecute, and punish the responsible parties. The state was also ordered to recover the remains of the murdered, guarantee the safety of ­those members of the indigenous community who decide to return, make a public apology for its responsibility, build a memorial to the dead, and pay compensation (ibid.). In December of 1991, twenty members of the Paez tribe in Colombia ­were murdered by “state agents” (Caloto/El Nilo Massacre v. Colombia, 2000).11 The original petition in the Caloto massacre was filed with the OAS commission in 1992. An attempt to find an amicable settlement for the case fell apart in 1998. In the year 2000, the commission “concluded that state agents in coordination with a group of civilians v­ iolated the rights to life of twenty victims, as well as the right to physical integrity of one [survivor]” (ibid.). The Inter-­American Court then ordered the state to conduct an impartial investigation of the Caloto massacre, find and punish ­t hose responsible, and make compensation to the one survivor while also paying reparations to the families of the murdered victims. Other serious but less egregious violations have been inflicted upon the Kankuamo p ­ eople of Colombia and the Sarayaku (Kichwa) of Ec­ua­dor. Annual IACHR reports from 2009, 2007, and 2004 address the past forced displacement of the Kankuamo in Colombia. In t­ hese decisions, the OAS court has required that Colombia take proactive steps to protect the lives, personal security, and freedom of movement of all members of the Kankuamo indigenous ­people. ­Those who ­were forcibly displaced may also return to their homes, if they so wish. In its annual reports for 2004–2006, the IACHR imposed decisions that require Ec­ua­dor to “protect effectively the lives, personal integrity and freedom of movement of all the members of the Sarayaku Indigenous P ­ eople.” Ec­ua­dor was also instructed to punish ­people who made threats against individual members of the Sarayaku, remove explosives from Sarayaku lands,

52 Chapter 2

and prevent third parties from exploiting the natu­ral resources within the Sarayaku community. Other atrocities against the indigenous have been perpetrated against discrete individuals. Some of ­these violations have also come before the Inter-­A merican Court. The court’s 2006 report details the OAS Inter-­ American Commission’s lawsuit against Peru for the brutal murder of Bernabe Baldeon-­Garcia. Baldeon-­Garcia was a sixty-­eight-­year-­old peasant who, according to the court, was tortured and killed by the Peruvian military on 25 September 1990. Baldeon-­Garcia was arrested by soldiers during a counterinsurgency operation, taken to a church, and “tied up with wires and hung upside down to be subsequently whipped and submerged in ­water tanks” (Baldeon-­Garcia v. Peru, 2006). He ­later died from this mistreatment. The court agreed with the commission’s charges that ­t hese events ­were part of “a recurrent pattern of violations . . . ​[and] abuses committed by the armed forces during a domestic conflict” (ibid.). The court ruled that Peru had v­ iolated the rights to life, personal integrity (i.e., personal security), fair trial, and judicial protection. Peru also failed to uphold its duty to investigate the incident and punish torture as required by the Inter-­A merican Convention to Prevent and Punish Torture. The court ordered the state to identify, prosecute, and punish the perpetrators, and to pay reparations to the victim’s f­ amily. The forced disappearance of Maya indigenous po­liti­cal leader Florencio Chitay Nech on 1 April 1981 in Guatemala City brought about a 2009 lawsuit by the Inter-­American Commission against the state of Guatemala. The commission asked the court to declare the state responsible for violations of Chitay Nech’s rights to life, liberty, and humane treatment, all of which are guaranteed by the American Convention on ­Human Rights. The commission also charged that Guatemala had ­violated its obligations u ­ nder the Inter-­ American Convention on Forced Disappearances of Persons, specifically with regard to the right to a fair trial and the right to judicial protection (Chitay Nech v. Guatemala, 2009). Two summaries in the IACHR 2009 annual report involve the alleged rape and torture of indigenous w ­ omen in Mexico. In both cases, the Inter-­ American Commission filed suit against the state of Mexico for violating rights to humane treatment and judicial protection, and the right of privacy, all of which are guaranteed by the American Convention.12 The commission also charged that, in both cases, Mexico failed to comply with its obligations

Indigenous Rights  53

­ nder the Inter-­American Convention for the Prevention, Punishment and u Eradication of Vio­lence against W ­ omen, and the Inter-­American Convention to Prevent and Punish Torture.13 In both cases, the commission asked the court to require that Mexico pay reparations to the next of kin. Both cases remain pending at the time of this writing.

Violations of Indigenous Civil and Po­liti­cal Rights In the areas of civil rights (such as equal protection before the law) and po­ liti­cal rights (such as the right to run for office) a single indigenous case came before the IACHR concerning elections in Nicaragua. In June of 2005, the court ruled that the government of Nicaragua had v­ iolated the rights of the indigenous party YATAMA (Yapti Tasba Masraka Nanih Asla Takanka) by excluding its candidates from municipal elections held in November of 2000. The court cited decisions by Nicaragua’s Supreme Electoral Council as evidence that the right to participate in government had been denied to YATAMA. YATAMA had also been denied its rights to equal protection and judicial protection in this case (YATAMA v. Nicaragua, 2006). YATAMA members ­were prevented by the Electoral Council from ­running for the offices of mayor, deputy mayor, and councillor in Nicaragua’s North Atlantic and South Atlantic Autonomous Regions. The court ordered Nicaragua to publish its judgment on the state’s official website and in national newspapers. The state was required to broadcast the court’s ruling in En­glish, Spanish, and indigenous languages throughout its Atlantic coastal regions. Nicaragua was ordered to reform its Electoral Act No.  331 to ensure that members of indigenous communities have an equal right to participate in the electoral pro­cess. New legislative mea­sures w ­ ere also demanded so that the decisions of the Supreme Electoral Council would be easier to monitor and appeal. Fi­nally, Nicaragua was ordered to pay reparations to YATAMA for the costs of domestic and regional l­egal proceedings.14

Indigenous Cultural Autonomy at the Inter-­American Court OAS Inter-­American Court decisions between 1999 and 2009 lack any cases regarding the cultural rights of indigenous p ­ eoples. Disputes over cultural traditions are notable by their absence before the OAS court. Of course, this

54 Chapter 2

does not necessarily mean that no violations of indigenous cultural rights have occurred in the recent past. ­There is a long history in the Amer­i­cas of indigenous ­peoples being denied their rights to practice certain religious ceremonies and to use their own languages in local schools. At the global level, CANZUS states have often forced the cultural assimilation of indigenous tribes, targeted “barbarous” indigenous languages for extinction, and even kidnapped indigenous c­ hildren to send them to government-­run boarding schools.15 However, no rights violations of this sort have been brought before the IACHR. ­There is a basic prob­lem of jurisdiction when it comes to indigenous cultural rights and regional courts. The IACHR derives its power and mandate from the OAS American Convention on H ­ uman Rights. The convention primarily protects civil liberties and po­liti­cal rights. Cultural rights are not directly proclaimed in the American Convention. Articles 45 and 46 of the convention call on member states to set high cultural standards, to encourage the development of culture, and to “enrich the cultural heritage” of their p ­ eoples. But ­there is no mention in the American Convention of the types of cultural rights that are replete within the UN Declaration on the Rights of Indigenous ­Peoples. A protocol to the American Convention that covers economic and social rights (the 1999 Protocol of San Salvador) does proclaim a right to the “benefits of culture” in Article 14, but again this is not the same as the rights to indigenous culture laid out in the DRIP, such as the rights to protect traditional indigenous cultures and to transmit them to ­future generations, the right to education in an indigenous ­mother tongue, and freedom from forced cultural assimilation. Such cultural protections are perhaps the most impor­ tant h ­ uman rights for most indigenous in terms of their day-­to-­day lives. However, they are not the types of rights that are likely to be the subject of IACHR lawsuits. On the other hand, the OAS court has indirectly contributed to the protection of indigenous cultures. The court helps to shelter indigenous traditions when it forces states such as Nicaragua, Paraguay, and Suriname to return ancestral territories to indigenous groups. The court recognizes that “the territory they have traditionally used and occupied . . . ​includes the lands and natu­ral resources necessary for their . . . ​cultural and economic survival” (Saramaka ­People v. Suriname, 2007). Protecting indigenous habitats is a necessary condition for ensuring their traditions (religious, ceremonial, and so

Indigenous Rights  55

on). Protecting indigenous ways of life (hunting, fishing, subsistence agriculture, and so on) also requires protecting indigenous habitats.

Summary of the OAS System: The IACHR and Global Governance A review of OAS court cases from 1999 to 2009 reveals a long list of egregious violations of indigenous rights: massacres, rapes, murders, use of torture, forced disappearances, forced displacement, dispossessions of land and natu­ral resources, lack of judicial protections, lack of fair t­ rials, antidemo­ cratic repression, and electoral discrimination. This sad state of affairs emphasizes the need for stronger domestic and international laws to protect the indigenous. The UN’s 2007 declaration is a good first step ­toward identifying indigenous rights. However, ­t here is still a long way to go. The work of the IACHR in building this unique set of case law for indigenous rights has significant global governance implications. It fits best within the category of “global governance as institution building” introduced in Chapter 1 (and discussed in detail in Chapter 7; see Figure 4). The IACHR is institutionalizing a set of minimum standards for l­egal protection of indigenous rights that OAS states u ­ nder its jurisdiction w ­ ill be compelled to observe. The power politics dynamic of the OAS ensures that the IACHR has no jurisdiction over the United States or Canada. However, even ­t hese more power­f ul states are not immune to the pressures marshaled by indigenous groups. Huge monetary settlements by the United States and Canada have recently been forced on t­ hose governments to compensate for a long list of ­human rights abuses against indigenous tribes. Th ­ ose settlements w ­ ill be detailed in the conclusion of this chapter when I discuss indigenous rights, global governance, and the changing nature of state sovereignty. The work of the IACHR also clarifies the need for protecting both the individual and collective rights of indigenous nations. Unfortunately, many of the most significant rights found in the Declaration on the Rights of Indigenous ­Peoples (such as indigenous cultural rights) are not protected by binding international ­legal documents or by ­human rights courts. If and when the DRIP becomes part of customary international law (in the manner that many would argue the 1948 UDHR has now become part of customary international law), then the IACHR and other ­human rights courts may find the DRIP to be a useful supplemental basis for their decisions regarding the protection of indigenous rights. In the meantime, indigenous groups are

56 Chapter 2

taking it upon themselves to establish their own international regimes that are designed to protect their rights and their broader interests. One such regime is the Inuit Circumpolar Council.

Indigenous Rights and the Inuit Circumpolar Council The UN Declaration on the Rights of Indigenous P ­ eoples is an impor­tant, even necessary, step ­toward establishing new international law on indigenous rights. The OAS Inter-­American Court has had a significant impact in providing justice for indigenous groups whose rights have been v­ iolated. However, both of ­t hese institutions have inherent limits, particularly from the indigenous point of view. The UN and the OAS are dominated by their creators, sovereign nation-­states. They exist primarily to serve the interests of states. The UN pecking order gives less of a voice and far less power to nonstate actors such as indigenous groups. While the IACHR has been able to bring incidents of the mass murder of indigenous groups to trial, ten to twenty years can pass between the massacres and the court’s action in such cases. Indigenous groups have tried to correct this imbalance of power, in part, by creating their own transnational organ­i zations. One such body is the Inuit Circumpolar Council, established in 1977. The Inuit Circumpolar Council is a new regime in global politics, designed and controlled by the indigenous themselves. It is an international regime for creating Inuit solidarity and for governing the vast expanses of the polar region in a way that gives indigenous ­peoples more leverage vis-­à-­vis nation-­states. The most commonly cited definition of an international regime is the one offered by Krasner. A regime consists of “principals, norms, rules, and decision-­making procedures around which actor expectations converge in a given issue area” (Krasner, 1985: 1). The Inuit Circumpolar Council covers the issue area of polar politics. Its norms include indigenous self-­determination, sustainable development, and coping with the effects of climate change (e.g., global warming). Its rules require informed consent from polar indigenous groups prior to any major po­liti­cal or economic initiatives in the far north. Its decision-­making procedures are based on a demo­cratic pro­cess and regularized meetings of the Inuit indigenous tribes of the Arctic Circle. Krasner and o ­ thers developed the concept of an international regime primarily to describe the actions of nation-­states in times of economic interdependence and globalization. However, a broader approach to regimes helps to inform our understanding of nonstate actors as well, especially ­t hose who

Indigenous Rights  57

see themselves in direct competition with nation-­states (such as the indigenous). The Inuit Circumpolar Council is closest in structure to an interest-­ based “contractual” regime (Keohane, 1989). Contractual theories posit regimes as vehicles for facilitating international cooperation (in this case among the many Inuit tribes stretched out around the Arctic). Like any contractual regime, the Inuit Circumpolar Council reduces information and transaction costs, thereby promoting cooperation and producing joint gains for its members (in this case the vari­ous Inuit groups). As global politics become more interdependent, Robert Keohane argues, states have increased incentives to cooperate and create new international regimes (ibid.). The same could be said of nonstate actors such as the indigenous, especially in the case of the Inuit and the Circumpolar Council, who view themselves as having claims to the Arctic that predate and supersede any claims to that territory and its resources that are advanced by states. The Inuit Circumpolar Council was founded in Barrow, Alaska, during 1977 by Eben Hopson. It serves as a transnational advocacy network for approximately 150,000 Inuit who are spread out across Alaska, Canada, Greenland, and Rus­sia. It gives the Inuit a way to “speak with a united voice on issues of common concern and combine their energies and talents t­ owards protecting and promoting their way of life” (Inuit Circumpolar Council, 2010). The Inuit see themselves (and rightly so) as stewards of the Arctic environment. They know the circumpolar region best, which gives them legitimacy in the region that usually exceeds that of national governments. They feel that only Inuit knowledge and action can halt the environmental degradation that is being inflicted on the Arctic. The mandate of the Inuit Circumpolar Council calls on the organ­ization to promote the unity and rights of the Inuit p ­ eople; to protect the Arctic environment; and to seek full and active participation of the Inuit in all po­liti­ cal, economic, and social developments within the polar region (ibid.). The council convenes once ­every four years to elect a chair and an executive council. Inuit Circumpolar Council conferences also develop policies and adopt resolutions to guide the organ­ization over the near term. The Inuit Circumpolar Council is not to be confused with the Arctic Council. The Arctic Council is made up of eight states that stretch across the polar region. Founded in 1996 by Canada, Demark/Greenland, Finland, Iceland, Norway, Rus­sia, Sweden, and the United States, the Arctic Council serves as a forum for state interests in regard to the far north. The Inuit Circumpolar Council has permanent participant status as an NGO within the

58 Chapter 2

Arctic Council, demonstrating that t­ hese governments accept the privileged position of the Inuit in regard to Arctic politics.16 Permanent participant status was created by the Arctic Council to seek “active participation . . . ​and full consultation with the Arctic indigenous representatives within the Arctic Council” (Arctic Council Secretariat, 2007). The Arctic Council and the Inuit Circumpolar Council are, in a sense, competing forces. The former is controlled primarily by states. The latter is or­ga­nized and controlled by the Inuit tribes themselves. Inuit Circumpolar Council membership on the Arctic Council is a means for the Inuit to leverage their combined voices into greater influence over states that seek to dominate Arctic power politics. The Inuit Circumpolar Council has been an active and effective lobbyist for indigenous rights at the Arctic Council and at the United Nations. The Inuit Circumpolar Council is a member of the UN Permanent Forum on Indigenous Issues. It is also part of the UN Working Group on Indigenous Populations, which drafted the 2007 Declaration on the Rights of Indigenous ­Peoples. The Inuit Circumpolar Council worked tirelessly for over ten years to help write the DRIP and to lobby the General Assembly to adopt the final draft of the DRIP. Inuit territorial claims and their spiritual connections to their lands are based on their unique knowledge of the polar region. They have been able to force governments into action to address some of the c­ auses and effects of global warming. The Inuit Circumpolar Council has also been able to moderate the well-­intentioned (but, in its view, misguided) efforts of some animal rights activists to ban all ­whale, seal, and polar bear hunting in the Arctic. Inuit Circumpolar Council efforts in ­t hese areas are part of its larger agendas for addressing global climate change and sustainable development. Each of t­ hese areas w ­ ill be discussed in greater detail below.

The Inuit Circumpolar Council and Climate Change The Arctic is the region of the world that is the most sensitive to global warming and other forms of climate change. Small changes in rising temperatures can lead to rapid melting of sea ice and rising sea levels. Global warming is turning once-­ f rozen permafrost into decomposing, methane-­ emitting swamps. In recent de­cades, average increases of three degrees Celsius in annual temperatures have been recorded in Alaska and western Canada (Byers, 2009). Inuit hunters have died ­after falling through thinning sea ice in areas

Indigenous Rights  59

that used to be safe hunting grounds (Watt-­Cloutier, 2004). Leading figures in the Inuit Circumpolar Council say they have “never seen the [Arctic] climate change so rapidly” (Rowe, 2008). In 2011, plankton that require warm ­water to live ­were found in parts of the far north Atlantic for the first time in 800,000 years (Max, 2011). By 2015, Arctic sea ice reached a new rec­ord low, which was 400,000 miles below average (Mooney, 2016). The Arctic warms up due to climate change much faster than the lower latitudes—­a phenomenon known as “Arctic amplification”—­resulting in consequences that extend far beyond the polar region (ibid.). Alaska now has the lowest levels of sea ice ever recorded (Rice, 2018). Whalers began making written rec­ords of sea ice in 1850. Sea ice in the Bering Sea west of Alaska was less in 2018 than in any year since t­ hese written rec­ords began (ibid.). Rising sea levels have caused floods that wiped out entire Inuit villages in Alaska and Canada (Lynge, 2009). Climate change has also stimulated extreme storms, high winds, and massive erosion in the Arctic. B ­ ecause the Inuit ­people experience the effects of climate change first and most severely, their knowledge of the polar environment serves as one of the best available barometers for the impact of global climate change. They are the functional equivalent of a canary in a coal mine. The Inuit ­people, through the Circumpolar Council, serve as the planet’s early warning system when it comes to global warming. Some of the oceans and bays in Inuit territories that used to remain frozen are now open (melted) throughout the year. In ­t hose areas, traditional dog-­sled transportation is impossible and many of the traditional hunting grounds are now inaccessible. As a result, day-­to-­day Inuit life suffers, particularly nutrition. Serious social upheaval also results when tribal elders are unable to build character and instill traditional values through communal hunting. ­These trends then correlate with the rise of social crises for the Inuit. Alcoholism and drug abuse are increasing among Inuit youth, as are rates of depression and suicide. The death rate of young Inuit men is comparable to that of some in the world’s worst combat zones (Byers, 2010). Some actors, particularly ­t hose in the oil and gas industry, argue that melting of the sea ice ­will open up new economic opportunities for the ­peoples of the polar region. Onshore Arctic oil fields already contain about 10 ­percent of the world’s known petroleum reserves (Cummins, 2011). Further estimates of undiscovered oil and natu­ral gas reserves above the Arctic Circle run as high as 22 ­percent of the world’s total (Gold, 2011). Such oil and gas reserves

60 Chapter 2

that w ­ ere previously inaccessible may soon be open to development. New routes through the once-­impassable Arctic also offer the potential for a new northwest passage for transshipping. The United States and Canada are already disputing who owns t­ hose parts of the Arctic that are best suited for the new shipping lanes (Byers, 2009). Connecting the Pacific and Atlantic oceans through a polar shipping lane would effectively cut seven thousand kilo­meters off of the distance between East Asia and the eastern seaboard of the United States (ibid.). A similar shortcut between Asia and Eu­rope could cut travel time by half.17 The Inuit ­people are understandably skeptical about ­t hese rosy predictions for new economic development as the polar ice melts. Aqqaluk Lynge, a Greenland native and leading figure in the Inuit Circumpolar Council, calls the idea that the Inuit may profit from melting ice “a romantic notion from the [oil] companies that are the source of climate change” (quoted in Rowe, 2008). New shipping lanes and new oil exploration pre­sent new threats to the fragile Arctic environment. Oil spills in the Arctic would be almost impossible to clean up ­because oil dissipates and degrades very slowly (or not at all) in areas of extreme cold. The Inuit would continue to suffer worse than any other ­people from the effects of global warming. Global climate change has destroyed Inuit homes, villages, and hunting grounds. They risk their lives hunting on thin ice, and many traditional hunting grounds and fishing zones are no longer accessible. Th ­ ere is not enough sea ice to allow for traditional harvesting of fish, crabs, and marine mammals (Rice, 2018). Subsequent lack of food has impacted Inuit health, with nutrition levels dropping and illnesses spreading. This in turn has led to major social dislocations among the tribes of the circumpolar region. Their inability to hand down traditional skills to new generations leads to increased substance abuse and deaths. The survival of the Inuit as a p ­ eople is threatened by t­ hese developments. As a result, they have demanded action on the ­causes of global warming and become vocal advocates of sustainable development.

