[*PG57]ADVANCING THE LANGUAGE OF HUMAN RIGHTS IN A GLOBAL ECONOMIC ORDER: AN ANALYSIS OF A DISCOURSE
Abstract: Human rights language is particularly attuned to setting out the goals of protecting the worlds least protected people. As human rights advocates have entered negotiations with international economic institutions and transnational corporations (TNCs), such negotiations have often resulted in an alternative language to describe the necessity of protecting and promoting human rights. After describing the progressive inclusion of human rights ideas by TNCs, the World Bank, the IMF, and the WTO, this Article argues that, while such inclusion is a benefit to the human rights movement, the creation of an alternative language to describe human rights goals is potentially detrimental. The language of human rights, in order to be understood by those it aims to protect, must, above all, be intelligible and accessible to them. At this early stage of interactions between human rights advocates and international economic actors, human rights advocates should retain and advance the compelling and utopian language of rights.
Commerce, however necessary, however lucrative, as it depraves the manners, corrupts the language; they that have frequent intercourse with strangers, to whom they endeavor to accommodate themselves, must in time learn a mingled dialect. . . . This will not always be confined to the exchange, the warehouse, or the port, but will be communicated by degrees to other ranks of the people, and be at last incorporated with the current speech.
The philosophical origins of human rights as we know them are as recent as modernity.2 As such, the community of human rights advocates is recent, and the language it uses to articulate its demands and goals remains in flux. The myriad debates defending or advancing a particular definition for a specific human rights problem or transgressive occurrence abound as evidence of this phenomenon.3 As with any specialized field of study and workincluding law4human rights has developed its own language for a special purpose.5 Specialized lexicons have also developed in areas relevant to human rights, such as economics, finance, and the phenomenon of globalization.6 Moreover, because economics, globalization, and human rights are not entirely independent of one another, they experience cross-pollination of their communities and specialty languages.
This Article discusses characteristics of two of these discourses, that of international economic law and that of human rights, and the points of contact between the two. Although they share philosophical roots in liberal ideals, human rights and international economic law [*PG59]stand as polarized communities, as a result of a decades-long creation of separate instruments and institutions.7 This separation, however, has never been absolute. In recent decades, human rights actors have questioned this separation in the course of examining the idea that international economic actors should practice a form of social responsibility congruent with the body of law developed in the international human rights system. Specifically, as human rights advocates call into question transnational economic actors and international economic institutions, and continue advancing methods to ensure accountability of their economically-focused globalized counterparts, the two communities come into contact, thus shaping a nexus.
Part I of this Article, by means of setting out a definition of international economic law used throughout the Article, discusses the separation of private and public international law, as well as the distinctions between international business law and international economic law. After giving a general view of each of these domains, it focuses more specifically on the institutions and actors in the international economic demesne. Part II examines the points of contact between the international economic and human rights communities. Particularly, it considers the innovations developed by the two communities to introduce human rights into the markets space, through negotiations and advocacy with transnational corporations (TNCs), and the major international financial institutions: the IMF, World Bank and WTO.
Part III focuses on the professional languages employed in the discourse between the economic and human rights communities. Specifically, it illustrates that the interaction between an economic language and a rights-based language affects both the substance of the discourse and the outcome of the interactions between these two communities. Part III further argues that the protracted interaction and negotiation between economic and human rights advocates creates an alter-language. Although this alter-language facilitates com[*PG60]munication, it may result in excessive compromises by rights advocates. Analogizing to historical linguistic patterns of colonization, Part III describes the potential dangers of language concessions. It recommends a conscious delineation of boundaries for human rights advocates who are in constant interaction with the transnational economic order. This ensures that they do not compromise substance nor dilute basic human rights principles through language concessions and modifications in the process of negotiations with the international economic community. The Article concludes that, in order to protect a wide range of potential alternatives for the attainment of human dignity, individuals participating in this discourse must consciously aim to retain the powerful utopian ideas couched in human rights rhetoric.
This Article uses a broad definition of international economic law, which includes public international law, international business law, international trade law, private international law, and other categories that influence transnational economic activity and have the potential to impact the advancement and protection of human rights.8 [*PG61]The idea that international law is divided into two distinct realmsprivate and publicis widely accepted though highly debated.9 Public international law is traditionally referred to as the law governing relations between nation-states.10 Public law, though, has commonly been defined as the law dealing with the relations between private individuals and the government, and with the structure and operation of [*PG62]the government itself.11 Private international law, on the other hand, refers to resolutions for conflicts of law and establishes the principle of comity for a countrys domestic laws in foreign courts.12 It is principally concerned with resolving conflicts of national law governing transactions between individuals, associations, and corporations from more than one domestic jurisdiction.13
Under a globalizing order that erodes national sovereignty and increases the importance of private actors, a clear delineation between private and public law and their relationship to one another is difficult to discern.14 As such, the boundaries between public and private international law remain mutable. The increased role of cross-border transactions, trade, and production has given greater importance to the economic activities of private actors parastatal activity.15 As a result, an inclusive definition of international economic law is necessary to discuss the interaction between the international economic and international human rights regimes. Specifically, this inclusive definition allows for a consideration of all the points at which international human rights and international economic law interact. Adopting such a definition also permits a discussion of the impacts of transnational economic activity on universal observance of human rights without requiring a distinction between the public and the private.