Sustainable Development, Climate Change, and Inuit Responses Sustainable development for the Inuit p ­ eople is based on subsistence hunting and fishing. Inuit life and Inuit culture depend upon the economics of subsistence hunting. For indigenous p ­ eoples like the Inuit, subsistence hunt-

Indigenous Rights  61

ing requires living in harmony with nature. The act of communal hunting and the sharing of the spoils of the hunt are necessary ele­ments of Inuit culture and identity. Seal, ­whale, and caribou hunts provide them with a deep connection to the natu­ral environment. Seals and beluga ­whales are especially impor­tant to their nutrition and tribal culture. ­These animals also have ­great spiritual and symbolic value for Inuit. When the meat from a hunt is shared with friends and kin, bonds of kinship and other social ties are reinforced. Communal hunting is also the vehicle through which tribal elders teach younger generations the values of courage, patience, and teamwork (Watt-­ Cloutier, 2004). Without the group hunts, Inuit tribes are at a loss and widespread social prob­lems such as substance abuse and clinical depression escalate rapidly. Inuit society derives much of its identity from a complex network of relationships that unite the tribe internally and tie the tribe to the animals they rely on to stay alive (Minority Rights Group, 1994). Animal rights activists, however good their intentions, threaten Inuit existence as a ­people when advancing calls for a total ban on all seal and w ­ hale hunting. A blanket ban would destroy traditional hunting practices and deny the Inuit their game. Government resource management programs too often ignore the deep bonds between the Inuit and polar wildlife. Any policy that seeks to protect Arctic animals must contain a proper consideration for the Inuit needs of survival and cultural dignity. Greenpeace and other environmental groups convinced the Eu­ro­pean Union to ban all sealskins and other seal products from 1983 to 1989. This led to a collapse in international markets for such goods. Anti-­seal-­hunting protests started with a campaign to stop the commercial harvesting of seals. It was broadened in the 1970s to include opposition to Inuit sealing. B ­ ecause of the indispensable nature of seals for the Inuit way of life, bans on hunting and consumer boycotts threaten their traditions. Re­spect for animal rights must therefore be balanced with protections for the cultural and subsistence rights of the indigenous. The Inuit believe that their unique understanding of the Arctic and their singular skills make them a valuable partner for governments and NGOs that want to rescue the polar environment and protect polar wildlife (Lynge, 2006). Not only are they the earth’s best early warning system for the dangers of climate change, the Inuit ­people are also taking a leading role by promoting sustainable development through renewable energy (Tukkiapik, 2017). They h ­ ouse the northernmost solar installations in the world (Global Catholic

62 Chapter 2

Climate Movement, 2016). In an alliance with Greenpeace, the Inuit of Nunavut, Canada, have sued to stop oil exploration through seismic blasting in Baffin Bay and the Davis Strait. Such blasting disrupts the migration paths of the w ­ hales that Inuit need to survive, and blasting sometimes even kills marine life (ibid.). The Inuit p ­ eople own two economic development organ­izations in Northern Quebec that are creating renewable-­energy power stations. The Makivik Corporation and the Fédération des cooperatives du Nouveau-­Québec (or the “Co-­ops”) have set a goal of reducing fossil fuel burning by 40 ­percent before 2030 (Tukkiapik, 2017). The Inuit consortium ­will also be selling power produced by sustainable means back to Quebec’s state-­owned power com­ pany. Both corporations are generating solar and wind power and are looking at creating power from some of the highest tides in the world. The Makivik Corporation and its partners in the Co-­ops are also admirable models of corporate social responsibility. Their leaders have said that they incorporate “social justice for the Inuit of Nunavik as part of our corporate DNA. We both treat our capital in a collective manner, and carefully for our ­future Inuit generations” (ibid.; see Chapter 3 for more on corporate social responsibility). To date, ­t hese organ­izations have “reinvested hundreds of millions of dollars into the Nunavik economy . . . ​in addition to creating thousands of jobs for Inuit” (ibid.). Inuit energy policy is an example that the rest of the world would be wise to follow. Leaders of the Inuit energy consortium are justifiably proud of the fact that: “We currently use modern solar technology to power our GPS devices, iPads, and LED lights when we are out hunting” (ibid.).

The Inuit Circumpolar Council Versus State Sovereignty An in­ter­est­ing take on the relationship between the Inuit Circumpolar Council and sovereignty can be found in the work of Jessica Shadian (2010). Shadian argues that we can “reconceptualize” state sovereignty through the lens of “Inuit governance” (2010: 1). She argues that the Inuit are a “polity” that is neither an NGO nor a state. The Inuit Circumpolar Council combines aspects of an NGO with the powers of local governments and the ability to represent the Inuit at international po­liti­cal forums such as the UN and the Arctic Council. The Inuit also share some of the classic characteristics of nation-­ states, such as a shared history and land claims to territory and resources (2). Therefore, the Circumpolar Council “transcends” traditional “state-­centered

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politics,” while it “deconstructs” and “relocates” Westphalian sovereignty. Control over territory, a hallmark of Westphalian sovereignty, is “subsumed ­under . . . ​po­liti­cal contestation” according to Shadian (1). To support her claims about indigenous sovereignty, Shadian points to several Inuit land settlements during the 1970s with the United States, Canada and Denmark/Greenland. ­These are said to be examples of how indigeneity has “refigured the po­liti­cal spaces of global politics” (Shadian, 2010: 3). The Inuit remain citizens of the United States, Canada, and Denmark, but Shadian describes Inuit polities as “constitutional hybrids” with “rights to territory and resources [as well as] cultural autonomy” (5). For example, the Inuit in Alaska have “royalty rights over the largest petroleum deposit in North Amer­i­ca.” The Inuit in Greenland can prevent “the Danish government from enacting any new legislation [regarding Greenland] without [their] consent.” In Canada, the Inuit have “autonomy over all marine areas adjacent to [some] coastlines . . . ​and mineral rights to an area covering one-­fifth of Canada” (ibid.). But Shadian could also easily be read to be advancing exaggerated claims to Inuit “sovereignty.” Mineral rights in Canada, prior consent requirements in Greenland, and oil royalties in Alaska are all impressive gains made by the Inuit in the past, but they fall far short of constituting examples of sovereign rights. Unfortunately for the Inuit, their authority over some Canadian coastlines is “subject to Canada being able to maintain control over its own Arctic coasts, namely the North West Passage” (Shadian, 2010: 5). In other words, what Canada gives to the Inuit in regard to control over resources or lawmaking authority, Canada can also take away. The same is true for the concessions made to the Inuit by the United States or Denmark. It is within the l­ egal authority of Denmark to revoke the Inuit “veto” that Shadian claims was granted in the Act on Greenland Self-­Government. Both the Inuit and Shadian want to argue that “sovereignty is a contested concept . . . ​and does not have a fixed meaning” (Inuit Circumpolar Council Ministerial Declaration, 2009, cited in Shadian, 2010: 6). It is true that sovereignty, like all po­liti­cal concepts, is contested and fluid. However, this does not mean that indigenous groups like the Inuit can properly be called “sovereign” as the Inuit Circumpolar Council and Shadian both insist. The bottom line is the fact that states remain sovereign, even though state sovereignty might be diminished in strength now when compared to prior historical periods. The Inuit and other indigenous groups are best described as being “autonomous,” rather than sovereign. “Autonomy” refers to local self-­rule for

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the Inuit of their po­liti­cal, economic, and cultural institutions. “Sovereignty” is a term that refers to supreme lawmaking authority within a given territory. The Inuit are, and should be, autonomous within the Arctic Circle. Sovereignty over the Arctic, however, still rests in the hands of state governments (such as the United States, Canada, Rus­sia, Denmark). State sovereignty sets boundary conditions within which indigenous groups enjoy considerable local autonomy. The indigenous ­will also use their expanded po­liti­cal and economic influence to push back against states in attempts to relocate ­t hose same boundary conditions that states try to enforce as limits on indigenous actions. But ­little is gained by declaring indigenous groups to be “sovereign” when they are more accurately described as autonomous. The 2007 Declaration on the Rights of Indigenous ­Peoples is careful not to assert an unrestricted right to indigenous self-­determination. If it did, then in theory, it could promote secessionist movements and indigenous claims to sovereign status as CANZUS alarmists claimed in their overstated assertions about the alleged dangers of the DRIP. In much the same way, the Inuit and other indigenous groups are best conceptualized as being autonomous rather than sovereign. Shadian is correct when she argues that international law needs to be reformed in order to accommodate indigenous claims to greater autonomy (2010: 8). She is incorrect, however, in assuming that individuals and groups within sovereign states may also be accurately described as “sovereign” (ibid.). To better understand the problematic theoretical matrix of state sovereignty versus indigenous autonomy, I turn now to a conclusion that summarizes the cases of this chapter and situates them in relation to national sovereignty.

The UN Declaration, the OAS Court, the Inuit Council, State Sovereignty, and Global Governance The areas of indigenous rights discussed in this chapter inform studies of global governance in several re­spects. ­These cases demonstrate some of the successes that indigenous groups have had in defending their rights. The three case studies of this chapter also help to situate state sovereignty in relation to global governance for nonstate actors. I ­will conclude this chapter by highlighting the successes and presenting a broader treatment of the thorny issues involving national sovereignty.

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The indigenous have had a string of notable recent successes when fighting to protect their ­human rights. First of all, they have been better able to institutionalize their rights into law—or to “legalize” their rights—­than have other comparable groups (such as ethnic minorities). As Lyons and Mayall point out (while citing the work of Hannum), “indigenous p ­ eoples have made more substantial pro­gress in putting their rights on a ­legal basis than minorities . . . ​t his is partly ­because they have dealt with the practical prob­lems of discrimination and eschewed the prob­lem of definition, but it is mainly ­because they cannot entertain serious ambitions of separate statehood” (2003: 208). Land disputes before the OAS court are cases in point. Indigenous groups from Nicaragua, Paraguay, and Suriname have had their land owner­ship restored by the OAS regional ­human rights court, over the objectives of their respective governments, but have not sought or desired complete sovereignty (“separate statehood”) in ­t hose lands. Indigenous p ­ eoples have also been successful norm entrepreneurs when seeking to expand international law into new areas. The best example of this sort of success is the Declaration on the Rights of Indigenous P ­ eoples. The DRIP has put onto the international diplomatic agenda the issues of cultural sovereignty for the indigenous and requirements for their ­free and prior consent to policies that directly affect them. At the same time, while the right of indigenous self-­determination is loudly proclaimed by the DRIP, it is also carefully qualified by Article 46’s re­spect for the existing “territorial integrity [and] po­liti­cal unity of sovereign . . . ​states.” Indigenous groups have also been successful in leveraging their moral and po­liti­cal legitimacy to force concessions from state governments. Inuit Circumpolar Council permanent membership on the state-­dominated Arctic Council, membership that has been (at the same time) denied to ­great powers such as China, is no small achievement. While t­ hese indigenous victories—at the UN, the OAS, and the Inuit Circumpolar Council—­are significant, they remain partial victories. For indigenous rights, the strug­gle is far from over. Sovereignty helps to explain indigenous ­peoples’ success (and lack of success) for promoting and protecting their rights. States can be expected to most jealously guard their sovereignty in areas where they place the highest priorities: their borders, supreme lawmaking authority within t­ hose borders, and the wealth represented by natu­ral resources within ­t hose borders. The provisions of the DRIP most strongly criticized by the CANZUS states

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before 2007 cover precisely ­these areas: fears of secessionist movements (alleged threats to borders), claims by CANZUS that the indigenous are seeking “veto” powers over national policies (alleged threats to lawmaking authority), and indigenous claims to control and compensation regarding natu­ral resources in their traditional homelands (control of wealth). On the other hand, in the areas of the DRIP most impor­tant to indigenous daily life—­their rights to culture, to use of indigenous languages, and to instruction in their schools in their ­mother tongues—­these rights find ­little con­temporary opposition from the CANZUS states ­because they do not represent perceived threats to core sovereign interests. Cases before the OAS ­human rights court highlight the close relationship between the indigenous and their ancestral lands. States in Central and South Amer­i­ca have been forced to return indigenous lands, pay compensation for indigenous resources, and prevent third-­party exploitation of indigenous rights. Also notable by their absence before the OAS court are the numerous land disputes between the indigenous and the governments of Canada and the United States. The United States and Canada refuse to waive their sovereign authority over settling ­t hese disputes by refusing to grant jurisdiction to the OAS court. The OAS court can force changes in national policy for the lesser powers ­under its jurisdiction, such as Nicaragua, Paraguay, and Suriname. However, the Inter-­American Court cannot force ­great powers such as Canada or the United States to come ­under its jurisdiction. The more power­f ul states prefer to stay beyond the reach of regional courts and global institutions that can limit their freedom of action. In the more power­f ul states, the crucial pressures for honoring indigenous rights usually come from internal po­liti­cal actors and pro­cesses. The indigenous in the United States and Canada have lobbied hard in Congress and at Parliament to get po­liti­cal settlements that are not pos­si­ble via the Inter-­American Court. A case in point is the 2009 agreement crafted by President Obama’s administration that set up a $3.5 billion fund to ­settle dozens of ­legal claims, some of which go back more than one hundred years. Two billion dollars from the 2009 settlement was set aside to buy back and consolidate tribal lands that the U.S. government illegally allowed to be broken up and sold to nonindigenous parties. Another $1.4 billion was disbursed as payments to over 300,000 individuals from indigenous groups to help repay gas, oil, and grazing leases (or royalties) that the federal government unjustly denied to tribal interests. And $60 million was earmarked for

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a scholarship fund to provide college tuitions or vocational training for the indigenous. The settlement does not require an official apology from the U.S. government to the indigenous, but it does acknowledge a “breach of trust” by the federal government regarding its management of Indian lands. The 2009 indigenous settlement in the United States is a good example of how the most influential states can seek to limit the reach of global governance b ­ ecause it did not come by means of the regional h ­ uman rights system. However, it is also an example of how even the most power­f ul of states can be forced to come to terms, through effective domestic po­liti­cal action, with indigenous rights that w ­ ere ignored and ­v iolated for centuries. State sovereignty, in practice, is roughly equal to governments jealously guarding their core interests. Sovereignty of this sort sets the boundary conditions for global governance and the outer limits to actions by nonstate actors. Nonstate actors like the indigenous have to work within the par­ameters set by national governments. As we have seen, the indigenous can push t­ hese limits successfully (and in a relatively short period of time) to get movement on promoting and respecting their cultural rights. Gradual and more focused pressures w ­ ill be necessary, and pro­gress w ­ ill come more slowly, in regard to indigenous rights to land, resources, and prior consent. But at the same time, the outcomes of ­f uture b ­ attles between indigenous groups and national governments are not predetermined. Nor are the boundary conditions for global governance set in stone. Efforts at global governance by the indigenous are pushing back to devolve national sovereignty slowly and gradually over time. In the long run, it is pos­si­ble that the indigenous ­will be able to persuade and cajole states to reestablish new boundary conditions that are closer to the needs, wants, and agendas of nonstate actors. But this is not the proper place to speculate about the ­future of ­human rights and global governance. That is a topic best addressed in Chapter 7, when we consider two models of h ­ uman rights and global governance.

Chapter 3

Corporate Social Responsibility and Global Governance

One should not treat a dog like this. —­Reaction of one observer to the 2012 Tazreen garment factory fire in Bangladesh (Geller, 2012)

In November of 2012, 112 workers ­were killed in the Tazreen Fashions factory fire in Bangladesh. Only three floors of the eight-­story building had been legally built. It lacked emergency exits, and gates to the building had been locked, trapping workers inside. Survivors told a government committee investigating the fire that man­ag­ers ordered them back to work ­after the fire alarm went off. In the charred remains investigators found apparel for Disney, Sears, and Walmart. The man­ag­er of the Tazreen factory was charged with hom­i­cide (Al-­Mahmood, 2013). The greatest disaster in the history of the garment industry occurred less than five months l­ ater when the Rana Plaza factory collapsed in Bangladesh, killing 1,134 ­people and injuring 2,500 more (Barrett, Baumann-­Pauly, and Gu, 2018). Three floors in the eight-­story building had been added illegally. It h ­ oused five garment factories and a bank. When cracks w ­ ere reported in the Rana Plaza walls by an engineer on 23 April 2013, police issued an evacuation order. The bank in Rana Plaza complied, but the building’s owner and garment factory man­ag­ers told ­people that the building was safe. Garment workers w ­ ere told to go back to work. The building collapsed the following day. Rana Plaza produced garments for Benetton and Wal-­Mart, among many o ­ thers. The owner of the Rana factory fled, but was arrested

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four days l­ater. Families of the dead workers called for the death penalty (Hackel, 2014). The owner of Rana Plaza has since been imprisoned for corruption, but he still f­ aces prosecution for murder (Barrett, Baumann-­Pauly, and Gu, 2018; see the conclusion of this chapter for recent events regarding Rana Plaza). Events like ­t hese call increased attention to the global campaign to enhance corporate social responsibility (CSR), especially among Western retailers who contract their production to factories in Bangladesh and elsewhere. CSR has witnessed an increase in its po­liti­cal salience and social activism, but at the same time mass deaths of workers in the global production chain have skyrocketed. The Tazreen fire and the Rana Plaza collapse are just two examples of egregious violations of basic h ­ uman rights caused by textile manufacturers. Despite the fact that such disasters are occurring with increased frequency and severity, some scholars of CSR argue that “the movement ­towards greater corporate responsibility is one of the most deep-­rooted developments in the h ­ uman rights story . . . ​of the twenty-­first ­century” (Jerbi, 2009: 320). Unfortunately, increased attention to CSR from governments, international organ­izations, and civil society has not prevented catastrophes like t­ hose in Bangladesh. Efforts to force corporations to re­spect and uphold universal ­human rights have a history that dates back at least as far as the 1970s. This chapter pre­ sents a brief history of the origins and evolution of CSR, as well as a discussion of the best theories about why CSR has followed a few ­limited paths. The chapter concludes by considering recent efforts to use courts in the United States to enforce ­human rights obligations for transnational corporations (TNCs).