Incorporated within the definition of international economic law are the range of international economic instruments and institutions established at the end of World War II to facilitate a stable and globalized liberal economic order.16 International agreements dominate this [*PG63]area and generally cover broad tracts such as international trade, international monetary affairs, and international investment.17 A skeletal overview of the primary participants in international economic law is essential for understanding the complexity of the debate that surrounds regulation of transnational economic activity. Transnational Corporations and the central international economic institutions are among the locations at which transnational activity has been and can continue to be influenced by human rights efforts, which demand that such economic activity incorporate the basic rights of people.
At the center of modern international economic legal history is the Bretton Woods-GATT system. Named after the 1944 conference held at Bretton Woods, New Hampshire,18 this international economic system arose from the twin goals of stabilizing exchange rates in the post war period and ensuring the availability of the long-term capital necessary for post World War II reconstruction.19 The Bretton Woods Conference developed the framework for the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (the World Bank), and sketched the General Agreement on Tariffs and Trade (GATT)-World Trade Organization (WTO) system.
Initial plans for both the World Bank and the IMF were focused on reconstruction rather than on development.20 Advocates from less developed nations, however, pushed for a rapid transition from reconstruction to development. They feared that, instead of financing development in underdeveloped countries, institutions like the International Bank for Reconstruction and Development would merely supplement private investors.21
[*PG64] During the period from 1950 to the 1970s, the World Bank established the International Development Association (IDA), the International Finance Corporation (IFC), and the training-focused Development Institute.22 In addition, the World Bank embarked upon research on various issues including agriculture, education, health, and urban growth.23 The World Bank remained outwardly focused on the project of reconstruction throughout these early years. By the 1970s, however, the World Bank underwent an institutional shift towards development by expanding operations and giving substantial support to development programs and plans in a number of countries in Asia, Latin America, and Africa.24
During the first decade of the World Banks institutional shift, the IMF remained closed to development issues, holding the position that it was established essentially for the purpose of reconstruction.25 From 1979 to 1985, however, the IMF also underwent an institutional shift towards development. It became intensely involved in providing loans and designing programs to carry developing country members out of debt incurred from increases in oil prices and interest rates in the early and mid 1970s.26 Presently, the IMF continues to act in a variety of capacities, including monitoring and controlling the economic management of a number of less developed nations.27
The current international trade law regime originated in conjunction with, though separate from, the Bretton Woods system. In the winter of 19471948, the United Nations Economic and Social Council (ECOSOC) organized the U.N. Conference on Trade and [*PG65]Employment in Havana, Cuba.28 This conference originated in response to a number of proposals for a United Nations conference to negotiate an international trade charter and establish an International Trade Organization. By the spring of 1948, the conference participants established the GATT and a Charter for the International Trade Organization (ITO).29 Though the ITO was never accepted by the United States and ultimately failed internationally, many of its provisions were incorporated into the GATT articles soon after the Havana Conference.30 The historical ITO provisions later became the foundation for the World Trade Organization (WTO).31
In addition to the GATT, other major regional instruments promote the advancement of free trade agreements, either among their member nations or between member and non-member states. These instruments include the North American Free Trade Agreement (NAFTA),32 the European Economic Community,33 the African Economic Community,34 the Latin American regional organizations,35 the [*PG66]Association of South East Asian Nations (ASEAN),36 and the proposed Arab Economic Union.37 In addition, a large network of bilateral investment treaties complicate this regional system of economic agreements. These treaties include bilateral investment guarantee agreements; bilateral treaties of friendship, commerce, and navigation; and bilateral investment treaties for the encouragement and protection of foreign investment.38
Transnational corporations seek and enjoy the stability and protection provided by these economic institutions and agreements. Though largely unregulated by international law, transnational cor[*PG67]porations have become important players in the international economic system as foreign direct investment continues to increase rapidly and transnational corporations grow in number and size.
Added to the plethora of international institutions and entities that are potential objects of criticism and locations for negotiation are nation-states. The nation-state retains the power to regulate and deregulate the actions of people and corporate entities within its borders. Multinational agreements remain dependent on the approval of nations for legitimacy. If democratic, national governments also hold the burden of accountability to their citizens. As the purported representative of the people, a national government is an obvious recipient of criticism when it negotiates contracts with investors or treaties with foreign nations that are contrary to the well being of its populous.39
Given this complex consortium of economic actors, it is little wonder that it has been an arduous task to define the goals of regulating transnational economic activity to ensure that it does not violate the basic rights of people. The following section provides an historical overview of the attempts to ensure the observance of human rights by transnational economic actors.
The negotiations between the human rights community and its international economic counterparts have been in progress, in differing degrees and with diverging levels of success, for over thirty years. To illustrate the importance of the language developing from those negotiations, Part II first discusses the role of nongovernmental organizations in the interactions between the human rights community and the international economic community. Section B then traces the developments of the negotiations between the human rights community and TNCs by means of various codes of conduct. Last, Section C outlines the general trend of the major international financial institutions towards acknowledging, at least in part, the influence and im[*PG68]pact of their institutions on the protection and promotion of the ideas encompassed by international human rights.
Nongovernmental organizations (NGOs) are prominent and essential actors in the efforts to ensure the accountability of transnational economic activity. These groups actively, and at times noisily, link this economic activity with the observance of human rights. Together with the United Nations and the ILO, they are the primary advocates and protectors of human rights law and ideas. NGOs have contributed tremendously to efforts to draw the attention of international economic actors to the compelling nature of human rights and their integral importance in long-term, sustainable development. In consulting and negotiating with their economic counterparts, however, it is essential that NGOs remain attentive at all times to the specific substantive and linguistic concessions they agree to make with economic actors.