The Origins of Con­temporary Corporate Social Responsibility Daniel Kinderman defines corporate social responsibility as “voluntary engagement [by businesses] for social and environmental ends above legally mandated minimum standards” (2009: 1). CSR exists if and when corporations promote public social goods, such as the protection of ­human rights, which go beyond national or international ­ legal requirements. Early twentieth-­century CSR took the form of corporate philanthropy (Vogel, 2006: 17–18). Key court cases in the 1950s established the l­egal right for businesses in the United States to use corporate funds to help finance public goods, such

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as contributions to university engineering programs. Levi Strauss, Cummins Engines, Atlantic Richfield, and o ­ thers become members of the “5% Club” by donating at least 5 ­percent of corporate earnings to education and other worthy c­ auses (ibid.). The global movement to demand morally responsible be­hav­ior by private corporations originated in the United States in the 1960s and 1970s, expanded to the United Kingdom in the 1980s, and spread throughout the rest of Western Eu­rope (and beyond) during the 1990s. As part of the antiwar movement of the 1960s, activists targeted Dow Chemical operations in the United States. They objected to Dow’s production of napalm, a form of jellied gasoline that was dropped in massive quantities on Vietnam. A 1972 Pulitzer Prize–­winning photo of c­ hildren in South Vietnam fleeing in terror from a napalm attack on their village, some with their clothes completely burned away, created outrage in Congress and among the American p ­ eople regarding atrocities associated with the use of napalm (Hagler-­Geard, 2012). Protests against Dow in the 1960s “prefigured” similar strategies that ­later targeted Nike athletic wear and Shell oil during the 1990s (Vogel, 2006: 6). Like other social movements with their origins in the 1960s (e.g., feminism and environmentalism), early CSR activism mimicked the marches, protests, and boycotts of the civil rights movement and the antiwar campaign. The 1960s and 1970s w ­ ere also a time during which many other new CSR strategies w ­ ere first developed: voluntary codes of conduct for businesses, social audits of corporate activities, socially conscious investment funds, and rankings of corporate social and environmental per­for­ mance (ibid.). Another harbinger of con­temporary CSR tactics was the original ­Sullivan Princi­ples of 1977. Named a­ fter the Reverend Leon S­ ullivan (a Baptist minister from Philadelphia who was the first African American member of the General Motors Board of Directors), the S­ ullivan Princi­ples ­were a tool to fight apartheid in the Republic of South Africa. They required policies of nonsegregation, equal employment opportunities for all races, and equal pay for equal work regardless of race. Over one hundred U.S. TNCs in South Africa ­adopted the ­Sullivan Princi­ples (Ruggie, 2013: 69). In addition to the princi­ ples, ­Sullivan lobbied GM and other corporations to voluntarily withdraw from South Africa ­u ntil apartheid was abolished. In 1999 (­a fter the fall of apartheid), UN Secretary-­General Kofi Annan launched the Global S­ ullivan Princi­ples. The Global ­Sullivan Princi­ples are current voluntary standards for CSR regarding ­human rights, equal opportunity, f­ree association, living wages, job safety, and sustainable development that are open to companies

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of any size in any part of the world (Mallenbaker​.­net, n.d.). Companies wishing to be associated with the Global S­ ullivan Princi­ples must provide public information that demonstrates their commitment to upholding such standards. They w ­ ere part of Annan’s broader efforts to promote CSR during the 1990s (such as the Global Compact; see below). Social groups targeting Dow in the 1960s and S­ ullivan’s 1977 voluntary princi­ples for corporate be­hav­ior anticipated two of the most widespread types of con­temporary CSR: pressure from civil society and voluntary codes of conduct a­ dopted by businesses. More detail on each of t­ hese methods ­will be provided below. CSR was “almost exclusively an American phenomenon” u ­ ntil the 1980s, but slowly and gradually “the geographic center of gravity for CSR has shifted from the United States to Eu­rope, in par­tic­u­lar to G ­ reat Britain” (Vogel, 2006: 7). A key event in the evolution of British corporate responsibility models was the 1977 Ashridge Business School Lecture by Charles Carmichael Pocock. At that time, Pocock was the managing director of Royal Dutch Shell and the chair of the London Business School. Pocock laid out the conditions that, in his view, necessitated a movement ­toward CSR for British firms (Kinderman, 2009: 35). Pocock’s 1977 lecture “laid down the UK Corporate Responsibility agenda for the 1980s and well into the 1990s” (ibid.). The late 1970s was a time of global economic contraction, with the United States and the United Kingdom g­ oing through their worst post–­World War II economic recessions up ­until that time. In this context, Pocock pointed to social welfare legislation, government red tape, and ­labor ­unions as the ­causes of many of Britain’s economic trou­bles. However, Pocock was not seeking just to lay blame; he also saw t­ hese trends as an opportunity for businesses to become better corporate citizens. Kinderman summarizes the “general thrust of Pocock’s lecture . . . ​[as] a decisive break with the post-­war political-­economic order . . . ​[and] a move away from . . . ​the entitlement state t­ owards a more dynamic form of capitalism” (ibid.). Pocock’s recommended business model included aspects of what is now commonly referred to as corporate social responsibility. Pocock argued that businesses cannot ignore or simply “opt out” of the social prob­lems of their day (Kinderman, 2009). Following Pocock’s lecture, the British Ministry of the Environment sponsored a 1980 conference at Sunningdale Park, south of London, for members of the U.S. and UK governments, along with representatives from industry and commerce. While most business leaders in the 1980s ­were looking for the c­ auses of the late 1970s recession (as did Pocock), and while the newly minted Reagan and Thatcher governments moved rapidly t­ oward deregulation

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and privatization to stimulate growth, some observers at Sunningdale saw a connection between resurgent neoliberalism in the 1980s and the spreading of CSR. In the words of one of the participants at Sunningdale: “Although relatively few companies in Britain pursue corporate responsibility policies, ­t hose con­sul­tants who are active in the [CSR] field detect a growing interest. Much of this has been seen in the last year and in part reflects a response to the new Government’s intentions to reduce State activities in society” (quoted in Kinderman, 2009: 35). In other words, although CSR prior to 1990 was, at best, a nascent concern for businesses and government regulators, as early as the 1980 Sunningdale conference insightful observers ­were already seeing a connection between the slow rise of CSR initiatives and the rapid decline of the Western welfare state. This connection between the rise of CSR and the fall of what John Ruggie calls “embedded liberalism” (e.g., welfare and ­labor protections for the interests of the working classes) is at the heart of Kinderman’s explanation for the arc of CSR’s history. The earliest CSR campaigns originated in the United States during the Vietnam era, and then spread to the United Kingdom during the era of Margaret Thatcher’s policies of privatization and retreat from the welfare state. From ­there, national-­level CSR programs diffused more slowly throughout the rest of Eu­rope. Kinderman’s work ­will help us to understand two key aspects of CSR ­after 1980. His analy­sis of Eu­ro­pean CSR business groups demonstrates just how CSR has spread from its origins in the United States and the United Kingdom. Also, Kinderman’s follow-up work on Ruggie’s theory of embedded liberalism provides the best analytical account of why corporations pursue CSR in the first place. Both of ­these aspects of Kinderman’s work ­will be addressed in more detail below, but first I ­will trace the evolution of CSR in the United States during the 1990s.

CSR in the United States During the 1990s: Sweatshops Versus Codes of Conduct Sweatshops Much media attention and considerable NGO activity during the 1990s was devoted to investigating the alleged use of Global South sweatshops by U.S. TNCs. Nike manufactures in Indonesia and Vietnam. Walmart has contracted with textile plants in Honduras. Goods for the Disney stores are

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sewn in Haiti. Clothes for the Gap come from “maquiladoras” (fabrication and assembly plants) in El Salvador. The high profiles of 1990s pop-­culture icons like Michael Jordan and Kathie Lee Gifford, who endorsed goods for Nike and Walmart respectively, guaranteed media attention. As charges of abuse in sweatshops grew, many ­human rights organ­izations mounted worldwide campaigns to eliminate sweatshop conditions. A minor scandal involving alleged sweatshops and Walmart’s Kathie Lee line of clothing became impor­tant enough in 1996 for President Clinton to appoint a task force on sweatshops. The recommendations from that task force, as well as NGO strategies for fighting sweatshops, ­will be reviewed ­later; but first let us look at the charges against TNCs. Two cases are especially instructive. Walmart operations in Honduras and Nike’s plants in Indonesia are good examples of the international po­liti­cal economy of sweatshops. Philip Knight, cofounder of Nike, was a gradu­ate student at Stanford’s business school in the 1960s when he wrote a paper on the potential profits to be made by manufacturing sneakers in Asia. T ­ oday, Nike is the world’s largest athletic shoe manufacturer. Nike achieved this success by putting Knight’s Stanford theory into practice. Nike began manufacturing in Asia during the 1970s with plants in South ­Korea and Taiwan. As ­u nions ­were formed and wages r­ ose in t­ hose countries (see Chapter 4), Nike shifted its production to Indonesia in the 1980s, and l­ater expanded into China and Vietnam. From 1967 u ­ ntil 1998, Indonesia was controlled by an authoritarian government ­under President Suharto. The U.S. State Department and Amnesty International documented a long history of h ­ uman rights abuses by Suharto’s regime, not the least of which involved the brutal invasion, annexation, and repression in the in­de­pen­dent nation of East Timor. Indonesia is also a haven for TNCs and foreign investment. Suharto allowed only one ­u nion ­under Indonesian l­abor laws. That ­union was government controlled. In­de­ pen­dent u ­ nionization was not allowed. U.S. State Department ­human rights reports during the 1990s singled out Indonesia’s repression of l­ abor rights for special criticism (Smith, 1995). Adidas, Converse, Nike, Reebok, and many other athletic equipment manufacturers have operations in Indonesia. Nike is the largest by far. ­Women normally make up 90 ­percent of the apparel industry workforce. Indonesia produces the largest percentage of Nike products of any nation, approximately 36 ­percent (Richburg and Swardson, 1996). Nike, like other TNCs in Indonesia, does not have direct owner­ship of its production facilities. Rather, it

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hires subcontractors who own the plants. Journalists and h ­ uman rights activists have documented the following abuses by TNC subcontractors in Indonesia: verbal, physical, and sexual abuse of workers; use of child l­abor; sexual discrimination; and corporal punishment used against workers. ­Those who attempt to or­ga­nize the workforce, and workers who speak out against low wages and unsafe working conditions, have been arrested, fired from their jobs, and sometimes murdered. Vio­lence has been used routinely to control workers. One u ­ nion or­ga­nizer was kidnapped, raped, and killed in 1996, allegedly by the military (Indonesia Goes for Gold in Sweatshops, 1996). Police have been brought in to break strikes, interrogate ­labor leaders, and intimidate workers. Workers have often gone on strike simply to protest the fact that they are not being paid the minimum wage required ­under Indonesian law. Twenty-­t hree strikers who protested against subminimum wages in 1992 w ­ ere fired. Similar firings, for the same reason, took place at other Nike plants in 1996. A riot at one plant in 1997 forced a three-­day shutdown. Some 5,000 workers went on a rampage, burning cars and destroying the factory’s offices. Workers claimed they ­were not being paid an increase in the minimum wage that had been mandated by law weeks before. In this instance, the plant had to give in and agree to a 10 ­percent pay raise (Indonesia Plant That Makes Sneakers for Nike, 1997). Workers in Nike production facilities also claimed they have been forced to work overtime, and child ­labor is common. Indonesian law requires that workers be at least fifteen years old, but girls as young as thirteen have been hired in many plants. C ­ hildren as young as eleven have been used to stitch together soccer balls for Nike and Reebok subcontractors in Pakistan (Gargan, 1996). Documented physical abuse against workers includes kicking, hitting, slapping, striking on the buttocks, and, in one instance, being forced to run around a plant in the hot sun ­until they fainted. Twelve of the ­women subjected to this punishment had to be taken to an emergency room; their “crime” was wearing the wrong kind of shoes to work (Herbert, 1997). A spokeswoman for Nike’s corporate headquarters condemned this last incident, saying the com­pany was outraged and horrified by what had happened to the twelve ­women (ibid.). ­Because all TNCs, including Nike, are sensitive to public pressure and want to avoid a bad image in the media, many have taken steps to ­counter the bad press caused by sweatshop allegations. Levi Strauss pulled its production out of Indonesia altogether when subcontractors ­were accused of strip-­searching their employees in 1994. In 1992, Nike ­adopted a code of con-

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duct for its thirty-­five plants throughout Asia. According to Nike’s corporate officers, all subcontractors are required to adhere to the code. It requires compliance with all local laws, including minimum wage statutes. Forced ­labor and use of child ­labor are prohibited. The Nike code also requires provision of worker insurance and compliance with local health and safety regulations (Gargan, 1996). Nike even went so far as to hire Andrew Young (former U.S. ambassador to the United Nations) and his consulting firm to do an in­de­pen­dent audit of conditions in Nike’s Asian plants. Young announced the results of his investigations in June  1997. He said he found no evidence of widespread or systematic abuse of workers at Nike’s factories. Nike’s critics questioned the objectivity of Young’s assessment, pointing out that his firm, GoodWorks International, was on the Nike payroll. Young’s report clearing Nike of any responsibility quickly lost credibility. The same week that Young’s favorable report was released, a man­ag­er at one of Nike’s subcontractors was convicted of physically abusing workers (Man­ag­er for Nike Contractor Convicted, 1997). Nike claims to be a force for positive changes in developing nations. If Nike receives complaints about worker abuse, com­pany policy says that the subcontractor must rectify the situation or Nike w ­ ill consider termination of the business. Knight is fond of pointing out that ­there are always long lines to apply for jobs at ­every one of Nike’s Asian plants, implying that ­people are ­eager to work for his com­pany in par­tic­u­lar. He also believes that TNCs can lead developing nations out of poverty. He claims to have the “best factories in the world,” factories that have (in his opinion) the “best conditions” for their workers. Knight and his associates also warn that if wages go too high, it could wreck the economies of Global South nations (Herbert, 1996). Nike spokesman Jim Small cautioned that the 10 ­percent raise forced on Nike’s subcontractor by the 1997 riot could cause the ­labor force in Indonesia to “price itself out of the market” (Indonesia Plant That Makes Sneakers for Nike, 1997). Nike, the Indonesian government, and economists from the World Bank all claimed that low wages are a necessary condition for sustained economic growth in Indonesia (Mydans, 1996). Growth in Indonesia has been impressive during the last four de­cades. No doubt part of this growth is due to the presence of foreign TNCs. Perhaps Nike’s workers in Indonesia are happy, as Knight would like us to believe. According to at least one survey in 1996, most of the workers in Nike subcontractor factories said they liked working t­ here. However, the survey

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showing worker satisfaction at Nike plants conducted its interviews while management was pre­sent, calling into question the candor of the employees’ comments. According to the same 1996 study, “Indonesia is booming and poverty is falling, relative to its impoverished past, and much of the boom has come since American companies began investing ­t here a de­cade or so ago” (Richburg and Swardson, 1996). It is evident, however, that many of Nike’s workers have not shared in Indonesia’s economic prosperity. Minimum wages are not always paid by Nike subcontractors, a violation of Indonesian law and contrary to Nike’s own code of conduct. Even when the minimum wage is paid, it is equal to only 90 ­percent of the cost of living for one person in Southeast Asia. Nike’s critics want the corporation to guarantee workers not just the below-­subsistence-­level minimum wage. They believe that the number one maker of athletic shoes is wealthy enough to provide a living wage to all of its employees. Similar charges of abuse and similar demands for redress ­were brought against Walmart for its operations in Honduras. Early in 1996, sweatshop allegations regarding Walmart became a media event b ­ ecause of the role played by Kathie Lee Gifford. Accusations that the Kathie Lee line of clothing was produced by w ­ omen working u ­ nder sweatshop conditions first brought a defensive denial from the talk show hostess. Congress quickly scheduled hearings on the ­matter, and ­labor activists substantiated the charges against Walmart’s suppliers. Testimony before Congress revealed the use of child l­ abor in Honduran maquiladoras. Workers also testified to laboring in extreme heat for up to twenty hours per day, at wages of only thirty-­one cents per hour (Kathie Lee’s Misstep, 1996). Additional research shows that the conditions exposed during the 1996 Walmart scandal ­were nothing new. A long history of worker abuse in Honduran export pro­cessing zones has been documented by l­ abor activists. Verbal, physical, and sexual abuse have been common in t­ hese plants. Workers have been hit, punched, slapped, threatened, and had their heads smashed into sewing machines by man­ag­ers (­Women and ­Children First, 1993). One worker even told of having scissors pressed against her face and being threatened with disfigurement if she talked to anyone about the beatings at her plant (ibid.). Although sixteen is the minimum age for workers ­under Honduran law, it is not unusual to find girls as young as twelve sewing in the textile plants. Pregnant w ­ omen have been fired so the factories can avoid paying maternity benefits. No ­unions are allowed in the Honduran export pro­cessing zones.

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Workers who attempted to or­ga­nize u ­ nions have been fired and blacklisted (ibid.). As the investigation into the Walmart case progressed, charges of sweatshops hit much closer to home. As it turned out, some of the Kathie Lee items ­were sewn in New York City at a “substandard and abusive” factory that mirrored the sweatshop conditions of the Honduran plants (Kathie Lee’s Misstep, 1996). Gifford dropped her defensive posture a­ fter the New York plant was exposed, and she became an advocate in the media for l­abor rights instead. She started to campaign against child ­labor and sweatshops. When it was revealed that workers in the New York City sweatshop had not been paid, Kathie Lee sent her husband to the plant to hand out $300 in cash to each worker. She appeared at a press conference with Governor George Pataki in support of state legislation allowing seizure of goods made in sweatshops (ibid.). She met with a fifteen-­year-­old girl from Honduras who said she had been abused and sexually harassed at the plant contracted by Walmart. Fi­ nally, she appeared at the White House with Secretary of L ­ abor Robert Reich and assisted President Clinton’s task force on sweatshops.

Corporate Codes of Conduct President Clinton or­ga­nized a task force on sweatshops in response to the attention generated by the 1996 Walmart controversy. Media politics and public pressure persuaded Clinton to create a committee made up of representatives from TNCs, l­ abor organ­izations, h ­ uman rights NGOs, and religious organ­izations. The Apparel Industry Partnership (AIP) was or­ga­nized to draft a voluntary code of conduct for the garment industry that would prohibit sweatshops and other forms of worker abuse. The AIP was not the Clinton administration’s first attempt at a corporate code of conduct. In 1995 Clinton’s administration had announced an ­earlier voluntary code of conduct for U.S. corporations operating abroad. At that time, Clinton was ­under pressure from critics who had denounced his 1994 decision to renew China’s most favored nation trading status. The Model Business Princi­ples of 1995 ­were designed to appease ­people who ­were concerned about trade and ­human rights in China following the 1989 Tian­anmen Square massacre. The 1995 Model Business Princi­ples, however, satisfied neither TNCs nor ­human rights activists. The code drafted by the White House called on U.S. firms to re­spect workers’ rights to or­ga­nize and bargain collectively; to promote ­free expression for workers and prohibit po­liti­cal coercion

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in the workplace; to prohibit child ­labor, forced ­labor, and discrimination based on race, gender, or religion; to provide a safe and healthy workplace; and to adopt responsible environmental practices (Chandler, 1995). The 1995 code was designed with China in mind but addressed U.S. TNCs in all countries to avoid singling out China. Companies ­were asked to adopt the code voluntarily, but corporate Amer­i­ca was less than enthusiastic. Business leaders, many of whom had already drafted codes for their own firms, criticized the 1995 Model Business Princi­ples as being too vague and too broadly worded to have any meaningful effect. Corporations ­were also upset that the White House had drafted the princi­ples without consulting anyone in the business community (Iritani, 1995). Members of Congress called the proposal “weak and ineffectual,” and a director for ­Human Rights Watch said that Clinton’s 1995 code fell “far short of what is needed” (ibid.). The Clinton administration learned from the tepid response to its 1995 code and applied this lesson to the drafting of an anti-­sweatshop code in 1996. This time, corporate leaders and h ­ uman rights NGOs w ­ ere invited to take part in the drafting pro­cess itself. A ­ fter eight months of work the AIP announced its code. The AIP code of conduct incorporated the 1995 model princi­ples, but the anti-­sweatshop code also went much farther. In addition to ele­ments carried over from the 1995 princi­ples, the AIP voluntary code set a maximum sixty-­hour work week and required at least one day off per week, barred the use of prison workers, prohibited employment of ­children younger than fifteen except in t­hose countries where the minimum work age is fourteen, and required TNCs to pay no less than the local minimum wage (Apparel Industry Gets Code, 1997). Manufacturers who promised to adhere to the AIP code ­were rewarded with a “no sweatshop” label for their products. Nike, Reebok, Liz Claiborne, L.L. Bean, Eddie Bauer, Phillips-­Van Heusen, Patagonia, and Nicole Miller ­were among the first TNCs to sign on to the agreement. Critics argued that the AIP code was l­ ittle more than a clever way for TNCs to gain a better public image, while corporations waged a public relations campaign to fool consumers into thinking conditions are improving in Global South garment factories. This naturally raised the question of who would monitor compliance with the agreement and enforce the code. Task force members suggested that local ­human rights NGOs be used to monitor compliance, but TNCs ­were left to largely police themselves. A half dozen ­human rights organ­ izations that ­were not parties to the task force denounced the AIP code for not requiring U.S. firms to pay a living wage in the Global South. The code

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was also criticized for not banning excessive overtime (Anti-­Sweatshop Code, 1997). One critic went so far as to call the AIP code “the good h ­ ouse­keeping seal of approval for a kinder, gentler sweatshop” (ibid.). The 1990s witnessed a proliferation of corporate codes of conduct, some coming from the White House, some coming from the corporations themselves, and the best models coming from nongovernmental organ­izations. Nike and Walmart a­ dopted their own internal codes in 1992, but ­here I ­will focus on codes from NGOs due to their greater objectivity. NGOs, such as Amnesty International (AI) and the Co­a li­tion for Justice in the Maquiladoras (CJM), produced corporate codes on h ­ uman rights that are superior to ­t hose from the White House or from TNCs. Creation of the North American ­Free Trade Agreement (NAFTA) in 1994 turned the focus for CSR at that time t­ oward assembly plants in northern Mexico known as “maquiladoras” or “maquilas” (from the Spanish term maquilar, meaning “to pro­cess”). One of the best corporate codes of that time came out of the CJM. The CJM code was much more detailed than the White House recommendations of 1995 and 1996. The CJM’s Maquiladora Standards of Conduct ­were drafted in 1991 by a co­ali­tion of sixty community, environmental, l­ abor, Latino, and ­women’s organ­izations. The CJM standards w ­ ere based on Mexican and U.S. laws, as well as international ­labor standards established by the International ­Labor Organ­ization (CJM, 1992). The CJM code targeted the assembly plants in northern Mexico, and its provisions w ­ ere based on CJM’s knowledge of the past be­hav­ior of the maquiladoras. The 1991 Standards of Conduct focused on three areas: environmental contamination, health and safety, and fair employment practices. The environmental provisions of the CJM code w ­ ere the most detailed and demanding to be found in any corporate code up to that time. This is understandable, given the numerous environmental crises in Mexico caused by the maquiladoras (see Meyer, 1998: chap. 5). TNCs w ­ ere called on to comply with all federal environmental regulations from both the United States and Mexico. Environmental impact statements ­were to be filed for all new TNC operations. TNCs ­were also asked to publish all government citations for environmental violations, along with the steps being taken to come into compliance. The CJM standards required full public disclosure of all toxic discharges and of all hazardous materials in storage. Full disclosure was also called for regarding transportation or disposal of any hazardous materials. Fi­nally, the CJM code required that TNCs undertake remedial action to clean up any past dumping and pay fair compensation to anyone who has been

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harmed by pollution. However, none of the maquiladoras was willing to endorse the CJM code’s environmental provisions. Section  2 of the CJM code covered health and safety. Corporations ­were called on to comply with Mexican and U.S. health and safety regulations. Appropriate warning labels ­were to be affixed to each container holding toxic wastes, with instructions in Spanish and En­g lish. Health and safety training and protective clothing and equipment for all workers w ­ ere additional corporate responsibilities ­under the CJM standards. Section 3 of the Maquiladora Standards of Conduct addressed fair employment practices. Discrimination was prohibited, as was child l­ abor. U.S. corporations ­were called on to recognize Mexican workers’ rights to or­ga­nize and bargain collectively. Corporations had to take positive steps to prevent sexual harassment, including educating employees about what constitutes sexual harassment. The CJM succeeded in drafting one of the most detailed codes of conduct for U.S. TNCs. If put into effect, this code would have had a major impact on improving ­human rights conditions in Mexico. Alas, calls for TNCs to endorse and comply with the Maquiladora Standards of Conduct fell on deaf ears in the corporate sector. Amnesty International also developed a comprehensive approach to improving corporate be­hav­ior during the 1990s. AI drafted its own code of conduct for TNCs, but its policies on TNCs and rights included much more than just the code. AI does not do any in­de­pen­dent monitoring of corporate be­hav­ior. It also takes no position regarding sanctions or boycotts against par­tic­u­lar TNCs (Boycott Retargets Multinational, 1990). It does, however, “in some cases, expose, publicize and campaign against corporations which are engaged in verifiable patterns of conscious collusion or unconscious collaboration with ­human rights violations by governments” (Winston, 1996). Amnesty International has identified three types of TNCs that are a threat to ­human rights. First are ­those TNCs that produce products or ser­vices that ­others use to violate h ­ uman rights. Second are t­ hose TNCs that knowingly cooperate with h ­ uman rights abuses committed by o ­ thers. Third, and most serious, are TNCs that directly commit ­human rights violations themselves (ibid.). Amnesty International’s tactics regarding TNCs and rights exist on three levels. First, AI developed a general set of princi­ples in the 1990s that the organ­ization feels should be included in any corporate code of conduct. Second, AI urges TNCs to re­spect and promote the following rights in their own

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sphere of operations: freedom of speech, freedom of opinion, and freedom of assembly; ­labor rights; maternity leave and child care; adequate housing and education for employees; and nondiscrimination in the workplace. Fi­ nally, Amnesty International asks TNCs to be proactive outside their own sphere of operations. TNCs should require that all subcontractors and business partners uphold the rights listed above. TNCs should also express due concern for h ­ uman rights to host governments. AI believes that “­human rights are every­one’s business,” for all corporations large and small, and for all employees “from the factory floor to the corporate boardroom” (ibid.). Amnesty International’s “Princi­ples and Recommendations Concerning Corporate Ethical and Social Responsibility in the Field of H ­ uman Rights” ­were completed in 1996. AI offered its recommendations, which are themselves based on the Universal Declaration of H ­ uman Rights, as a model to be followed by TNCs when drafting their own codes of conduct. Specific recommendations from AI on what to include in each TNC’s code of conduct begin with prohibitions against discrimination in hiring and promotions. Corporations with private security forces must establish guidelines on the appropriate use of coercion, restraint, and force against employees. Companies must ensure that security personnel refrain from all acts that constitute cruel, inhuman, or degrading treatment. TNCs must also forbid the use of child l­ abor or prison ­labor. To ensure the right to work, companies must guarantee f­ ree choice of employment, protection from unemployment, and equal pay for equal work. Companies must also enforce policies that prohibit interference with the right to form or join ­labor u ­ nions. To promote the rights to health and subsistence, companies should ensure reasonable hours of work, medical insurance, and pension plans. Employees should be granted leaves of absence from work in order to care for sick c­ hildren without jeopardizing their employment. Fi­nally, AI notes that the right to education can be indirectly supported by TNCs that enforce policies prohibiting child ­labor. The right to education is also promoted by corporations that facilitate technical training and educational programs for their workers. For each area of rights, Amnesty International called on all corporations to ensure ­these freedoms in their own sphere of operations and to promote the same rights in the wider communities in which they operate. The codes of conduct drafted by Amnesty International, by the Co­a li­tion for Justice in the Maquiladoras, and by the Clinton administration w ­ ere blueprints in the 1990s for TNC be­hav­ior that re­spects and promotes h ­ uman rights. Codes of conduct, like NGO exposure of specific rights violations, also

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serve as useful indicators for where to focus research on CSR and h ­ uman rights. However, as with any voluntary system, codes of conduct are only as good as the institutions for monitoring and enforcement that are necessary to make them more than just a public relations ploy for TNCs. Recently, ­human rights activists and l­ awyers have turned increasingly to invoking the U.S. Alien Tort Claims Act (ATCA) as a way to enforce the ­human rights obligations of TNCs. A discussion of ATCA cases filed before U.S. courts follows near the end of this chapter, but first the continued evolution of CSR in Eu­rope and at the UN w ­ ill be summarized.

The How and the Why of CSR in the Eu­ro­pean Union Explanations for the Spread of CSR Daniel Kinderman has produced comparative research on CSR in Eu­rope that addresses two intriguing questions. First, how has CSR spread throughout the EU a­ fter its introduction into the United Kingdom in the 1980s? Second, why has CSR in Eu­rope followed the trajectory that his empirical analy­sis describes? My discussion of CSR in Eu­rope is based almost entirely on the impressive work of Kinderman, my colleague at the University of Delaware. A focus on Eu­rope at this point also serves as a useful connection to my subsequent discussion of CSR efforts at the UN, efforts that began ­under Secretary-­General Kofi Annan in the 1990s and continued ­until 2013 ­under John Ruggie, who was Annan’s handpicked special representative for business and ­human rights. Taking up the second question—­why CSR has spread across Eu­rope since 1980—­Kinderman argues that CSR has become a substitute for social solidarity in the West. Kinderman begins with Ruggie’s popularization of the term “embedded liberalism.” Ruggie (1983) describes embedded liberalism as a ­grand bargain created between capital and ­labor ­after World War II. That ­grand bargain cushioned the worst effects of liberal markets for the working class and the poor. Through a combination of government regulations and ­union participation, workers w ­ ere afforded a relatively good degree of stability, job security, and general welfare. Domestic economic and social policies in Western industrial states once fostered a mea­sure of social solidarity that, since the 1980s, has “everywhere been weakened or . . . ​come u ­ nder attack” (Heckscher et al., 2003: 3). At roughly the same time that CSR moved from the United States to the United Kingdom, and ever since the days of

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Reaganomics and Prime Minister Thatcher, this post–­World War II g­ rand bargain has progressively “collapsed” or “been shattered” with the result being tremendous insecurity for ­labor all around the world (Osterman, 1999: 167 and 180–181). For Ruggie (2007), whose more recent work ­will be summarized in the following section, CSR is nothing less than an attempt to “re-­embed” liberalism on a global scale. In his more optimistic writings on CSR, Ruggie sees corporate responsibility as pointing the way to a f­ uture with more “egalitarian politics” (Kinderman, 2009: 2). He posits “a new global public domain” that ­will “embed systems of governance in broader global frameworks of social capacity and agency that did not previously exist” (Ruggie, 2004: 519). Furthermore, “the corporate connection is a key ele­ment in that pro­cess” as a new “embedded liberalism compromise is being pulled and pushed into the global arena” (2003: 118). Kinderman, however, expresses skepticism about Ruggie’s predictions and argues that the relationship between social solidarity and CSR is more complicated than Ruggie implies. Kinderman agrees that CSR is, in large part, a function of institutionalized solidarity. Social solidarity varies across OECD nations depending on differing levels of strong ­unions or strong welfare-­state policies. In the research summarized h ­ ere, Kinderman is less interested in speculating about the ­future of global CSR and more interested in describing the spread of CSR from the United Kingdom to the rest of Eu­rope. To do so, he divides the nations of the EU into t­ hose with high versus low institutionalized solidarity. He then postulates an inverse relationship between CSR and solidarity. Kinderman argues that as liberalization, privatization, and deregulation have expanded (think of Reagan’s and Thatcher’s policies of neoliberalism) we should also expect CSR to increase as well. Conversely, in Western states where institutionalized solidarity is relatively stronger—­evidenced by stronger u ­ nions, greater job security, and more extensive welfare nets (think of Germany)—we should expect to find less CSR that is of more recent origins. If Kinderman is correct, CSR increases in states like Germany only when social solidarity declines. Conversely, in the United States and the United Kingdom (where institutionalized solidarity has always been relatively lower), Kinderman argues, we should expect to find more CSR and CSR that dates back farther. On the face of it, Kinderman’s hypotheses would seem to be counterintuitive. Most observers would prob­ably expect a prima facie positive relationship between CSR and social solidarity. It would seem that, intuitively, one

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would expect CSR policies to be more likely in states where ­t here are positive traditions of national community (captured by the German term Gemeinschaft) and solidarity (e.g., German corporatism) that are manifested via strong u ­ nions and greater state efforts to create a strong social welfare net. One might logically expect that the communalism reflected by strong ­unions and widespread concerns for social welfare would naturally spill over into similar strong sentiments supporting CSR. Conversely, one might also expect that CSR would be lower in t­ hose economies where support and protections for u ­ nions and welfare programs are relatively weak. In that sense, one might expect CSR to reflect the broader social values within any nation regarding the legitimacy of or­ga­nized l­abor and state welfare subsidies. However, Kinderman’s analytic work argues just the opposite, and his empirical research bears this out. He expects higher levels of CSR to be associated with lower social solidarity and vice versa. This counterintuitive situation is based on the key role that CSR plays in regard to social legitimacy. When discussing the c­ auses of CSR, Kinderman and o ­ thers have discussed a long list of pos­si­ble ­factors. Skeptics see CSR as ­little more than “a mere Machiavellian fig-­leaf . . . ​[of] cynical manipulation and clever public-­ relations facades” (Kinderman 2009: 12). No doubt some (many?) corporations jump on the CSR bandwagon simply as a way to claim that they are good corporate citizens and then fail to follow through in any significant way to live up to their self-­styled codes of conduct. No doubt the pressures applied by civil society, especially ­human rights NGOs, have forced many corporations to concern themselves with h ­ uman rights and environmental protections that would never exist in absence of ­t hose same activist pressures. But in addition to ­t hese causal ­factors, Kinderman stresses the need to attend to the ways in which CSR can bestow moral legitimacy upon corporations Kinderman gives numerous examples of CSR activities in the EU. The Shell oil com­pany has engaged in CSR as a way to facilitate new opportunities to drill for oil in Eu­rope. The supermarket chain Tesco has used CSR strategies to gain the consent of communities for opening new stores. Electricity provider E.ON employed CSR to sponsor an art museum in exchange for public consent to build a new electric plant (Kinderman 2009: 9–10). ­These are examples of what Kinderman calls “pragmatic legitimacy.” Pragmatic legitimacy is based on “self-­interested calculations” and targets “immediate audiences” (ibid.). ­Others might see such “pragmatic legitimacy” as ­little more than corporations pursuing their selfish interests ­behind a “Machiavellian fig-­leaf” of CSR that is in actuality just another way to pursue profits. But if

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Kinderman is correct, ­there are also other, less suspect ways in which CSR confers legitimacy. To uncover ­these broader legitimation aspects of CSR, Kinderman’s empirical and comparative research focuses on CSR organ­izations.

Describing the Pro­cess of CSR Diffusion in Eu­rope Following the work of Peter Hall and David Soskice (2001), Kinderman divides Eu­ro­pean nations according to “va­ri­e­ties of capitalism.” Liberal market economies (LMEs) follow the Anglo-­American model. LMEs are based on deregulated market environments. Government regulation, trade ­unions, and redistributive welfare policies are weaker in LMEs. The United States and the United Kingdom are prime examples of LMEs. In contrast, coordinated market economies (CMEs) such as Germany have greater institutionalized solidarity in the forms of “redistributive and regulatory institutions including the welfare state, government regulation (especially of ­labor markets), and trade u ­ nions, [and] forms of business organ­ization which . . . ​adjust to collective interests beyond [profit] maximization” (Kinderman 2009: 13). Kinderman then pre­sents historical data on the initial creation of CSR associations in Eu­rope at the national level (see T ­ able 1). ­Table 1 tends to confirm Kinderman’s counterintuitive hypotheses about CSR, LMEs, and CMEs. The United Kingdom, an archetype of the LME model, was the first Eu­ro­pean nation to adopt CSR. CMEs such as Germany and Austria are “laggards” when it comes to CSR in Eu­rope (Kinderman, 2011, chap. 4: 3). Furthermore, CSR practices “such as corporate volunteering have a ways to go in Germany before they catch up to the levels reached in LMEs such as the UK” or the United States (ibid.: 4). To take just one telling example, when the German software ­giant SAP elicited voluntary CSR participation among its employees in the United States, the participation rate was 40 ­percent of all workers. At SAP’s com­pany headquarters in Germany, the participation rate in the same program was only 1.6 ­percent, but even this paltry number was considered a “­great success” locally by German CME standards (ibid.: 4). Kinderman sums up t­hese trends by arguing that CSR “arises in LME contexts precisely b ­ ecause it is dif­fer­ent from the prevailing institutional framework; and it arises in CME contexts as they become more, not less, market-­oriented. If Corporate Responsibility was complementary to solidaristic social institutions in CMEs, it would arise e­ arlier, and in greater quantity in ­these countries than in LMEs . . . ​this is simply not the case” (2009: 14). CSR has lagged in Germany and other CMEs b ­ ecause state institutions

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Table 1. National CSR Associations in Selected Eu­ro­pean Nations by Date of Origin Year of founding

Nation

1982 1986 1987 1992 1995 1996 1997 1998 1999 2000 2001 2002 2005 2007

United Kingdom France Sweden Czech Republic, Hungary Italy Norway Slovakia Bulgaria Spain Finland, Greece, Germany, Ireland, the Netherlands, Poland Belgium Portugal Austria Luxembourg

Source: Adapted from Kinderman, 2009: 20.

once performed many CSR-­like functions. CSR has only recently increased in CMEs such as Germany ­because state protection for collective bargaining and social welfare has waned in the recent past. CSR has long been a substitute for alternative forms of institutionalized solidarity in the United States and the United Kingdom. As CMEs like Germany are forced by twenty-­first-­century economic globalization to adopt neoliberal policies of less corporatism and greater privatization, they too experience a relatively recent rise in CSR. But CSR serves more than one purpose. ­There are ­factors at play ­here in addition to the macro-­level trends in po­liti­cal economy highlighted in t­ hese aspects of Kinderman’s work. The reasons for the rise and spread of CSR go beyond serving as an incomplete “filler” for the gap in social solidarity created by neoliberal globalization. Kinderman would be quick to point out that CSR provides a patina of legitimacy for global trends ­toward market liberalization (2009). But CSR also “soothes the moral sensitivities” of corporate CEOs, while it “constitutes” businesses as “moral agents” (ibid.). Fi­nally, it “inoculates” corporations against government oversight and can be used rhetorically to justify a “light touch” when it comes to government regulation (ibid.). Kinderman is more likely than the harshest CSR critics to assume that at least some businesses

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“want to believe in their own goodness and virtuousness,” and that while ­there are “plenty of examples of CSR as cynical manipulation and clever public-­relations facades . . . ​many of the central proponents of CSR are sincere” (2009: 7–12). Recent developments in the EU tend to bear out Kinderman’s thesis of a positive correlation between CSR and LMEs, and a negative relationship between CMEs and the deepening of CSR. The EU’s Eu­ro­pean Commission (its executive body) has a­ dopted Directive 2014/95, which requires (from 2017 onward) that businesses with more than five hundred employees must “report on their [annual] CSR activities and their social, ­human rights, environmental, anti-­corruption, and bribery impacts” (Kinderman, 2015). This policy applies to approximately six thousand companies (ibid.). Prior to Directive 2014/95, such reports w ­ ere purely voluntary. Reporting on CSR activities and ­human rights impacts, however, “­will no longer be optional” for the largest EU firms (ibid.). The United Kingdom (a paradigmatic LME) already mandated such reporting for British firms and supported the directive. Germany on the other hand (as a CME) “took a hardline position of rejecting the entire proposal” (ibid.). This has led to subsequent, ongoing ­battles within the EU over how to properly translate the directive into national law. According to Kinderman, “business associations and conservative po­liti­cal parties [particularly in Germany] support a minimalist transposition of the directive” into their domestic ­legal and po­liti­cal systems. If ­t hese actors are successful, then the EU directive to require annual CSR and ­human rights reports from large firms could still end up as a regional “paper tiger” (ibid.). The history of CSR can be traced from its origins in the United States, to the onset of CSR in the United Kingdom around 1980, to its diffusion from ­t hese LMEs to other cap­i­tal­ist states in Eu­rope. Another key ele­ment in the evolution of CSR has been the combined efforts of Kofi Annan and John Ruggie at the UN. A summary of ­t hose efforts leads to my concluding discussion of CSR and American courts.