Traditionally, NGOs play a gadfly role by calling attention to abusive labor practices,40 environmental offenses,41 and the marketing of products that are known health-hazards.42 Until the late 1990s, however, human rights NGOs had done little to highlight the need to precondition the expansion of transnational economic activity with both corporate observance of basic human rights and a commitment by all countries active in the global economy to improve their human rights records. The 1997 Human Rights Watch World Report was the first indication that Human Rights Watch acknowledged transnational economic activity as a threat to human rights.43 In its 1998 report, [*PG69]Human Rights Watch noted the emerging importance of NGO activity in promoting corporate practices that comply with universal human rights standards.44 By 2001, Human Rights Watch had created a department on Corporations and Human Rights, included a section on Business and Human Rights in its annual report, and employed full time staff on this issue.45
Another NGO, the Lawyers Committee for Human Rights, first began to focus on the relationship between international financial institutions and the advancement of human rights in 1993.46 Differing from many other NGOs, which targeted transnational corporations, the Lawyers Committee focused on the responsibility of the World Bank in the promotion of human rights.47 Partially as a result of this work and the work of other NGOs surrounding the activity of multilateral economic institutions, the World Bank now considers how the projects it funds will effect human rights.48
The proliferation of NGO activity on the issue of human rights and trade or human rights and business is impressive. As general familiarity with this issue has spread and deepened, so the NGOs working on this issue have mirrored that growth. The challenge ahead is to ensure that these groups, while advocating for inclusion of human rights concerns, maintain the strong language of rights within their institutional rhetoric.
Nongovernmental organizations have had varying degrees of success in interacting with the range of international economic actors discussed herein. NGOs, together with the United Nations, the ILO, and individual governments, have found codes of conduct to be a successful means to influence the activities of TNCs. This section details the differing types of codes of conduct, each with their own set of methods and goals, and each with their own potential for effective inclusion of human rights within corporations daily activities. Almost all codes of conduct remain entirely voluntary and lack enforcement mechanisms. This, among other reasons, may explain the ready incorporation of the optimistic language of human rights by many TNCs. Nonetheless, they provide a model for maintaining human rights language at other points of contact between the human rights community and its economic counterparts.
In response to the mobilization efforts of human rights NGOs, the United Nations and its individual members have focused on regulating the behavior of non-state actors.49 Private corporations, particularly TNCs, are included within this focus, as they are some of the most significant non-state actors in the world today.50 As a result, the United Nations (U.N.) and other inter-governmental bodies advocate developing transnational codes of conduct for TNCs.51
The United Nations attempts to create a code of conduct for TNCs are varied and numerous. In 1990 the United Nations Centre on Transnational Corporations issued a Draft Code of Conduct for TNCs.52 Although the Commission on Transnational Corporations [*PG71]agreed on the Draft Code of Conduct, the U.N. member states were unable to agree on key provisions dealing with protection of property and contractual rights, compensation in case of taking property, and the settlement of disputes.53 Consequently, the Draft Code of Conduct was abandoned.54 In 1996 the United Nations Human Rights Commission established a Working Group on the Right to Development that re-initiated U.N. activity aimed at establishing a framework to hold accountable TNCs that violate human rights standards.55
In 1998 the Subcommission for Prevention of Discrimination and Protection of Minorities (now the Subcommission for the Promotion and Protection of Human Rights) established the Sessional Working Group on the Working Methods and Activities of Transnational Cor[*PG72]porations with the intention of evaluating the propriety of adopting a code of conduct for TNCs.56 The Working Groups draft principles on the conduct of corporations provide a basis for assessing corporations performance and have the potential to result in either a new U.N. standard or global guidelines for the conduct of corporations.57 In August 2002, the mandate of this Working Group was extended until 2004, a clear indication of the Subcommissions continued interest in the interaction between human rights and international corporate activity.
In 2000 the Secretary-General of the United Nations, Kofi Anan, announced the creation of the highly publicized Global Compact, an initiative launched with the aim of encouraging corporations to voluntarily adopt nine fundamental principles on human rights, labor, and environmental protections.58 The Global Compact directly appeals to private corporations to adopt and adhere to principles that are already widely accepted by U.N. member states, via the Universal Declaration of Human Rights, the International Labour Organizations Declaration on Fundamental Principles and Rights at Work, and the 1992 Rio Declaration of the United Nations Conference on Environment and Development.59
The U.N. is not the only international institution to attempt to adopt codes of conduct for TNCs. In 1976 the Organization for Eco[*PG73]nomic Co-operation and Development (OECD) member states adopted a Declaration on International Investment and Multinational Enterprises.60 When the Guidelines were adopted in 1976, they represented the first international agreement on multinational enterprises accepted by both business and labor representatives of the OECD member states. As such, they represent an innovative approach to encouraging responsible behavior from multinational enterprises.61
Likewise, the International Labor Organization adopted a code of conduct for TNCs.62 Entitled Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, the tripartite ILO system requires that the Conference delegation from each state party be comprised of two governed representatives, one labor [*PG74]representative, and one representative from the business sector.63 Though each government chooses its representatives in consultation with the countrys business community, the employer and the labor representatives are theoretically free to take positions that do not conform to their governments policy objectives.64
National governments also encourage codes of conduct. The United States government, for example, now encourages United States-based corporations to adopt codes of conduct to regulate their own activity when they establish operations in foreign countries or contract with foreign suppliers and producers.65 These types of codes aim to regulate corporate activity, as opposed to codes that aim to influence the human rights practices of the countries where TNCs are active. Codes that aim to influence corporations human rights practices propose that businesses interested in countries with poor human rights records have a responsibility to act as agents for the protection and promotion of human rights in the course of their conduct.66 This type of proposal has emerged as the countries that once advocated for transnational corporate accountability have become increasingly convinced that development is their primary priority.