CSR at the United Nations From the Global Compact to the Guiding Princi­ples Former UN secretary-­general Kofi Annan announced the Global Compact (GC) at the World Economic Forum in Davos during 1999 and opened the GC to corporate membership in the year 2000. The Global Compact has since

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grown to become “the world’s largest CSR initiative with some 7,000 com­ pany participants . . . ​in more than 50 countries” (Ruggie, 2013: xxvii). In his initial Global Compact address, Annan “challenged world business leaders to help build the social and environmental pillars required to sustain the new global economy and make globalization work for the world’s p ­ eople” (King, 2001: 481). According to its supporters, the Global Compact has “struck a responsive chord among countries that have benefitted most from the globalized economy, which recognize its downsides, and acknowledge some responsibility for ­doing something about it . . . ​[­because] transnational corporations are beginning to understand that corporate social responsibility is . . . ​good for business” (ibid.: 481–483). However, the Global Compact (like the codes of conduct from the 1990s) is purely voluntary. It relies on the “enlightened self-­interest of companies” to make it work; therefore critics see it as just another public relations ploy by TNCs (Jerbi, 2009: 304). The Global Compact consists of ten princi­ples and provides a web-­ based system for TNCs to demonstrate their actions in support of the GC. The first two princi­ples require TNCs that join the compact to re­spect internationally proclaimed ­human rights and to ensure that they are not complicit in h ­ uman rights abuses. The next four princi­ples require TNCs to uphold key l­abor rights in the areas of collective bargaining, prohibitions against forced and child ­labor, and nondiscrimination (for more information on ­these areas in par­tic­u ­lar, see the discussion of the ILO and core ­labor standards in Chapter 4). Three environmental princi­ples in the Global Compact require green policies, establish green responsibilities, and promote green technologies. A final princi­ple (added ­after 2003) promotes anti-­ corruption prohibitions against extortion and bribery. The Global Compact was based on existing UN ­human rights documents, and its princi­ples “are also very similar to the ­Sullivan princi­ples” (King, 2001: 482). TNCs that join are required to “commit their support to the princi­ples of the Compact and post on the world wide web, at least once a year, the concrete steps they have taken” in support of the GC (ibid.). Th ­ ose who worked at the UN to create the Global Compact believe that “one of the many ironies of globalization is that it has spawned the era of global corporate responsibility” (ibid.: 483). On the other hand, the Global Compact has been “denigrated” by its critics who see the cost of membership as “too cheap” and fear that “­t hese corporations [­w ill] simply cloak themselves in the legitimacy of the blue UN blanket while they continue to pollute the environment, plunder natu­ral

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resources, and exploit the indigenous workforce” (ibid.: 481–483). To give just one example, the Ayoreo p ­ eople, an indigenous tribe in Paraguay, have demanded that the Yaguarete Pora corporation be expelled from the Global Compact for its alleged abusive and destructive be­hav­ior. The Ayoreo are an “uncontacted” tribe that claims over 78,000 hectares of forest as part of their ancestral territory (survivalinternational​.­org​/­tribes​/­Ayoreo). ­A fter satellite photos revealed that Yaguarete Pora had destroyed thousands of hectares of the tribe’s forest, the corporation announced that it was creating a “nature reserve” out of 16,784 hectares, two-­thirds of which would be devoted to c­ attle ranching (Survival International, 2010). Survival International found the Yaguarete corporation’s conduct egregious enough to warrant its 2010 “Greenwashing Award.” Destroying indigenous lands for beef production is, according to Survival International’s director Stephen Corry, “textbook ‘greenwashing’: bulldoze the forest and then ‘preserve’ a bit of it for PR purposes” (ibid.). Unfortunately, the UN has no provisions for expulsion of a TNC that signs on to the Global Compact and then subsequently abuses ­human rights in direct violation of the compact. The Global Compact has been criticized for its lack of enforcement and its reliance on self-­monitoring by TNCs. In that re­spect, the GC differs ­little from the codes of conduct that became widespread in the 1990s. To make the UN’s work on CSR more effective, Annan appointed Harvard University’s John Ruggie as the secretary-­general’s special representative on business and ­human rights (in 2005). Ruggie, a self-­proclaimed “architect” of the Global Compact, began his work a­ fter 2005 by trying to undo the damage caused by the failure of the 2003 treaty-­like “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to ­Human Rights” (or “UN Norms”). The 2003 UN Norms for TNCs had been drafted by the UN Subcommission on the Protection and Promotion of ­Human Rights. The subcommission itself was ­under the authority of the UN’s Commission on ­Human Rights. The commission, now called the ­Human Rights Council, is the top UN forum for ­human rights. The 2003 norms proposal took an unsuccessful approach by trying to create binding h ­ uman rights obligations u ­ nder international law that would apply directly to TNCs. Neither the H ­ uman Rights Commission, nor its successor the H ­ uman Rights Council, ever voted to adopt the 2003 proposal for legally binding norms on the responsibilities of TNCs. If they had been successful, the 2003 TNC norms would have imposed on businesses the same ­human rights duties that apply to states ­under the

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vari­ous UN documents and regional ­human rights treaties (treaties that ­were discussed in the preceding chapters of this text). Binding l­ egal obligations for TNCs to re­spect h ­ uman rights, along with some sort of enforcement mechanism, would seem to be the “magic bullet” missing from global governance regarding corporate social responsibility. ­A fter the failure of the 2003 UN Norms, Ruggie wisely chose not to go down that path again. Ruggie wanted to avoid the divisive, counterproductive, and futile debate that arose over creating a treaty-­based approach to CSR. Advocates of the proposed 2003 norms, especially among ­human rights NGOs such as Amnesty International and ­Human Rights Watch, have long desired binding l­egal obligations for corporations directly u ­ nder international law. Anything less lacks the surefire enforcement “teeth” championed by proponents of the failed 2003 “Norms on the Responsibilities of Transnational Corporations.” Opponents of the 2003 UN Norms in the corporate sector stand strongly against the idea of an international treaty on TNCs and ­human rights. Furthermore, the text for the 2003 UN Norms “found no champions [among states] on the Commission, which declined to act” in ­favor of the subcommission’s proposal (Ruggie, 2013: xvii). In fact, the ­Human Rights Commission went so far as to adopt a 2004 resolution that specifically prohibited the subcommission from performing “any monitoring function” with regard to businesses and ­human rights (Jerbi, 2009: 306). With adamant opposition from international business, and no po­liti­cal w ­ ill among the member states at the UN, a treaty-­based approach to enforcement of CSR is not po­liti­cally feasible. The 2003 “Norms on the Responsibilities of Transnational Corporations” arrived stillborn at the UN’s most impor­tant h ­ uman rights body. Not wanting to abandon all efforts for a global CSR regime, the H ­ uman Rights Commission instead turned to a UK proposal for a high-­level special representative on business issues. Kofi Annan appointed Ruggie to the post, and his initial charge in 2005 was to identify the international ­human rights standards that already applied to corporate conduct. Ruggie expanded his work over time to include his final recommendations in the form of “soft-­law instruments” that became labeled as his “Protect, Re­spect, and Remedy Framework” (or simply the “Framework”) plus the “Guiding Princi­ples” (GPs). Ruggie discusses the details of the Framework and the Guiding Princi­ ples in his text Just Business (2013). Prior to detailing his output, Ruggie identifies six ways by which a global governance approach (in par­tic­u­lar) can help to advance CSR: (1) identify the responsibilities of governments and TNCs in relation to ­human rights; (2) identify how governments and TNCs

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­ ill “discharge” ­t hese responsibilities; (3) increase access to remedies for w victims of h ­ uman rights abuse by TNCs; (4) provide benchmarks that can be used to hold TNCs accountable for abuses of rights; (5) create “an authoritative international framework that could serve as a common platform for the dif­fer­ent actors involved”; and (6) avoid the quest for a single treaty or a legally binding document in ­favor of a multidimensional approach he describes as “polycentric governance” (2013: xlii–­xliii). Ruggie sees the “mandatory versus voluntary debate” over CSR as a dead end, and offers polycentric governance as his preferred alternative to e­ ither the quest for a binding treaty (which he sees as unworkable) or simply leaving TNCs to police themselves regarding h ­ uman rights (ibid.: 78). His means for operationalizing the polycentric approach is contained within the Framework and the Guiding Princi­ples. The “Protect, Re­spect and Remedy Framework” is, for Ruggie, a way to summarize what should be done, while the Guiding Princi­ples address how to do it. The tripartite Framework stresses three “pillars”: state duties to protect rights; corporate responsibilities to re­spect h ­ uman rights; and the need for greater access by victims to judicial and nonjudicial remedies for h ­ uman rights abuses. The first pillar of the Framework is, of course, nothing new. Governments have long been charged with a duty to protect rights ­under national and international laws. The second pillar, a call for TNCs to re­spect internationally recognized ­human rights, is also far from a novel idea. Ruggie notes that the corporate responsibility to re­spect rights is already a “well-­ established social norm” (ibid.: 91). Social norms are “enforced” only in a loose sense when TNCs are granted or denied a “social license” to operate by civil society (ibid.: 93). Ruggie cites the example of a huge gold mine in Peru that was shut down ­after “more than 10,000 ­people laid siege to the mine” in protest over the operation’s environmental destruction and attendant abuses of local indigenous populations (ibid.: xxxvii). Ruggie’s best contribution to our understanding of corporate responsibilities to re­spect rights is prob­ably his extended discussions of the need for TNC “due diligence” when it comes to ­human rights. Ruggie pre­sents no new ­legal requirements for TNCs regarding ­human rights. Rather, he f­ avors due diligence for TNCs and h ­ uman rights that is akin to the already familiar “risk-­based framing” that corporations engage in for most investments. Due diligence for h ­ uman rights impact would require TNCs to have an institutional capacity to “know and show” that their operations do not violate rights. “Transactional due diligence” would be based on

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the com­pany’s ability to assess and report on the “risks the com­pany’s activities . . . ​may pose to the rights of affected individuals and communities.” While operating in repressive states—­where t­ here often is no f­ ree speech, collective bargaining, gender equality, or right to privacy—­TNCs must still be expected to comply with international ­human rights standards “to the greatest extent pos­si­ble” (ibid.: 99–100). The third pillar of the Framework gets much less attention in Ruggie’s work. Access to remedy for victims of abuses inflicted by corporate sweatshops is the most problematic area of the Framework with regard to CSR. Ruggie notes in passing cases brought in U.S. courts u ­ nder the Alien Tort Claims Act (ATCA), such as ­t hose involving Unocal and Chiquita Brands, but provides few details (see Ruggie, 2013: chap. 1). I ­will return to a more in-­depth consideration of the ATCA and its relevance to CSR in this chapter’s conclusion. The Framework was endorsed by the UN ­Human Rights Council in 2008, and Ruggie then set to work on the Guiding Princi­ples that flesh out how the respective parties should follow through on the expectations expressed in the Framework. Th ­ ere are thirty-­one princi­ples in all; h ­ ere I w ­ ill summarize the ones most directly relevant to corporate social responsibility. The Guiding Princi­ples begin by restating the need for governments to enforce existing laws, ensure that corporate law is not a constraint on CSR, and guarantee that state agencies for trade and commerce observe all international h ­ uman rights obligations. Corporations that are owned, controlled, or supported by governments should require ­human rights due diligence. States must also be especially aware of the ­human rights dangers associated with business production in conflict zones. Fourteen of the thirty-­one princi­ ples are addressed to privately held businesses. Many of them speak in further detail of the complexities of ­human rights due diligence. TNCs need to take specific action to ensure that a corporate responsibility to re­spect h ­ uman rights is recognized by se­nior management and integrated into com­pany operations. According to the Guiding Princi­ples, due diligence must assess the impact of com­pany activities on rights holders, include partners in the supply chain, and monitor the work of security personnel. When adverse impacts are identified, businesses must cooperate in remediation, and support grievance mechanisms that are legitimate, accessible, predictable, equitable, and transparent (Ruggie, 2013: 108–118). The UN ­Human Rights Council unanimously endorsed Ruggie’s Guiding Princi­ples in 2011. H ­ uman rights NGOs w ­ ere “less enthusiastic.” The

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Framework and the Guiding Princi­ples fall short of the binding international ­legal requirements that most ­human rights activists would like to impose directly on TNCs. NGOs also tend to fear that the grievance mechanisms that are likely to come out of Ruggie’s work would be controlled by corporations (violators) themselves. If TNCs are able to establish their own grievance institutions, then the pro­cess would simply “reflect the power and imbalance between companies and rights-­holders and . . . ​become substitutes for judicial pro­cesses” (Ruggie, 2013: 121). Ruggie’s response to such fears is to argue that (in his opinion) the Guiding Princi­ples are presented in such a way as to minimize t­ hese dangers (ibid.).

Limits to the Guiding Princi­ples: Violations of Rights in the Informal Sector A further prob­lem with the Framework and the Guiding Princi­ples is the fact that Ruggie completely overlooks the rising importance of corporate reliance on production in the informal sector. The informal sector is a very large and steadily growing part of most global commodity chains, especially for producing garments and other textiles. According to an Oxfam study of rights and global supply chains, in parts of the Global South the informal sector accounts for as much as 40 ­percent of production for TNC goods (Raworth, 2004: 60). Joel Quirk describes the informal l­abor market as characterized by “instability of employment, an avoidance of most l­abor laws, and a tendency to remain outside normal rules of contract, licensing and taxation” (Quirk, 2014: 234, citing Munck, 2002). The informal sector is based on subcontracting work beyond major factories, often into private homes. According to Oxfam, “signs in the win­dows of neighbouring homes saying ‘ironers wanted’ give away the network of even cheaper homeworkers surrounding factory production” (Raworth, 2004: 60). Informal sector pay for ­t hese “homeworkers” is 40 ­percent less than that of a factory worker and includes no benefits (ibid.). The informal sector is characterized by an even greater reliance on w ­ omen’s ­labor, makes common use of forced and bonded ­labor, and lies well beyond the monitoring of ­labor conditions envisioned by Ruggie’s Framework and Guiding Princi­ples. While Ruggie claims that the due diligence recommended by the Guiding Princi­ ples is to include all steps in the supply chain (2013: 114), a report from the director general of the International ­Labour Organ­ization argues that this simply does not happen. According to the ILO, “social auditing is generally

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unable to get beyond the first tier of a com­pany’s supply chain meaning that . . . ​subcontractors often escape attention” (2009: para. 251). This is especially true of the informal sector. To date, t­ here is no evidence that TNCs are carry­ing through on their social audits to the level of the informal sector. According to Oxfam, to even have such expectations is “asking the impossible” (Raworth, 2004: 12). The informal sector is typified by debt bondage that holds workers in forced servitude. According to the ILO, handloom weaving, rice mills, and stone quarries in South Asia operate with bonded l­ abor (2009: paras. 71–73). The informal sector also includes “the brick kilns or small garment factories of . . . ​India and Pakistan, which are likely to include deeply embedded practices of bonded l­abour” (para. 232). Mi­grant laborers in the informal sector regularly have their passports and visas confiscated by employers, and wages are commonly withheld. Daily working conditions are often hazardous, and ­t here is usually no medical care provided by employers following on-­t he-­job accidents. Complaints about wages or working conditions are met with threats of termination and/or deportation. According to research by Irfan ul Haque that was sponsored by the UN Conference on Trade and Development, the “small-­scale informal sector” is a place where l­abor u ­ nions and collective bargaining do not exist (2004: 12). According to Oxfam, over half of all ­women garment workers in Bangladesh work without a contract, and “when workers are not formally recognized as employees, they fall outside the protection of l­abour laws. In some countries having no contract means having no ­legal recognition” (Raworth, 2004: 20). In the words of Madeleine Hultang, “the minute you start working in the informal sector you lose your rights as a worker” (2012: 157). To make ­matters even worse, corporate codes of conduct, social audits, and Ruggie’s due diligence have the unintended consequence of pushing more and more production into the informal sector where such practices cannot reach. Combined with increased demand for goods by Western TNCs, ­t hese practices induce subcontractors to progressively rely on the informal sector to a greater extent. “ ‘The TNC brands and retailers d ­ on’t allow us to do this,’ admitted one Sri Lankan [factory] man­ag­er, ‘however sometimes we are forced to in order to meet their deadlines’ ” (Raworth, 2004: 60). Ruggie’s recommendation that CSR in the f­ uture should focus on “risk-­based due diligence” regarding the corporate impact on ­human rights is woefully inadequate if it does not reach all the way down into the informal sector. The ILO has

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recommended that the practice of using informal sector production without ­labor contracts be ended in its entirety (ILO, 2009: 50, box 4.1). As TNCs seek to reduce costs while also pursuing CSR via codes of conduct and due diligence, the indirect result is to increase the use of informal sector uncontracted laborers by suppliers. Tens of millions of informal sector workers, most of them ­women, have been incorporated into TNC global supply chains (Barrientos, 2008). Furthermore, it is the suppliers who pay for the costs of CSR implementation at the bottom of the supply chain. Therefore, the costs of corporate social responsibility are passed down the supply chain, ultimately impacting the workers themselves and adding to the financial pressures that increase the use of noncontracted ­labor. Jessica Smith and Federico Helfgott argue that subcontracting within global supply chains effectively discredits most CSR claims by TNCs (2010). So what can be done? NGOs like Oxfam and the Co­a li­tion for Justice in the Maquiladoras are the best hope (in the short term) for exposing h ­ uman rights violations occurring in the informal sector. Beyond t­ hese NGO efforts at the grassroots level, t­ here is an obvious need for some sort of new enforcement mechanisms regarding ­labor rights in par­tic­u­lar. The best hope for enforcement (in the long run) of the ­labor rights obligations that fall on TNCs lies within the jurisdictions of national courts, especially ­under the U.S. Alien Tort Claims Act (ATCA). This chapter concludes with a consideration of ATCA in relation to TNCs.

Conclusion: H ­ uman Rights, TNCs, and the Alien Tort Claims Act Corporate social responsibility to date is fully voluntary. David Forsythe (2006) notes that the only significant exception to this rule is to be found in the Eu­ro­pean Union. All members of the EU, ­under the binding authority of the Eu­ro­pean Court of Justice, must guarantee that TNCs within their borders provide f­ ree movement of l­abor without discrimination regarding nationality, equal pay for men and ­women, equal pension benefits, and equal parental leave (Forsythe, 2006: 236–237). Of course, t­ hese obligations fall directly on the EU members’ governments, and only indirectly on the Eu­ro­ pean TNCs themselves. All efforts to establish an international treaty that applies ­human rights obligations directly to TNCs have failed (as in the case of the 2003 UN proposal on norms and responsibilities for TNCs). No

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governments have been willing to support such a treaty-­based approach. Efforts by NGOs and international social movements in ­favor of a binding treaty on TNCs can gain ­little or no traction without national governments as partners in that effort. But the choices for CSR in the ­f uture are not restricted to just voluntary efforts or an international treaty. A more robust long-­term alternative is to first establish a stronger l­ abor rights consensus at the global level and then enforce l­abor rights protection in an expanded way via national courts. Contrary to popu­lar belief, most ­human rights prosecutions are not conducted at the international level (à la the International Criminal Court). Prosecution of h ­ uman rights violations is primarily by domestic courts on a decentralized basis (Sikkink, 2011). The most impor­tant civil law for TNCs in this regard is the Alien Tort Claims Act of 1789. Prior to the 2004 Sosa decision by the U.S. Supreme Court (discussed below), this law was commonly referred to by the acronym “ATCA.” In more recent ­legal studies and court decisions since the Sosa case, the common term for the same law has been the Alien Tort Statute (or “ATS”). In the interest of consistency, I w ­ ill rely on the older term, “ATCA.”

A Brief History of ATCA and TNCs The Alien Tort Claims Act was ­adopted by the first U.S. Congress in 1789. It states (in its entirety): “The district courts ­shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (28 U.S.C. subsection 1350). The law of nations at that time contained universal prohibitions against three ­things: piracy, violations of safe conduct, and violations of ambassadorial immunity. U ­ nder ATCA, such international crimes committed against an alien can be prosecuted within U.S. courts when an alleged harm (or “tort”) has been done to them in violation of ­these customary international laws. This law fell into ­legal obscurity for almost two hundred years ­until it was invoked by ­human rights l­awyers in the 1980s to seek compensation for victims of egregious h ­ uman rights abuses abroad. The seminal h ­ uman rights case in regard to ATCA is Filártiga v. Peña-­Irala. The Filártiga ruling by the U.S. Court of Appeals, Second Cir­cuit court “opened the floodgates for ­human rights l­ awyers in 1980 when it determined that torture was a violation of the law of nations and that an alien could bring a tort action in a United States district court u ­ nder the ATCA”

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(Notaristefano, 2005: 4). Both parties—­t he Filártigas and Peña-­Irala—­were residents of Paraguay, when, the plaintiffs alleged, Joelito Filártiga was kidnapped and tortured to death by a police inspector general named Americo Peña-­Irala due to the po­liti­cal activism of Joelito’s ­father, Dr. Joel Filártiga. Dr.  Filártiga sought criminal action in Paraguayan courts against Peña-­ Irala for his son’s death without success. Peña-­Irala ­later entered the United States in 1978 and lived in Brooklyn. When Dolly Filártiga (Joelito’s s­ ister, who was living in Washington, D.C.) learned of Peña-­Irala’s whereabouts, the ­family filed a civil suit ­under ATCA seeking $10 million in compensatory and punitive damages. The U.S. courts eventually ruled in ­favor of the Filártigas. Torture is clearly a violation of international law, and ATCA granted jurisdiction over the case b ­ ecause both parties w ­ ere within the United States. In part, the Second Cir­cuit decision held that “the torturer has become—­like the pirate . . . ​before him—­hostis humani generis, an ­enemy of all mankind.” The court holding in the Filártiga case was “codified by Congress” with the passing of the Torture Victim Protection Act of 1991, and several subsequent ATCA cases have involved violations of the TVPA as well (Notaristefano, 2005: 7). The Second Cir­cuit also expanded Filártiga during 1995 in the case of Kadic v. Karadzic by holding that prohibitions against torture are not confined to state action. Kadic held that nonstate actors can also be held liable ­under ATCA for torture, genocide, or crimes against humanity (ibid.). In the wake of Filártiga, U.S. courts have upheld the use of ATCA for prosecuting arbitrary imprisonment, summary executions, and war crimes (ibid.: 10). Consistent with Filártiga, ATCA has been used to sue dictators from Argentina, Bosnia, Ethiopia, Guatemala, Haiti, the Philippines, and Somalia “whenever an alleged torturer is found and served with pro­cess by an alien within our borders” (Compa, 2002: 66). The next step, then, became widespread efforts to “extend the Filátiga princi­ple to actions by U.S. multinational companies implicated in gross abuses of workers’ rights” (ibid.). All of the following TNCs have been sued ­under ATCA for ­human rights violations: Archer Daniels Midland, CACI, Chiquita, Chevron-­Texaco, Cisco, Citicorp, Coca-­Cola, Daimler-­Chrysler, Del Monte, DynCorp, ExxonMobil, Ford, Gap, General Electric, General Motors, IBM, Isuzu, Levi Strauss, Nestle, Occidental Petroleum, Shell, and Unocal. Ruggie puts the total number of cases filed against TNCs u ­ nder ATCA at around one hundred (2013: xxxiii). A website for USA*Engage (usaengage​.­org, sponsored by the National Foreign Trade

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Council, which opposes ATCA) lists a total of seventy-­five cases ­under ATCA that are e­ ither “pending” or “closed.” Most of t­ hese cases have been dismissed by the courts, and no case has ever gone so far as to reach a jury verdict. Unocal settled out of court for $30 million in response to allegations involving construction of a gas pipeline in Burma (Myanmar), charges that included torture, murder, rape, and forced ­labor at the hands of the Burmese military (Unocal’s partners in the venture) (Ruggie, 2013: xxxiii). Doe v. Unocal has been called a “pathbreaking case” ­because the courts held that the Alien Tort Statute does not require that TNCs have their corporate headquarters in the United States to be sued ­u nder ATCA. Rather, all that is required is that the TNC have a “substantial business presence” in the United States to be served (ibid.: 12). TNCs are subject to ATCA for ­human rights violations if the corporation has “sufficient contacts with the U.S., acted together with a government entity or official, and had sufficient control over the violations” (Center for Justice and Accountability, 2014). Doe v. The Gap was settled for $20 million in response to charges that many TNCs operating in the U.S. territory of the Northern Marianas Islands ­were using “forced l­abor, involuntary servitude and peonage” (Pagnattaro, 2004: 217–218). Shell settled out of court for $15.5 million in response to a lawsuit that revolved around mistreatment of the Ogoni ­people and the execution of the activist Ken Saro-­Wiwa in Nigeria (Mouawad, 2009). It is beyond the scope of this chapter to summarize all of the ATCA cases that have involved TNCs. However, two cases have been especially impor­tant in setting the current limits allowed by the Supreme Court for ATCA cases. Th ­ ese are Sosa v. Alvarez-­Machain and Kiobel v. Royal Dutch Petroleum. Both of ­t hose cases require further discussion.

Limits to ATCA Cases Set by the Rulings in Sosa (2004) and Kiobel (2013) While not a TNC case per se, the 2004 Supreme Court decision in Sosa is impor­tant for the limits it imposed on all ATCA cases. Prior to Sosa, the restrictions on cases filed ­under ATCA w ­ ere relatively ­simple. Necessary conditions for any ATCA suit require that the petitioner be an alien or noncitizen of the United States, a tort (harm) must be alleged, and the tort must be a violation of the law of nations (Pagnattaro, 2004: 220). The defendant must also be served within the United States. Any TNC that incorporates within

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the United States or any corporation that has “a princi­ple place of business ­here” is “subject to federal jurisdiction” and hence subject to ATCA. The Filártiga case established the pre­ce­dent that international law must be interpreted in evolutionary terms (as it has changed over time) and not just in terms of how international law existed in 1789 (when ATCA was first a­ dopted). This evolutionary approach to ATCA holds open the possibility that “as t­ here is more international agreement about ­labor rights, the scope of the acts covered by ATCA w ­ ill broaden” (ibid.: 222–223). ATCA is the l­egal basis for civil suits only, not criminal charges. Pos­si­ble remedies u ­ nder ATCA include compensation, punitive damages, a court order to end the alleged practices, and costs (including l­ egal fees). ATCA itself has no statute of limitations, but in practice the courts have applied the same time limit on ATCA cases that is written into the 1991 Torture Victim Protection Act, that being ten years (ibid.: 260–261). The Sosa ruling added the conditions that ATCA cases must be ­limited to only t­ hose violations of international law that have a “definite content and ac­cep­tance among civilized nations” (quoted in Liptak, 2013). Sosa requires that the international laws invoked to justify an ATCA suit be specific, universal, and obligatory (Notaristefano, 2005: 46). Courts have, at least since the time of Sosa, also recognized the power of the U.S. president to quash any par­tic­u­lar ATCA case if it is deemed to harm Amer­i­ca’s national interests or endangers U.S. foreign policy (ibid.). The particulars of the Sosa lawsuit are complicated, but for the purposes of this chapter a short summary should suffice. The case began in 1985 when a U.S. agent for the Drug Enforcement Administration (DEA) was kidnapped and taken to Guadalajara, Mexico, where he was tortured for two days while being questioned and then murdered. DEA officials ­later claimed that Dr. Humberto Alvarez-­Machain kept the DEA agent alive during the torture in order to extend his interrogation. Alvarez-­Machain was indicted in the United States, and the DEA arranged for Mexican nationals, including Jose Sosa (a former policeman), to abduct Alvarez-­Machain. He was held overnight and then flown from Mexico to Texas, where he was arrested by federal agents. Alvarez-­Machain was tried and acquitted in 1992. He then filed a civil action against Sosa, the United States, and several DEA agents, charging that his one-­day detention before his subsequent arrest in Texas was a violation of international law. The lower courts found in ­favor of Alvarez-­ Machain and awarded him $25,000. Sosa then appealed. The Supreme Court overturned the lower courts’ rulings and found in f­ avor of Sosa. The thrust

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of the majority decision was that the mistreatment of Alvarez-­Machain, in par­tic­u­lar the overnight detention before being charged, did not rise to the level of a violation of international law that would be actionable ­under ATCA. When the Supreme Court handed down its decision in Sosa, it determined that federal courts can recognize private c­ auses of action for certain torts in violation of international law, but it also applied new limitations on ATCA suits. First, a claimant must exhaust all pos­si­ble (foreign) domestic l­ egal remedies before asserting a claim in U.S. federal courts. Second, the court recognized the power of the executive branch to halt proceedings in any par­tic­u­lar case if it would have a negative impact on American foreign policy (Notaristefano, 2005: 17–20). The George W. Bush administration argued during the Sosa hearing in f­ avor of narrowing the scope of ATCA and at other times called for the law’s immediate repeal. The most impor­tant outcome of the Sosa decision in regard to corporate liability for violations of rights was the position the Supreme Court took on the scope of ATCA. In Sosa, the Supreme Court held that ATCA gives federal courts jurisdiction over only t­ hose violations of international law that are defined with g­ reat specificity and that are universally accepted by the “civilized world.” Sosa and a series of related rulings established the clear-­cut standard that the only actionable violations of international law u ­ nder ATCA are ­t hose norms that are specific, universal, and obligatory. This is where the case law on ATCA stood prior to the Kiobel decision of 2013. In Kiobel v. Royal Dutch Petroleum, the Supreme Court added further restrictions on ATCA, this time specifically in regard to ­t hose cases that can be brought against TNCs. The Kiobel case was a result of the long and checkered past that the Shell oil com­pany has had in Nigeria. Esther Kiobel, a Nigerian national living in the United States, sued Shell (formerly Royal Dutch Petroleum) on behalf of herself and her late husband, Dr. Barinem Kiobel. They w ­ ere former residents of Nigeria’s Ogoniland in the oil-­rich Niger River delta. Shell’s subsidiary in Nigeria has allegedly been complicitous in violations of a wide range of po­ liti­cal, economic, and environmental rights at least since the 1990s (Frynas, 2003). The Kiobels alleged that Shell aided and abetted the Nigerian military’s campaign of beatings, murders, rapes, and looting directed against the Ogoni ­people who had protested the oil operations (especially the attendant environmental destruction). They also alleged that Shell provided the Nigerian forces with food, transportation, compensation, and use of corporate property. The suit filed in New York district court ­under ATCA claimed that Shell

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had ­v iolated international laws prohibiting torture, extrajudicial killings, crimes against humanity, arbitrary arrest and detention, and forced exile, as well as violating the rights to life, security, and f­ ree association. The Supreme Court heard oral arguments in the Kiobel case on two occasions. In 2012, oral arguments before the court (now referred to as Kiobel I) focused on w ­ hether TNCs can be sued u ­ nder ATCA. The Second Cir­cuit of the Court of Appeals held in 2010 that TNCs could not be sued u ­ nder the terms of the Alien Tort Statute. The Supreme Court overturned that decision and then ordered the parties to return at a ­later date. The court also expanded the debate during its second hearing to include the issue of extraterritoriality—­ specifically, w ­ hether suit could be brought u ­ nder ATCA for a tort committed in a foreign country. The decision handed down in 2013, now commonly referred to as Kiobel II, is the most impor­tant ruling to date regarding ­human rights violations and TNCs. Kiobel II (2013) established a strong presumption against application of ATCA to crimes committed outside of the United States. The Kiobel decision argues that such crimes must “touch and concern” American interests “with sufficient force” so as to overcome the presumption against applying U.S. law beyond American borders (quoted in Altschuller, 2014). Subsequent cases, especially the 2014 decision by the Fourth Cir­cuit Court of Appeals in Al Shimari v. CACI (see below) have found that the “touch and concern” requirement can be met in some cases, particularly cases of torture.

TNCs, ATCA, and Global Governance for CSR As per the 2004 Sosa decision, abuses alleged u ­ nder an ATCA case must have a “definite content,” and prohibitions against such action must have widespread “ac­cep­tance among civilized nations.” As per the Kiobel II decision, abuses alleged in f­ uture suits u ­ nder ATCA must (1) occur within the United States, or (2) be perpetrated by a U.S. citizen or a corporation subject to U.S. jurisdiction, or (3) be conduct that adversely and substantively affects American interests. Furthermore, any alleged harm that occurs abroad must “touch and concern” U.S. interests “with sufficient force” to overcome the presumption against extraterritorial application of U.S. law. While the Supreme Court has—­with ­these restrictions—­set the bar relatively high for ­future enforcement of international h ­ uman rights laws upon TNCs u ­ nder ATCA, opportunities w ­ ill remain for domestic enforcement of workers’ rights. This is a classic case of both the need for and the potential benefits of

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global governance. Global governance is the only approach to such topics that can bring together efforts at the global level to establish new “definite content” for protection of ­labor rights (see the discussion of a new social clause at the WTO in the next chapter), and then wed ­those efforts to an understanding of domestic enforcement. Post-­Kiobel cases, especially Al Shimari v. CACI, do allow TNCs to be sued ­under ATCA, if the conditions of Sosa and Kiobel are met. Al Shimari was a victim of the horrible torture tactics applied in Abu Ghraib prison during American occupation of Iraq (see Chapter 5 for a discussion of American war crimes in Iraq). CACI International is a private corporation that contracted with the U.S. government to interrogate prisoners in Abu Ghraib. Al Shimari and other Iraqi victims allege that they w ­ ere brutally beaten, subjected to physical and psychological torture, and then ­later released having never been charged. A 2014 ruling by the Fourth Cir­cuit Court of Appeals is the first major decision in the “ongoing b ­ attle over the meaning and interpretation of Kiobel” (Tyler and Farbstein, 2014). In the Al Shimari case, the defendants are U.S. citizens. The Fourth Cir­cuit ruled that ATCA claims against CACI satisfied Kiobel’s “touch and concern” test (Center for Justice and Accountability, 2014). At the time of this writing, the Al Shimari case continued to work its way through the U.S. court system. ATCA in the ­f uture ­w ill remain applicable to U.S. TNCs that commit egregious violations of h ­ uman rights regarding torture, genocide, and crimes against humanity. However, if we are to go beyond t­ hese violations of personal security rights, then other areas of h ­ uman rights (especially l­ abor rights) must first be advanced at the international level to approach the jus cogens status of the prohibitions that already exist against torture and genocide. ATCA was originally drafted to put international piracy u ­ nder sanction of U.S. law. The scope of ATCA has since been expanded to bring TNCs u ­ nder its ambit for violations of ­human rights in other jus cogens areas such as torture. The court decisions from Sosa to Kiobel have defined “­today’s pirates” to include torturers and genocidaires. To employ ATCA for global governance of l­abor rights w ­ ill require greater efforts at the global level to make basic ­labor rights part of jus cogens in international law. Jus cogens are ­t hose areas of law that include “preemptory” norms “from which no derogation is permitted,” including genocide, torture, slave trading, and po­liti­cal disappearances (Pagnattaro, 2004: 223). Ruggie argues that ­t here is “no definite list” of jus cogens norms at this time in relation to TNCs and h ­ uman rights (2013: 66–67). But this is precisely my point.

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A global governance approach to the effective enforcement of CSR obligations in the f­ uture suggests the following sequence of necessary steps. First, universal ­labor rights must be expanded and promoted at the global level ­until they approach jus cogens status. The best way to make ­labor rights a new jus cogens area of international law (similar to existing prohibitions against torture or piracy) would be to establish a new social clause within the World Trade Organ­ization (WTO). WTO trade regulations are legally binding on all 164 member states within that organ­ization. Th ­ ese states represent over 96 ­percent of global trade and over 96 ­percent of global GDP (WTO, 2013). One could scarcely find a better source for “specific content,” or one that would represent wider “ac­cep­tance among [almost all] civilized nations.” Specific content and widespread ac­cep­tance are standards for jus cogens law cited in the Sosa and post-­Sosa decisions handed down by the Supreme Court ­under ATCA. Second, ­t hese same specific and widespread global standards for protecting ­labor rights would be best enforced through national courts (Leonard, 2015; Sikkink, 2011; Pagnattaro, 2004). Once core l­abor standards are established as a jus cogens area of law applicable to all nations (largely via a robust WTO social clause), then ­labor rights could become enforceable in U.S. courts u ­ nder ATCA, in much the same way that jus cogens prohibitions against torture are already enforceable. Chapter 4 begins with a discussion of precisely t­ hese rights—­t he core ­labor standards (CLS) promoted by the International ­Labour Organ­ization. To achieve enforceable global governance of TNC social responsibility via ATCA in the ­future, core l­ abor standards need to be expanded and respected similar to the existing international consensus against slavery, torture, and genocide. The best hope to advance and enforce CLS requirements is to first create a binding social clause that protects ­labor and environmental rights within the WTO. The next chapter, therefore, ­w ill pre­sent a discussion of ­labor rights, universal core ­labor standards, and the social clause debate at the World Trade Organ­ization.