In an atmosphere in which countries view themselves in competition for capital activity,67 many in the human rights community have [*PG75]begun arguing that TNCs should act as advocates for human rights in the host countries in which they operate.68 It may be possible for the United States to prohibit corporations from violating human rights or locating in countries that violate human rights in accordance with the Restatement (Third) of the Foreign Relations Law of the United States, ( 414 comment c.69 According to the Restatement, subject to certain restrictions, a state has jurisdiction to prescribe law with respect to . . . (1)(c) conduct outside its territory that has or is intended to have substantial effect within its territory, [and] (2) the activities, interests, status, or relations of its nationals outside as well as within its territory,70 except where such jurisdiction is unreasonable.71 More specifically, the Restatement explains that a State may prescribe its laws extraterritorially for limited purposes with respect to activities of foreign branches of corporations organized under its laws.72
A comment to the Restatement seeks to limit permissible extraterritorial regulation by stating that, as a general matter, such laws may not be prescribed extraterritorially if they will apply to predominately local activities, such as industrial and labor relations, health and safety practices, or conduct related to preservation or control of the local environment.73 This comment appears to prohibit extraterritorial application of laws on a wide range of human rights matters. One commentator has noted, however, that although briberythe subject of the Foreign Corrupt Practices Actmay be classified as a local activity, the United States criminalization of bribery abroad may be distinguished from the activities listed in Comment c of the Third Restatement by the fact that bribery is a simple negative proscription (do not bribe), whereas the other activities involve extensive positive [*PG76]regulations.74 Therefore if negative proscriptions are permissible, a law could be enacted which simply prohibits corporations from violating basic human rights or locating in countries that violate the human rights treaties of that corporations home state.
The United States government has often used its ability to regulate transnational economic activity as a method of encouraging foreign governments to comply with basic human rights standards. Another method employed by the United States and other nations is the use of economic sanctions and embargoes against countries that have fallen into disfavor with the U.S.75 The most successful and well-known example is the United States embargo on trade with and investment in South Africa during the final years of apartheid in that country.76 U.S. use of economic embargoes, however, has recently become unpopular as a result of multilateral economic treaties that prohibit such sanctions.77
Corporations themselves, under pressure from consumer boycotts, have voluntarily developed and adopted codes of conduct.78 There is some evidence that this is a successful strategy for ensuring corporate adherence to human rights standards. For example, as a result of public pressure, boycotts, or picketing, many large and well-known corporations such as the Gap, Starbucks Coffee, and Reebok have committed to much-improved labor standards and have agreed to monitor the labor practices of their sourcing locations.79
Nonetheless, consumer boycott strategies are an inefficient method to achieve high levels of human rights observance. Consumer boycotts are only likely to be successful against brand name products that are both well known and conveniently replaceable by consumers. The voluntary codes of conduct system assumes the brand-driven market functions in such a manner that a consumer is actually willing and able to replace a favorite brand by one that has not been cited for human rights violations. Even promoters of the voluntary codes of conduct system admit that observance of human rights issues is not fully decisive in the marketplace.80 Additionally, these strategies depend on access to full and accurate information on corporate activity that is often extremely difficult to discern.81
[*PG78] Further, it is misleading to assert that these codes of conduct are likely to reverse current exploitative trends and actually create a race to the top.82 Although pressuring corporations to observe basic human rights standards may improve corporate observance of human rights above the deplorable level which inspires consumer boycotts, this is a much more modest advance than what one might imagine a true race to the top would achieve.
Distinguished from codes of conduct regulating the corporations own human rights practices are codes aiming to influence the human rights records of the countries in which a corporation operates.83 In the first scenario, the best advocacy strategy may be to promote improvement of the domestic laws regulating corporate activity. The international codes mentioned above and the idea of Most Favored Nation status prohibit differential treatment under the domestic law of any given country between foreign and domestic companies. This contributes greatly to what has become known as the race to the bottom. Business enterprises may not be breaking domestic law when [*PG79]they benefit from a countrys legal structure that is geared towards maximizing profits but does not provide adequate environmental, health, or labor protections. These enterprises often operate, however, in violation of the rights enumerated in the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social, and Cultural Rights.84 As a law-abiding entity in a country that itself has not become a state party to the Covenants or is not fulfilling its obligations under these Covenants, such a corporation is shielded from accountability as long as it can prove that it did not make any of the key decisions to violate human rights in a country that has incorporated human rights laws into its domestic legislation.85 At the same time, as long as the U.N. Subcommission for the Promotion and Protection of Human Rights and the U.N. Human Rights Commission are reluctant to hold nations accountable for failing to prosecute corporations that violate human rights, the likelihood that these violations will escape international scrutiny remains high.