Postscript: The Rana Plaza Disaster, Five Years L ­ ater This chapter opened with the events of the Tazreen factory fire and the 2013 Rana Plaza disaster. The collapse of the Rana Plaza factory, and the loss of more than 1,100 lives t­ here, forced a series of subsequent CSR developments in Bangladesh. Bangladesh is an impor­tant harbinger for CSR in Asia ­because it is second in the world (to China) in terms of global textile exporters

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(Barrett, Baumann-­Pauly, and Gu, 2018). Before moving on to l­ abor rights in Chapter 4, a brief summary of the post–­Rana Plaza conditions in Bangladesh is in order. The ready-­made garment sector in Bangladesh comprises 7,000–8,000 factories in all, only about 1,650 of which are monitored by the government. ­Because of the Rana Plaza disaster, Western TNCs that rely on production in Bangladesh formed two corporate co­a li­tions: 220 Eu­ro­pean TNCs formed the Accord for Building Safety in Bangladesh; and twenty-­nine American corporations (including Walmart and the Gap) formed the Alliance for Bangladesh Worker Safety. ­These two organ­izations, combined, have inspected 2,800 factories since the 2013 disaster, and they have required their contractors to spend somewhere between $600 million and $900 million on remedial efforts to improve safety (primarily for fire prevention, electrical safety, and structural integrity of buildings; see Barrett, Baumann-­Pauly, and Gu, 2018: 1 and 15). The Accord for Building Safety and the Alliance for Bangladesh Worker Safety suspended as suppliers 264 factories that failed to comply with inspections and remedial efforts (ibid.). The government also claims to have shut down approximately 500 of the factories (out of 1,650 total) u ­ nder its supervision (ibid.: 19). A recent court settlement between u ­ nions and two Eu­ro­pean apparel brands (unnamed due to the terms of the settlement) resulted in $2.3 million being awarded to textile workers’ ­unions in Bangladesh due to “delays” by the TNCs in “remedying life-­t hreatening ­hazards at its factories” (Rushe, 2018). Union leaders who have or­ga­nized walk-­outs by workers in protest of low wages ­after Rana Plaza have been beaten and tortured by the police (Safi and Rushe, 2018). Unfortunately, approximately one-­t hird of garment factories in Bangladesh are subcontractors, most of which operate in the informal sector beyond all monitoring or inspections (Barrett, Baumann-­Pauly, and Gu, 2018: 21). The ILO estimates that at least nine hundred new factories have opened up since the Rana Plaza disaster, almost all without inspections (ILO, 2018). The U.S.-­ led Alliance closed down operations in 2018. The European-­based Accord plans to cease operations in 2021. When ­these Western TNCs end their oversight, the government of Bangladesh ­will take immediate responsibility for the factories u ­ nder Alliance and Accord supervision (over 2,300 in all). Bangladesh w ­ ill then be directly responsible for at least four thousand factories (perhaps half of all in the country) without the staffing needed to maintain an adequate inspection regime. According to leaders of the Accord, “major,

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life-­threatening concerns remain outstanding in too many factories” and “the government is not ready to take over and regulate factories at a satisfactory level” (quoted in Safi and Rushe, 2018). Both the government and business groups in Bangladesh claim, falsely, that subcontracting “is over and done with.” This claim was falsified by a New York University field research team that found that one-­t hird of the production in Dhaka still comes from subcontractor factories (Barrett, Baumann-­Pauly, and Gu, 2018: 21). The NYU team visited one subcontractor in the same neighborhood where Rana Plaza once stood. The fa­cil­i­t y was deemed to be structurally unsafe, and despite displaying “an extensive set of blueprints describing a fire-­prevention system,” the owner admitted that “he has not installed any of the equipment described by the blueprints” (ibid.: 12). Conditions for some workers in Bangladesh have improved since the Rana Plaza disaster, in many cases due to the efforts of Western TNCs within the American Alliance or the Eu­ro­pean Accord. However, this foreign oversight ­will soon come to a full stop, and the abuses committed by subcontractors in the informal sector remain beyond the reach of all CSR efforts. Therefore, the concerns raised by this chapter’s review of CSR w ­ ill continue to affect Bangladesh and the rest of the Global South for the foreseeable f­ uture. The best chances for workers around the globe in the long run require a new WTO social clause, one of the key topics for the next chapter.

Chapter 4

Testing Theories of ­Labor Rights and Development

The relationship between l­ abor rights and economic development has been a topic of intense debate for scholars and diplomats alike. Since the 1990s, efforts by the Western economic powers to bring l­abor standards u ­ nder the authority of the World Trade Organ­ization (WTO) have been opposed by the less developed states of the Global South. In academic circles, a series of studies has produced conflicting evidence on w ­ hether curtailment of ­labor rights promotes or hinders rapid economic development. Some of this research centers on case studies. Other published works have employed ­aggregate, cross-­national data to establish the empirical nature of the labor-­ rights-­to-­development connection. H ­ ere I begin with the policy debates, especially ­t hose at the WTO regarding proposals to link ­labor standards to multilateral trade agreements. I also summarize opposing theories that posit restriction of l­abor rights as e­ ither promoting or hindering rapid development. That discussion ­will lead to a review of prior quantitative studies of the linkage between core ­labor standards and development. This information ­will then serve as background for my own novel approach to testing theories of ­ labor rights and development. I conclude by summarizing the implications of the test results for the policy debates, and pre­sent a model that could serve to advance the WTO social clause agenda.

­Labor Rights and Diplomacy Prior to the WTO The debate over ­labor rights and international trade is often associated with WTO politics following the anti-­globalization protests at the 1999 “­battle in

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Seattle” (the 1999 WTO Ministerial Meeting). However, attention to international ­labor regulation goes back at least as far as the late eigh­teenth c­ entury. In 1788, Swiss banker Jacques Necker argued that one nation’s policy on a Sunday day of rest must necessarily take into account w ­ hether or not other industrializing nations followed suit (Hepple, 2005). During the 1840s, Alsatian manufacturer Daniel Legrand implored industrialized nations to create a common set of international l­abor standards or risk rebellions from the working masses (ibid.). In 1890, fourteen states came together in Berlin to discuss the issues of child ­labor and the length of the work day. The International ­Labour Office was established in Basel during the early 1900s as a scientific institute devoted to the protection of workers. Between 1904 and 1915, several bilateral agreements on l­abor issues w ­ ere signed among Eu­ro­ pean nations (ibid.). A key event in the history of international l­abor regulation was the creation of the International ­Labour Organ­ization (ILO) in 1919. First established in conjunction with the League of Nations and the Treaty of Versailles, the ILO has since ­adopted 185 conventions and 193 recommendations (Potter, 2006). Perhaps most relevant to this study is the 1998 ILO Declaration of Fundamental Princi­ples and Rights at Work. The 1998 ILO declaration’s princi­ ples established a set of rights that are now commonly referred to as international “core l­ abor standards” (CLS): freedom of association, collective bargaining, prohibitions against forced ­labor, prohibitions against child ­labor, and nondiscrimination in the workplace. Each area of CLS is also addressed in one of the seven core ILO treaties that date from 1930 (slave ­labor) to 1999 (worst forms of child ­labor). The ILO was created with a unique tripartite structure. ILO representatives come from member governments, business leaders, and ­labor organ­izations. Unfortunately, of the 175 ILO member states, most have ratified less than 25 ­percent of all ILO conventions (Potter, 2006). Ratification of ILO conventions has been especially low in the recent past. Most ILO conventions since 1984 have a ratification rate among member states of less than 10 ­percent (ibid.). The United States has ratified only two of the seven ILO conventions that promote core ­labor standards, while at the same time claiming to do a better job of respecting ­those rights than most other countries (Alston, 2004). Ratification of ILO conventions has often been used in prior research as a proxy for mea­ sur­ing state compliance with international ­labor standards (see below). In 1947, the newly created United Nations released the Havana Charter, an unsuccessful attempt to create an International Trade Organ­ization (ITO).

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The failed attempt to create the ITO was the first post–­World War II effort to establish an international regime with direct authority over ­labor standards. The Havana Charter was opposed by the U.S. Congress and the ITO never came into being. However, it is in­ter­est­ing to note that Article 7 of the failed Havana Charter would have created an explicit link between ­labor standards and trade: “All countries have a common interest in the achievement and maintenance of fair l­ abor standards relating to productivity, and thus the improvement of wages and working conditions. . . . ​The members recognize that unfair ­labor conditions, particularly in production for export, create difficulties in international trade and, accordingly, each member ­shall take what­ever action may be appropriate and feasible to eliminate such conditions within its territory” (cited in Alben, 2001: 1431). Opposition to the proposed ITO in the U.S. Congress was due to the strong l­ egal authority that the Havana Charter would have granted the ITO. The Havana Charter would have created a judicial system within the ITO that could prosecute nations that ­v iolated trade rules. The ITO’s judicial system, with the International Court of Justice as its highest court, would have had the power to issue legally binding decisions against member states (Archer, 2004). Congressional objections that the ITO would compromise American sovereignty prevented President Truman from putting the Havana Charter before Congress. No congressional vote was ever taken on the Havana Charter. U.S. economic production was roughly half of global economic production in 1947 (Blake and Walters, 1992). Therefore, without American participation, the ITO could never have effectively regulated international trade. Due to U.S. opposition, especially in Congress, the ITO never came into being. Failed efforts to create the ITO made the GATT agreements the governing system for international trade by default. The General Agreements of Tariffs and Trade (GATT) constituted the de facto trade regime from 1947 ­until the establishment of the WTO in 1995. GATT was a weak and loosely or­ga­ nized series of trade agreements that sought primarily to reduce tariffs and nontariff barriers to trade. The United States initially preferred GATT to the proposal for an ITO ­because GATT did not have the power to impose binding sanctions for noncompliance with trade agreements. Unlike the ITO, the GATT agreements contained no rules for l­abor standards (other than discouraging the use of prison ­labor). However, ­t here ­were a few unsuccessful attempts to add a l­ abor rights dimension to the GATT system during the Cold War era.

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Ironically, a­ fter torpedoing the creation of the ITO, the United States submitted a proposal to reform GATT in 1953 that sounded a lot like Article 7 of the failed Havana Charter. The U.S. proposal read (in part):“The Contracting Parties recognize that all countries have a common interest in the achievement and maintenance of fair ­labour standards related to productivity . . . ​and that unfair ­labour conditions . . . ​, particularly in production for export, may create difficulties for international trade which nullify or impair benefits ­u nder this Agreement” (cited in Howse, Langille, and Burda, 2006: 177). The U.S. proposal in 1953 was not a­ dopted. A group of Eu­ro­pean nations also failed with a similar proposal in 1983 to add a l­abor rights clause to GATT (ibid.). In 1986, the United States called for the creation of a working group to investigate the possibility of adding a social clause that would link ­labor rights to trade in GATT agreements. The 1986 proposal was supported by Western Eu­ro­pean nations but also widely opposed by the Global South. A GATT working group to create a social clause on ­labor rights and trade was never established. This ­labor rights debate between the United States and Eu­ rope (on one side) and developing nations in opposition carried over into the era of the WTO.

The ­Labor Rights Debate at the WTO The World Trade Organ­ization was created during the Uruguay Round (1986–1994) of GATT negotiations. Since its inception in January of 1995, the WTO has been the international regime to govern global trade. The WTO has also become the epicenter for diplomatic debate over proposals for a social clause that would link international trade to basic ­labor rights. The most notable difference between the GATT system and the WTO is the fact that the WTO can impose binding economic sanctions upon its members, a power that the weaker and more loosely or­ga­nized GATT agreements never had. The United States and most Eu­ro­pean nations ­favor linkage between core ­labor standards and trade. The Global South stands adamant in its opposition to such linkage. An early notable success for the opposition came in the form of the Singapore Declaration. The Singapore Declaration was released during the 1996 WTO Ministerial Meeting. Prior to the Singapore Declaration, the United States and Eu­rope once again called for a working group to address the issue of linkage. The possibility of a social clause was widely discussed in Singapore, but no working group was established.

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The Global South prefers to restrict promotion of l­ abor rights to the ILO. The ILO, unlike the WTO, has no binding authority to impose sanctions against nations that do not comply with its agreements. By keeping l­abor rights out of the WTO, and ­under the purview only of the ILO, lesser developed nations can avoid economic sanctions for l­abor rights violations that the WTO would have the power to inflict. The Singapore Declaration (1996) thus represented a victory for the Global South when it stated in paragraph 4: “We renew our commitment to the observation of internationally recognized core ­labour standards. The International ­Labour Organ­ization (ILO) is the competent body to set and deal with t­ hese standards and we reaffirm our support for its work promoting them. . . . ​We reject the use of l­ abour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-­wage developing countries, must in no way be put into question” (cited in Howse, Langille, and Burda, 2006: 180). India has often taken the lead at WTO conferences to pre­sent arguments in opposition to a ­labor social clause. As reflected in the Singapore Declaration, India and the rest of the Global South see linking l­abor rights to trade as a thinly disguised form of protectionism. They fear that giving the WTO authority over l­abor standards would lead to penalties against lesser developed countries. From their perspective, a social clause in WTO treaties to protect l­abor rights would allow for new forms of discriminatory treatment against goods from the Global South. It would legitimize new barriers to imports from the Global South into the Global North. India and its allies champion the ILO as the only proper international forum for advancing l­ abor rights. India’s opposition to a l­ abor social clause has deep roots and serves as an illustrative example of re­sis­tance by developing nations against expansion of the WTO mandate into the area of core l­ abor standards. In 1995, the International Confederation of F ­ ree Trade Unions (ICFTU, a nongovernmental organ­ization) sent a del­e­ga­t ion to India seeking the Indian government’s support for linkage between trade and ­labor rights. The ICFTU’s general secretary was told that India could not support linking core ­labor rights to trade within the WTO (Kolben, 2006). India’s ministers of commerce and ­labor went on to say that India would aggressively oppose any such proposal. Domestic u ­ nion leaders in India similarly rebuffed the ICFTU del­e­ga­tion, and a “slew of editorials” appeared in India’s papers at the time, arguing that a l­ abor rights clause in the WTO would be contrary to the best interests of India (ibid.: 237). Nongovernmental organ­izations in India, both

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consumer rights groups and t­ hose with ties to l­ abor u ­ nions, have engaged in active campaigns against linkage. India has also been a key player in organ­izing the international co­a li­tion of lesser developed nations in opposition to linking ­labor rights and trade. It hosted a conference of l­abor ministers from eighty-­five developing nations that released the Delhi Declaration one year prior to the Singapore Declaration. The Delhi Declaration anticipated the Singapore Declaration by stating the Delhi conference’s unan­i­mous opposition to adding a l­ abor rights dimension to the WTO (ibid.). India’s leadership was crucial as well for the drafting of the Singapore Declaration, which insisted that the ILO, not the WTO, is the only competent body to deal with l­ abor standards. The Doha Round of WTO trade negotiations began in 2001 as a followup to the Uruguay Round. Throughout the contentious meetings of the Doha Round, India once again led the charge by the Global South to keep l­abor rights off of the WTO agenda. The Doha Ministerial Declaration of 2001 excluded l­abor rights from the Doha Developmental Agenda. In India’s view, “the Doha meeting agreed that ­labour standards would be kept out of the next trade round” (Aiyar, 2001). India continues to insist that “­labour standards [are] to be dealt with by the International ­Labour Organ­ization, and not taken up by the WTO, where they could be distorted into a protectionist device aimed at low-­income countries” (ibid.). Finance Minister P. Chidambaram from India stressed his nation’s opposition to linkage between ­labor rights and trade when he said: “It is impor­tant at this stage to not overload the [WTO] agenda or create fresh non-­tariff barriers by introducing distracting ­labour standards . . . ​which must be addressed in separate fora” (cited in Press Trust of India, 2008). On the other side of this debate stands the United States and Western Eu­ rope. The Eu­ro­pean Union has consistently advocated a broader agenda for the Doha Round that would include both ­labor rights and environmental standards as new criteria for multilateral trade agreements. Eu­ro­pean diplomats often use the terms “social justice,” “social development,” and “just social clauses” to refer to their proposals that would broaden the WTO mandate to include core l­abor standards (CLS). Ministers from Austria, Belgium, the Czech Republic, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Switzerland, and the United Kingdom have all voiced public support for linkage between CLS and trade in ­f uture WTO treaties (Engelhardt, 2010).

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Prior to the WTO Ministerial Meeting in Seattle (1999), President Clinton declared that a working group on ­labor rights should be established in the WTO. According to Clinton, the working group would “develop t­ hese core l­abor standards, and then they o ­ ught to be a part of ­every trade agreement, and ultimately I would f­ avor a system in which sanctions would come for violating any [­labor] provision of a trade agreement” (Paulson, 1999). Clinton went on to say that “all of us who come from wealthy countries where most p ­ eople have the basic necessities of life, we o ­ ught not to buy from countries who violate child ­labor norms, we ­ought not to buy from companies that basically oppress their workers with ­labor conditions and lack of a living income, and ­t here’s a way to strike the right balance ­here so that we put a more ­human face on the global economy” (ibid.). President George W. Bush continued this theme in 2001 when he “assured the U.S. Congress that l­ abor and environmental standards w ­ ill be at the center of the Doha Round” (Aiyar, 2001). B ­ ecause of the “high priority Congress attaches to ­labor standards . . . ​[Bush] knew he had to claim that ­labor and environmental standards would be on the agenda of all f­ uture trade talks, ­whether for the expansion of NAFTA or the WTO” (ibid.). Congress has also insisted that ­labor standards be part of all bilateral ­f ree trade agreements. Treaties negotiated over the past de­cade with Colombia, Jordan, Panama, and South K ­ orea would be cases in point (Aiyar, 2001; Bhagwati, 2011). The debate over linking ­labor rights to trade at the WTO has been b ­ itter and acrimonious. Prominent Indian-­born economist Jagdish Bhagwati has provided significant intellectual support for the anti-­linkage positions in this debate. Bhagwati, a professor at Columbia and a se­nior fellow at the Council on Foreign Relations, is perhaps the best-­k nown economist who disputes claims that all nations should be held to the same ­labor standards. When discussing the failure of the Doha Round to finalize agreements in any area of trade, Bhagwati (2008) finds it “doubly offensive” that support for a WTO social clause “is advanced in the language of altruism: not by saying frankly that it is b ­ ecause ‘our [Western] u ­ nions are worried about competition’ but by pretending that it is ‘in your [non-­Western] workers best interests.’ ” Bhagwati criticizes the United States in par­tic­u­lar for failing to ratify the ILO’s core l­ abor conventions, while at the same time trying to “impose” ­labor standards on other nations via bilateral and multilateral trade agreements. He calls such U.S. policy “export protectionism” (ibid.). Conversely, t­ hose diplomats who champion a new social clause on l­abor rights for the WTO have their own academics and theorists to draw on in

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support of their views. One of the reasons that the WTO policy debate over trade and ­labor rights is so intractable is ­because ­t here are opposing analytical lit­er­a­tures that each side can draw on. I turn now to the theoretical debate over ­labor rights and development. As we s­ hall see, each side of the policy debate relies on an alternative theory of development to support its case.