Alternatively, a law could mandate that corporations, in the course of conducting their activities abroad, provide the same level of protection to human rights, such as labor and environmental rights, as mandated in their home countries.86 Such laws might persuade the [*PG80]domestic corporations of a given country to improve their standards. First, once TNCs are prevented from increasing profits by capitalizing on human rights abuses, host-country domestic corporationsthat currently escape scrutinymay become the targets of a consumer boycott strategy. By analogy, the internationalization of the United States Foreign Corrupt Practices Act87 suggests that if countries impose obligations on their own corporations doing business abroad, there could be a tendency to universalize the legal norm so as to reduce any competitive advantage of corporations not yet constrained by such laws. In this instance it must be noted that, in large part, the countries with the most powerful corporate interests carry tremendous influence in the realm of international law and policy.
Mandating corporations to provide the same level of protection to human rights as in their home countries could, however, place western corporations at a disadvantage in the global market by allowing corporations originating in nations without human rights protections to exploit their labor sources. Western corporations, however, saddled with the protective laws of their home states, would be prohibited from capitalizing in this way.88 The predictable result would be a massive shift in location of original legal incorporation away from developed nations into the jurisdictions with the lowest levels of human rights protection. This, in turn, would result in a rapid elimination of protective laws in the countries that currently do protect human rights in an attempt to encourage corporate headquarters to repatriate.89 Hence, another race to the bottom.90
[*PG81] There are flaws, however, in this race to the bottom argument. First, there are a number of cost advantages and profit motives that influence corporations to establish subsidiaries or to enter into production contracts with foreign governments or corporations. Certainly, wage laws and labor regulations are among these considerations, but they are not alone. For example, the potential to access new foreign domestic markets and favorable tax laws of foreign jurisdictions are important considerations. It is also important to note that the infrastructural, technological, and legal amenities available in the current locations of western corporate headquarters would encourage these entities to stay where they currently are located. Finally, assuming that the commitment on the part of some corporations to abide by human rights standards though voluntary codes of conduct is sincere, it does not make sense that legislation mandating the same types of protections would result in a rapid expatriation. In this respect, the adoption of voluntary codes of conduct is a valuable endeavor. It shows that corporations are willing, and can afford, to raise their labor and environmental standardsnegating one of the primary arguments against legislation mandating such improvements. The adoption of codes of conduct also seems to have resulted in general agreement that the only way to solve [the] free-rider problem is through collective action.91 This recognition that corporations have collectively been free-riding and must collectively terminate this behavior is encouraging. However, it seems that the only real reason to favor voluntary codes of conduct over legislation forcing compliance with human rights law is to escape the potential of legal accountability if the standards are violated.
The interactions between human rights advocates and corporations have resulted in a variety of experiments with codes of conduct. A notable success of the human rights community in this effort has been the relatively common incorporation of human rights language per se in these codes.92 This success can serve as a model for continued negotiation with the international economic institutions discussed in this section. The World Bank, IMF, and WTO, to varying degrees, [*PG82]have been slowly accepting their roles in the promotion and protection of the ideas encompassed by human rights. Notable, however, is their discomfort with accepting and utilizing the strong utopian language of international human rights law and norms in their stated goals of sustainable development and poverty alleviation.
Prior to 1991, the International Bank for Reconstruction and Development (the World Bank) failed to recognize any nexus between its mission and human rights per se.93 Between 1990 and 1991, however, the World Bank adopted two new institution-wide directives to stem the human rights abuses most often cited in connection with the development projects in which it was involved. The first directive addressed the problem of involuntary settlement, which often occurs when a development project is executed.94 The second directive concerned the rights of indigenous people when development projects interfere with their well-being.95
Thomas Berger, who in September 1991 was appointed Deputy Chairman of the Independent Review of the Sardar Sarovar Projects, commenting on the policy directives leading up to his appointment, states:
These policy changes at the World Bank reflect the world-wide development of human rights concepts. These changes constitute a recognition that large-scale projects, especially in rural, wilderness and frontier areas, may displace people just as war and natural calamities do. The policy changes focus on people who are being displaced by the advance of development, and require that in any project the human rights of the oustees must be respected. According to the ILO, [*PG83]these rights should not be impaired on grounds of national sovereignty or national economic interest. While such considerations may justify a project; they do not justify the nullification of these basic human rights.96
These directives reflect a shift in World Bank policy. They also serve as useful mechanisms to question the World Bank and the countries that it aids regarding human rights violations.97
After adopting the operational directives mentioned above, the World Bank established an Independent Review panel in 1991 to evaluate its Sardar Sarovar project in India.98 This review was not entirely favorable and cited both the World Bank and the government of India for human rights abuses in the execution of the development project under review.99 Ultimately, the author of the review asserted that development projects should be initiated only if they comport with human rights and environmental standards.100
As a result of negative reviews such as this one, the World Bank has tried to redirect its development projects toward small scale, integrated programs that are economically sustainable, environmentally benign and embraced by the people they purport to help.101 In 1997 the Secretary-General of the United Nations, Kofi Annan, stated his [*PG84]intention to foster closer links among the human rights experts of the treaty bodies, the mechanisms of the United Nations Commission on Human Rights, and all the entities of the United Nations system, including the World Bank.102 As part of this enlightened policy toward development projects, the World Bank invited hundreds of environmental, human rights, and poverty-fighting organizations to participate in World Bank initiatives and project analyses.103 In fact, the World Bank produced a draft form Handbook on Good Practices for Laws Relating to Non-Governmental Organizations.104 Further, when NGOs are involved in its projects, the World Bank now functions under a Good Practices Directive.105 An increase in the number of NGOs monitoring and advocating human rights in the context of World Bank activity is a positive step in increasing enforcement of human rights norms.106
Still, there is reason for skepticism. At least one NGO has warned that the internationally protected right of freedom of association was potentially infringed upon by the 1997 draft of the Handbook for laws regulating NGOs and NGO behavior.107 Also, there is evidence that even after the adoption of the directives mentioned above, the World Bank has continued to violate the human rights it has asserted it will aim to protect.108 This is not surprising, given that, although individual member states may veto measures that aid countries that engage [*PG85]in gross human rights violations,109 the World Bank does not require countries to guarantee observance of internationally recognized human rights as a precondition to receiving assistance. In fact, under the Banks Articles of Agreement, its only lending criteria remain economic considerations.110 While this term has recently been interpreted to include health, environmental, and gender related matters,111 the World Bank remains unwilling to condition its lending on a demonstrated commitment to human rights.
As late as 1998, the World Bank continued to present itself as a politically neutral institution,112 independent of the human rights regime. However, in September 1998, in celebration of the 50th Anniversary of the Universal Declaration of Human Rights, the World Bank published a document declaring its commitment to integrating human rights concerns, especially economic, social, and cultural rights, in its activities.113 In this publication, the World Bank acknowledged the need to reinvigorate its commitment to human rights,114 increase its contacts with civil society,115 and invited civil society to [*PG86]continue to press the needs of the neglected, the isolated, and the victimized.116
Starting relatively quietly in June of 1999 and much more notably in November 1999, large numbers of activists and protesters began a concerted and loosely connected struggle to bring attention to the actions of the World Bank, IMF, WTO, and other international economic actors. Their activities brought a great level of attention to the issues surrounding the activities of these economic institutions and their social and environmental impacts. By raising popular awareness of economic globalization and World Bank activity, such protests have arguably placed the human rights community in a better position to negotiate with the economic community.117
This Article concerns itself with the contacts and negotiations between these two communities and, more importantly, the product of these contacts. It encourages human rights advocates to use this improved position to its fullest advantage, keeping in mind the power of the utopian language of human rights and its rhetorical appeal to a democratic public. As the human rights community makes inroads with the World Bank and other institutions, it is essential that human rights advocates adhere to the traditional language of human rights rather than seek the approbation associated with the traditionally economic language of the World Bank or other economic institutions.
Compared to the World Bank, the IMF continues to operate in greater isolation from human rights concerns.118 In part, this is due to the IMFs primary concern with implementing macroeconomic policies that lead to high productivity, high employment, high savings and consequently more investment and a higher flow of export trade.119 The organization is less involved with the microeconomic issues in which the World Bank participates.120 While the World Bank [*PG87]or regional development banks lend for specific projects, the IMF instead assists countries for discrete periods of time. Its macro level of operations, therefore, has sheltered the IMF from a direct linkage to human rights violations for longer than the World Bank or regional development banks.121 Additionally, the shorter time frame of IMF involvement makes it difficult for the IMF to require member states to improve their human rights records during the period of IMF involvement in a particular project.122
Historically, the IMF was extremely reluctant to publicly suggest that it should play a role in the promotion of human rights objectives.123 Since its inception, however, the IMF has been in a powerful position to influence human rights implementation in its member states.124 Two mechanisms within the IMF procedures, Article IV consultation and conditionality, create avenues via which the IMF could advance human rights.125 The IMF may consider political issues in [*PG88]conducting consultation and in determining conditionality factors.126 In fact, the IMF has more freedom to consider human rights issues than does the World Bank.127 While the World Bank specifically began considering human rights issues some time ago, the IMF historically interpreted its Articles in a way that to allowed it to remain uninvolved in advancing human rights.128 The IMF did not construe its responsibility as one that required promoting human rights. Rather it construed its responsibility only as a duty to address the social dimensions of the macroeconomic policies it prescribes for member states.129
In 1995, however, there were two indications that the IMF was becoming more aware of its unique position to affect human rights. The first indication was the public IMF acknowledgment that the importance of social issues for sustainable economic and social development has become increasingly evident.130 At that time, the IMF recognized that it holds an important position of persuasion and expressed its intention to use that position to further improv[e] governments capacity to monitor social developments and pursue transparent social policies.131 The IMF, however, expressed its intention to do this through policy discussions and technical assistance132 rather than by establishing human rights or economic justice conditions on [*PG89]the use of IMF funds.133 The second indication of the IMFs increasing human rights awareness was its explicit recognition of the potential benefit of consultation with United Nations agencies with expertise on the social dimensions of human rights.134 At that time, however, the IMF only hinted at the need to begin consultation with NGOs.135
Emerging from its 1999 annual meeting, the IMF began to openly and consistently acknowledge a role in poverty reduction and its associated human rights protections. At that time it decided to strengthen its focus on poverty by replacing the Enhanced Structural Adjustment Facility (ESAF) with the Poverty Reduction and Growth Facility (PRGF).136 Loans under the PRGF are provided to the worlds poorest countries and are based on Poverty Reduction Strategy Papers (PRSP), which articulate each borrowing countrys strategy for poverty reduction and integrate macroeconomic, structural, and social policies into one document. The key features that distinguish the PRGF/PRSP procedure from the ESAF include vesting the borrowing country with design and ownership of its own poverty reduction strategy; integral participation of the World Bank in all poverty reduction [*PG90]strategies; and involvement of scholars, international institutions, NGOs, and civil society generally in the design of the PRSPs.137
The IMF now intends to maintain consideration and incorporation of social policies at the level of the PRSP.138 If PRSPs function as they are designed, the IMFs involvement in a given countrys economic policy could provide borrowing countries with the opportunity to both assess their human rights situations and to design and implement strategies for improving domestic human rights protections. The May 2000 PRSP of Burkina Faso exemplifies a strategy that places a high priority on human rights in its development and structural adjustment efforts.139 Other countries took Burkina Fasos lead in viewing the PRSP as an opportunity to assess how better protection of human rights can aid in the development of their countries and how increased economic development can aid their efforts to advance human rights.140