Conflicting Theories of L ­ abor Rights and Economic Development Advocates of a WTO social clause on ­labor rights invoke economic theories to support their policy arguments. Many of ­t hese theories focus on the relationship between employee compensation and worker productivity. Denis Arnold and Laura Hartman (2006) have summarized several of ­t hese theoretical arguments. They point out that transnational corporations that provide “­free health checkups and basic health care ser­v ices to workers through a factory clinic w ­ ill typically have a healthier and more productive work force than factories that lack such benefits” (Arnold and Hartman, 2006: 694). ­These authors also pre­sent two economic models that tend to support demands for universal core ­labor standards. The “efficiency wage” model disputes the notion that the costs of higher wages and better working conditions (such as job safety and health care) would inevitably lead to a competitive disadvantage for lesser developed nations. According to this model, low wages and inadequate worker benefits are often the c­ auses of low productivity. By raising wages and providing better benefits, corporations increase worker productivity and enhance profits for the firm. For example, “workers whose minimum daily dietary requirements are met and who have basic non-­food needs met ­w ill have more energy and better attitudes at work; ­w ill be less likely to come to work ill; and ­will be absent less frequently” (ibid.: 695). In order to ensure adequate nutrition for their workforce, employers may have to provide a living wage that is enough to cover two to four times the cost of food and health care for a single employee. “This is ­because the employer cannot prevent the worker from spending wages on food and healthcare for the employee’s f­ amily” (ibid.). A second economic model focuses on the “gift-­exchange” nature of employment relations. According to this model, employers who pay workers a higher wage (higher than the lowest pos­si­ble wage set by market demand) “are seen as bestowing a gift on workers, who reciprocate with greater productivity and greater loyalty. Increased productivity and worker loyalty alone

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may offset the cost spent to re­spect workers’ basic rights . . . ​, [provide] safe and healthy working conditions, and [pay] workers a living wage” (ibid.). In other words, the pro-­linkage side of the debate argues that by increasing wages and benefits, developing nations would, in turn, increase worker productivity and loyalty. Increased productivity then becomes the spark to jump-­ start rapid economic development in the Global South. This thinking also underlies recent lending policies at the IMF and the World Bank. Structural adjustment loans from ­t hese international financial institutions (IFIs) now ­favor developing nations with better rec­ords on ­labor rights. The justification for such favoritism in IFI lending comes from a neoliberal belief that enhancing l­abor rights in less developed nations is conducive to economic growth (Abouharb and Cingranelli, 2006). A broader set of pro-­CLS arguments focuses on the social costs of poor working conditions and low wages. An argument often heard in f­ avor of linkage asserts that when l­abor standards are determined by the ­free market alone, then the outcome ­will be suboptimal international social conditions (de Wet, 1995). Weak ­labor standards and low wages are used to boost exports, but they also allegedly lead to “social dumping” (Valor, 2006). Social dumping promotes a “race to the bottom” as each lesser developed nation lowers its ­labor standards to gain a comparative advantage. If ­t hese arguments are sound, then increasing wages and providing better job benefits w ­ ill not only enhance productivity and worker loyalty. The promotion and protection of universal core ­labor standards ­will also diminish social dumping, social inequalities, and the race to the bottom. Opponents of a WTO social clause draw on a broad set of counterarguments to support their position that restrictions on ­labor rights are necessary in developing nations. They see lower wages, fewer benefits, and lack of ­unionization as key f­ actors for the Global South’s comparative advantage, especially in regard to sectors such as textiles. From this point of view, a social clause would be a distortion of ­free markets, and “regulatory diversity” is a legitimate form of comparative advantage. According to Erika de Wet, “regulatory diversity is one dimension of comparative advantage, to argue against diversity is to argue against the rationale for trade itself ” (1995: 445–446). ­Because a social clause represents “an interference in the market pro­cess,” it would necessarily contribute to “impeding efficiency, creating suboptimal allocation of l­abor, stifling competition, deterring investment, and constraining growth” (ibid.). Christian Barry and Sanjay Reddy (2006) assert that imposing universal CLS standards would harm comparative advantage, in-

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crease l­abor costs leading to higher unemployment, and prevent developing states from enacting l­abor policies that are appropriate to their levels of development. Similarly, Dexter Samida argues that restrictions against child ­labor actually make the situation worse: “for at least some c­ hildren, the export sector is the best option in terms of wages, working conditions, or both. . . . ​Moving child laborers out of the export sector would tend to increase the l­abor supply in other sectors, which could depress wages, lead to worse working conditions, or both” (2005: 421–422). Additional arguments in opposition to a social clause promote what Donnelly (2003) calls the “development vs. rights trade-­off.” The trade-­off allegedly requires that the Global South be allowed lower standards of ­labor rights in order to achieve more rapid development. ­Labor rights are traded “at least in the short-­and medium-­run time frames” in exchange for economic growth (ibid., 196). Then hopefully, in the long run, once a higher standard of welfare has been achieved the trade-­off would no longer be required. Taiwan and South K ­ orea are two cases in point. Taiwan and South K ­ orea w ­ ere notorious violators of many h ­ uman rights during the Cold War, particularly ­labor rights. Each achieved significant growth rates during that period, characterized by rapid growth in GDP over a twenty-­five-­year period (Bhagwati, 1995). More recently, each of ­these “East Asian miracle” nations has liberalized its l­abor standards to allow new freedoms that w ­ ere once widely denied. Bhagwati and ­others in the anti-­social-­clause camp often invoke the examples of Taiwan and South ­Korea to support their claims about the positive impact of the labor-­rights-­ to-­development trade-­off. A brief summary of t­hese cases w ­ ill lead to my subsequent review of prior quantitative tests regarding theories of ­labor rights and development. The once-­repressive government in Taiwan underwent a demo­cratic transition in 1986 and immediately thereafter. Prior to 1986, dictatorial one-­ party rule by the Nationalist Party, or the Kuomingtang (KMT), included severe anti-­labor policies. Following its 1949 defeat in the Chinese civil war, KMT leaders relocated to the island of Taiwan. Po­liti­cal repression in Taiwan a­ fter 1949 relied on the arrest and execution of po­liti­cal opponents to ensure KMT domination. Martial law was established by the KMT in 1949 and continued well into the 1980s. ­Labor groups ­were especially targeted by the KMT. Strikes ­were outlawed along with all other forms of collective ­labor action. The KMT monitored and controlled u ­ nions. Only KMT loyalists w ­ ere allowed as u ­ nion officers (Ho, 2006: 107). The KMT government established

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a state-­controlled Chinese Federation of L ­ abor (CFL) as the only l­ egal u ­ nion co­a li­tion. All u ­ nions ­were required to become part of this federation, or they ­were outlawed. The CFL itself was staffed and financed by the KMT. L ­ abor ­unions therefore w ­ ere l­ ittle more than an extension of state rule (ibid.). Unions existed primarily to increase the KMT’s mono­poly on power. KMT members also dominated the ­labor force at the factory level. KMT loyalists w ­ ere put in charge of the personnel, welfare, and security departments at each major factory (Ho, 2006). The system of ­labor repression in Taiwan prior to 1986 mirrored many aspects of the Leninist systems in Eastern Eu­rope before the 1980s (e.g., Poland). Party commissars inside each ­union and almost e­ very factory ensured ruling party control of the l­ abor force and blocked recognition of the most fundamental ­labor rights (in­de­pen­dent collective bargaining, the right to strike, and so on). During this same time period, Taiwan’s growth rates w ­ ere consistent and remarkable. Average annual growth rates of more than 6 ­percent typified Taiwan’s economy from 1960 to 1989 (Rodrik, 1995: 56). This rise in economic growth was accompanied by a rising urban ­middle class. By 1986, demands from the m ­ iddle class for a more demo­cratic polity became too power­f ul for the KMT to resist. The year 1986 stands as a watershed in Taiwanese politics. The first l­ egal opposition party, the Demo­cratic Progressive Party, was established in 1986. The KMT also announced in 1986 that martial law would end during the following year. An in­de­pen­dent l­ abor movement was non­ex­is­tent in Taiwan prior to 1986. A ­ fter 1986, autonomous ­labor u ­ nions ­were allowed, leading to increasing calls for ­labor law reform. Over one million new members joined the in­de­pen­dent u ­ nion movement following the suspension of martial law (Chu, 1996: 499). By the end of 1988, over one hundred new in­ de­pen­dent l­ abor organ­izations had been created (ibid.: 500). The new ­unions ­were quick to exercise their newfound freedoms as Taiwan experienced a rapid increase in l­ abor disputes and work stoppages (ibid.: 502). New laws in 1991 and 2001, respectively, increased safety and health equipment on the job and reduced the number of hours in the work week. Opponents of uniform CLS standards for all nations point to the Taiwan case as a concrete example of the alleged benefits of sacrificing ­labor rights in a trade-­off that spurs rapid development. South ­Korea is also held up as a similar exemplar. Modern industrialization in South ­Korea began with the first five-­year plan u ­ nder Park Chun-­hee in 1963. Early industrialization in K ­ orea was similar to the early period in Taiwan. Growth was structured around export-­

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oriented production and ­labor repression. Wages ­were suppressed and working conditions w ­ ere poor. Workers w ­ ere forced to work overtime and double shifts with l­ ittle or no additional compensation (Koo, 2000: 233). The state imposed authoritarian control over the l­ abor force. Repressive l­ abor laws prohibited u ­ nionization. Attempts by workers to mount public protests w ­ ere met with brutal police responses (ibid.). ­There was no collective bargaining. At the same time, South ­Korea attained growth rates that outpaced even ­those in Taiwan. From 1960 to 1989, annual growth in South K ­ orea’s GDP per capita averaged almost 7 ­percent (Rodrik, 1995: 56). The 1988 Summer Olympics in Seoul was a watershed event for South Korean politics and l­abor relations. In the lead-up to the 1988 Olympics, a democracy movement swept across South ­Korea during June of 1987. The Korean government was afraid to use police repression against public demonstrations, as it had consistently done in the past, due to the intense international media attention focused on South K ­ orea b ­ ecause of the coming Olympics. The June movement of 1987 demanded demo­cratic elections and ­labor reforms. South K ­ orea had been governed by a military-­backed one-­party regime from the time of its creation (­a fter World War II) up ­u ntil 1987. The immediate result of the 1987 democracy movement was the first ­free, fair, direct election for South ­Korea’s president in December of 1987. Prior to 1987, the military-­backed Demo­cratic Justice Party (DJP) had maintained its mono­ poly on power, in part, through indirect presidential elections controlled by the DJP-­dominated electoral college. The DJP was forced to face off against a demo­cratic opposition for the first time in the 1987 election. Ironically, DJP candidate Roh Tae-­woo (a former general) won the 1987 election, and the ruling party retained power ­because the opposition was split and anti-­DJP candidates failed to win a plurality of votes. But the die was cast for reforms in both the government and in ­labor relations. Prior to 1987, wages and working hours had been set by employers without consulting ­labor and with the backing of the DJP government. As a result of the 1987 democracy movement, autonomous ­labor ­unions ­were allowed for the first time. Major corporations like Hyundai allowed their workers to form their first in­de­pen­dent u ­ nions. Over one thousand new l­ abor ­unions ­were created ­after June of 1987 (Adesnik and Kim, 2008). During 1987– 1988, the government ­adopted a hands-­off policy ­toward l­ abor disputes, and business leaders ­were forced to deal with ­labor demands from new ­unions for the first time (Koo, 2000: 232–234). The result was a 15–20 ­percent increase in wages and better working conditions (ibid.). In 1991, South ­Korea joined

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the ILO. By 1996, South ­Korea had reached a sufficient level of development to be invited into the Organ­ization for Economic Cooperation and Development (OECD). Spurred on in part by pressure from the ILO and the OECD, President Kim Young-­sam launched an overhaul of Korean ­labor laws in 1996. Nationwide strikes in 1996 and 1997, which would have been impossible before 1987, put additional pressure on President Kim. The ILO, the OECD, and the International Confederation of ­Free Trade Unions (ICFTU) all put pressure on the South Korean government to liberalize its l­ abor laws. The ICFTU even went so far as to or­ga­nize an international boycott of South Korean goods (Koo, 2000: 241). In response, the government established a new, higher minimum wage in 1998. Since 1998, l­ abor relations in South K ­ orea have remained confrontational. Unions tend to rely on strikes rather than collective bargaining (Lee, 2006: 723). The key point for our purposes, however, is the fact that the liberalization of l­abor rights benefited Korean workers, especially when compared to the days of one-­party rule prior to 1987. The anti-­linkage camp tends to lump South K ­ orea together with the other Asian economic “tigers,” such as Taiwan and Singapore, as examples of polities where restricted l­ abor rights accompanied a long period of rapid growth, followed by notable liberalization of ­human rights in general and l­ abor rights in par­tic­u­lar. The existence of competing economic theories begs the question of how, on balance, l­ abor rights are associated with economic development writ large. Beyond the case studies of the East Asian tigers, what is the general relationship between ­labor rights and economic growth across all developing nations? I turn now to a summary of prior quantitative studies that provide empirical evidence worth considering.

Prior Quantitative Studies of ­Labor Rights and Development A handful of quantitative studies have sought to establish empirically the general trends between l­abor rights and development across the Global South. A 1996 study by the OECD found l­ ittle or no relation between CLS standards and development (when development was mea­sured as increased export per­ for­mance). Two studies, one by Jai Mah (1997) and another by Layna Mosley and Saika Uno (2007), found an inverse relationship between ­labor rights and development. In both of ­t hose articles, higher levels of development (operationalized as exports divided by GDP) ­were associated with e­ ither lower rates

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of ILO CLS treaty ratification (Mah, 1997) or with higher rates of ­labor rights violations (Mosley and Uno, 2007). One quantitative study (Brazillier, 2008) found that increasing CLS compliance is positively correlated with a dif­fer­ ent indicator of development (e.g., income per capita). Th ­ ere are also a few case studies, especially the one by Sandra Polaski (2006) on U.S. and ILO policy in Cambodia, that pre­sent narratives of rising CLS standards accompanied by increased development in the Third World. ­Because ­these prior studies are related to the methodology and results of my own work, I ­w ill discuss them in more detail before presenting my findings. Polaski’s case study on Cambodia w ­ ill be discussed in the conclusion of this chapter. The OECD study of 1996 “chose several core ­labor standards and compared ratification of t­ hese standards with the trade per­for­mances in OECD as well as non-­OECD countries . . . ​it concluded that t­ hese two variables are in general unrelated” (Mah, 2007: 774). The OECD study of 1996 showed “no evidence that low [­labor] standard countries enjoy a better global export per­ for­mance than high [­labor] standard countries” (ibid.: 778). Mah takes the OECD results as his starting point and seeks to improve on its model. As a result, Mah contests the findings of no relationship between l­ abor rights and development in the prior OECD study. With a sample of forty-­five developing countries Mah compares “export per­for­mance” to ratification of ILO conventions on core l­abor standards. Export per­for­mance serves as a proxy for Third World development in Mah’s work. He mea­sures export per­for­mance by means of the value of exports divided by GDP. He then logs this mea­sure. The logged mea­sure of exports over GDP is then correlated with ratification of five ILO CLS agreements. Using a series of bivariate ordinary least squares (OLS) regressions, Mah finds a negative relationship between development (e.g., exports) and membership in ILO agreements on ­f ree association, collective bargaining, and nondiscrimination (ibid.: 780). Mah found no relationship between development and the CLS agreement on slavery, or the convention on other forms of forced l­abor. The inverse relationships between development and the three forms of CLS (­free association, bargaining, nondiscrimination) are statistically significant in Mah’s study, but they account for very ­little of the variance in Third World levels of development (with R 2, or “variance explained,” values between 0.05 and 0.12). Mosley and Uno’s 2007 study uses a more sophisticated methodology to conduct a series of tests, but they arrive at basically the same conclusions as Mah. Mosley and Uno’s work reveals a negative correlation between l­abor

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rights and development, with development operationalized as “trade competition” (trade competition = [imports + exports] ÷ GDP). Their data on rights violations come from reports by the U.S. State Department, the ILO, and the ICFTU (coded for thirty-­seven dif­fer­ent types of ­labor rights violations). Some of the more egregious violations ­were weighted by Mosley and Uno. With samples sizes ranging from forty-­eight to ninety nations, and using time-­series OLS regression, Mosley and Uno find that richer developing nations have higher rates of l­ abor rights violations (2007: 935ff.). Their model accounts for more variance in ­labor rights among developing nations than does Mah’s work, with an R 2 value of 0.38 (ibid.: 938). When discussing the results of their combined tests, ­t hese authors assert that “trade is negatively and significantly related to collective ­labor rights. [Developing] nations with higher levels of imports and exports are less likely to treat workers well . . . ​ [and] per capita income is significantly and negatively linked to ­labor rights: Wealthier developing nations have worse ­labor rights practices” (ibid.: 939). A final study (employing a dif­fer­ent methodology) stands as the only quantitative work to find a positive relationship between ­labor standards and one aspect of development (other than trade). In this case development is operationalized as per capita income. Remi Brazillier (2008) employs multiple correspondence analy­sis to construct a “synthetic indicator” of core l­abor standards in the areas of freedom of association, nondiscrimination, forced ­labor, and child l­ abor. The sample of developing nations in this study includes eighty countries. ­After analy­sis with a two-­stage least squares method, Brazillier asserts among his conclusions that “all ­t hings being equal, ­labor standards have a positive impact on long-­term per capita income which means that countries could have dif­fer­ent growth paths according to their levels of ­labor standards” (2008: 24). In other words, “countries with higher ­labor standards have a higher [per capita income] level” (ibid.: 17). Mosley and Uno, along with Mah, find a negative relationship between ­labor rights and development in the form of exports. Brazillier finds a positive relationship between ILO CLS agreements and development in the form of per capita income. Given the combined results of t­ hese prior studies, the jury is still out on the true relationship between development and l­ abor rights. In the following section, I w ­ ill pre­sent a novel approach to testing theories of ­labor rights and development. I ­will operationalize ­labor rights in a multifaceted manner that improves on the prior studies. My mea­sure for development w ­ ill be largely the same as that used by Mah and Mosley and Uno. As we ­shall see, the new results tend to confirm an “incon­ve­nient truth.” ­There

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is indeed an inverse relationship between protection of ­labor rights and development in the Global South.

A New Test of Theories of L ­ abor Rights and Development To sort through the contending theoretical, empirical, and policy claims surrounding debate over a WTO social clause, one needs to establish the general relationship between economic development and protection of ­labor rights in less developed nations. My tests conceptualize a new model for ­labor rights and development by means of the following equation: Development = ILO Index + Wages + Union Density  + GINI + Population Each of t­ hese variables was operationalized as follows: Development = (exports + imports) ÷ GDP ILO Index = total number of ILO CLS conventions ratified by each nation (range = 1 through 7) Wages = annual minimum wage converted to international dollars Union Density = percentage of the total national workforce that is ­unionized GINI = Gini coefficient of income in­equality for each nation Population = total national population As in most of the prior studies, the dependent variable (development) is mea­sured via the ratio of imports plus exports divided by GDP. The primary in­de­pen­dent variable (­labor rights) is operationalized via three distinct and complementary mea­sures. The ILO index is a number between one and seven, representing the total number of ILO CLS conventions ratified by each country. The seven CLS conventions are numbered by the ILO as: no. 29 (prohibition of slave ­labor); no. 87 (­free association); no. 98 (collective bargaining); no. 105 (prohibition of forced l­ abor); no. 111 (nondiscrimination); no. 138 (minimum age for child ­labor); and no.  182 (elimination of the worst forms of child ­labor). I aggregate ­these CLS conventions into a single mea­sure, instead of comparing development to each ILO convention separately (as was the case in Mah’s study). An index of all ILO CLS conventions is a more intuitive indicator of national compliance with CLS standards in general. It would be

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­Table 2. ­Labor Rights and Development in the Global South Dependent variable: (Exports + Imports) ÷ GDP In­de­pen­dent variables ­ abor treaty index L Minimum wage Union density GINI Total population R 2 = .35

B

Beta

SE

−.198** .001 .026 −.014** −3.078**

−.553** .046 .157 −.394** −.366**

.043 .002 .022 .004 .000

N = 143 developing nations

**p