[*PG91] The IMFs position on human rights demonstrates its interest in self-improvement and its ability to contribute to poverty alleviationand thereby promote human rights. The degree and speed by which the IMF has re-oriented itself with regard to human rights is notable. Still, there is room for improvement. The IMF continues to view itself as an organization fundamentally unable to analyze human rights situations and concerns. Encouragingly, the IMF has made clear its commitment to continued improvement of its activities.141 It has stated that it will depend on other international institutions, the work of NGOs, and civil society to help it in this arena.142 Marked improvement to IMF policy can surely be made by involving these contributors. As will be discussed below, the vigilance of these actors in promoting the utopian language and ideas of human rights is essential to ensure that human rights are protected all over the world.
The WTO is, without debate, the multilateral economic institution making the last stand for isolating its policies and practices from the incursions of human rights concerns. The historical progression of the WTOs position on collaboration with other multilateral institutions, NGOs, and civil society is very similar to such collaboration by the World Bank and the IMF. Until recently, the WTO had not fostered any real communication with its economic counterpartsdespite agreements between the institutions to do so.143 Further, it had not established formal methods for cooperation and communication between itself and the United Nations, the United Nations human rights organs, or members of civil society, including NGOs.
Since 1999, the United Nations Sub-Commission on Promotion and Protection of Minorities has repeatedly publicized its concerns regarding the insular, non-transparent, non-democratic nature of WTO procedures144 and the substantive effect of particular WTO [*PG92]rules or practices.145 Commentators have also noted the insular nature of the WTO, the potential negative effects of the WTOs work on human rights, and the organizations reluctance to engage sectors of the international community concerned with human rights.146
It was not until its Fourth Ministerial Conference held in Doha, Qatar in November 2001, that the WTO first indicated some response to calls for change in its policy. The Doha Development Agenda, which resulted from this conference, refocuses the work of the WTO to the situation of the worlds poorest nations and people.147 Moreover, there is ample evidence that as a result of the Doha Development Agenda the WTO is undergoing a significant shift in its orientation and openness to human rights concerns and the welfare of the individuals affected by its work.148 One example of this shift is the WTOs 2002 Annual Report, which acknowledges that certain adjustments to [*PG93]the [WTO] rules [are] needed if the trading system is to better reflect the social, economic, and political conditions of a rapidly changing world.149 In this report, the WTO also addresses the high level of concern on the part of the United Nations, academic commentators, and NGOs regarding the WTOs lack of transparency and abysmal record for consulting with civil society and NGOs.150
One proposal for facilitating WTO consideration of human rights law is to establish a human rights office at the World Trade Organization.151 This proposal recognizes the current failings of both unilateral and multilateral human rights enforcement mechanisms. It argues that human rights advocacy and WTO enforcement mechanisms should be combined in order to take advantage of the strengths of the two systems.152 Such a combination would be comprised of a multilateral regime using sanctions to enforce core human rights and remedy violations of those rights. Thus, the might of unilateral actions, in the [*PG94]form of trade sanctions by a powerful nation, can be made even mightier by the multilateral support of other less powerful nations.153 One benefit of this approach is the possibility that a human rights office within the WTO could ensure that human rights are integrated into WTO policies in a transparent and predictable manner.
Another strategy for WTO reform lies in Article XX of the GATT. It is widely accepted that human rights advocates should focus on this section to support the inclusion of human rights concerns in the policy and decisions of the WTO.154 Article XX of the GATT states that nothing in the GATT
shall be construed to prevent the enforcement by any contracting party of measures . . . necessary to protect public morals . . . human, animal or plant life or health, [or] relating to the conservation of exhaustible natural resource measures . . . essential to the acquisition or distribution of products in general or local short supply [and] . . . relating to the products of prison labour.155
One commentator contends that consideration of basic human rights has been a part of the GATT system since its inception. She points out that Article XX of the GATT, which allows the exclusion of products made with prison labor, has never been challenged by the GATT/WTO member states.156 In fact, through advocating for a WTO social clause, a number of nations have pushed to include a wider range of human rights provisions.157 Furthermore, Article XX(e) already lays the groundwork for a human rights body within the WTO. Trade and human rights are already linked within the GATT because Article XX(e) appears to permit one member to use trade sanctions to protect the human rights of citizens of another member.158
[*PG95] This proposal is appealing because it provides a multilateral mechanism for the enforcement of human rights that is intrinsically tied to entry into globalized trade. It is problematic, though, because it limits exposure to sanctions by limiting the rightswhich if violated would be legitimate grounds for multilateral trade sanctionsto the most widely accepted civil and political rights.159 Although this adheres to the traditional hierarchical structure of human rights, such a proposal has the effect of undermining a strand of the genealogy of Article XX, the very hook used to validate the proposal for a human rights office at the WTO.160
The WTO is no longer as insular or as opaque as it was just two years ago. The Doha Development Agenda changed the landscape for the WTO and for those who advocate for WTO inclusion of human rights concerns. Although it has not created official avenues for civil societys and the United Nations human rights bodies participation, these sectors clearly have started to enter into negotiations with the WTO.
Mike Moore, the Director-General of the WTO, stated unequivocally in his farewell address to the WTO General Counsel that the WTO has a new focus to help the worlds poor.161 As his closing remark he stated: I will continue to serve the public. I can think of no greater vocation. I may even join an NGO or march with the protesters to the gates of this very institution. You will know me immediately. My banner will say Justice Now, Finish the Round.162 If this should ever come to pass, perhaps the new WTO Director General, Dr. Su[*PG96]pachai Panitchpakdi, will see fit to open the doors and talk with both his predecessor and his newly befriended NGO colleagues.
International economic institutions quite clearly are uncomfortable with the language of human rights. They prefer to address specific social issues rather than open themselves to the far broader and more substantive area of human rights. To illustrate, in 2000 the IMF, together with the United Nations, the World Bank, and ECOSOC, published A Better World for All, which stated the joint commitment of these organizations to alleviate poverty and consider development-related issues.163 Although this document does mention human rights generally, it neither names specific articles of the basic human rights documents nor directly refers to specific human rights per se. When referring to its specific goal of reducing infant mortality rates, for example, the document does not refer to this social issue as embodied in Article 12(2)(a) of the International Covenant on Economic, Social and Cultural Rights.164
Likewise, the IMFs and the World Banks uneasiness with assigning these social issues their internationally accepted status as human rights was again made clear in January 2002 when the IMF Managing Director and the World Bank President held a Townhall Meeting with civil society representatives participating in the International Conference on Poverty Reduction Strategies. When addressing the particular topic of labor and union movements on behalf of both institutions, James Wolfensohn, the World Bank President, gave this illustrative comment:
I just met a few months ago with John Sweeney on the subject, and were in regular contact with the international labor union movements to try and see what we can do to bridge that gap. But I really believe that, while we dont call it a rights-based approach, which Mrs. Robinson would like us to do, on each issue we are, in fact, addressing the questions which Mrs. Robinson is addressing.
[*PG97] I dont want to move to a rights-based approach because I think Im stronger in what Im doing, but we will continue the discussion with Mrs. Robinson on whether it should be [framed that way] . . . .165
While clearly acknowledging the importance of the goals enumerated in established human rights instruments, and in fact stating that the World Bank and the IMF are addressing the questions which human rights law aims to address, the reluctance of the World Bank President to take a rights-based approach is puzzling. If the work of these financial institutions is, as President Wolfensohn suggests, substantially equivalent to what it would be if they used a rights-based approach, it seems essential to press for the reasons behind their reluctance to use the language of rights.
While there may be disagreement over which rights international financial institutions have a responsibility to uphold, there should be little disagreement that these institutions now consider the ideas embodied by human rights a factor in their operations. Increasingly, human rights advocates and international law scholars are focusing on these institutions. Consequently, a perceptible institutional awareness of the importance of advancing universally accepted human rights has taken hold.
In the World Bank and increasingly in the IMF, this awareness has now taken a relatively strong hold. In the WTO, however, it is still in the early stages of development and remains opaque and largely undefined. This institutional shift is crucial to increasing the promotion of human rights and the quality of human rights enforcement mechanisms.166 Similarly, the entry of human rights into the every-day conduct of transnational corporations is evidenced in the voluntary as well as government-mandated and institutionally imposed codes of conduct discussed herein.
The question should no longer be whether these economic international institutions and transnational corporate actors will become locations for the protection and advancement of human rights but rather how this shift will come about. This brings to the fore a whole range of pressing inquiries, some of which have been addressed in the [*PG98]discussion above: in what capacity will traditionally economic actors advance human rights; to what extent will they do so; and which rights should be promoted or enforced. While the questions are simple, the answers will be complex. They should be developed carefully with the intention of encouraging active awareness of these rights and the recognition that international financial institutions can play a crucial role in the implementation and enforcement of human rights. Long overdue, the coming challenge is to maintain intellectual fortitude in the advancement of human rights at the points of contact with the economic sector.
For the purposes of this Article, it is important to be cognizant of the entries that the human rights community, its law, and its norms have made into the international economic sector. These entries amount to a novel but tangible encounter that has been revealed through the investigation undertaken above. The next section of this Article discusses one specific aspect of this interaction: the language used, defined, and developed during the interchange between human rights institutions and advocates and their international economic counterparts. Specifically, this Article addresses the imperative of conducting the interaction between these two international domains in a language that maintains the compelling essence of human rights. It argues that this should be done in the interest of creating and advancing a language of encounter that strengthens and promotes rights. Essentially, it is an optimistic view of the potential for forging language that enhances public international law and places human rights concerns squarely at the center of international economic activity and policy.
Many social scientists have noted the emergence of the Global City or its equivalent.167 The amalgamation of international communities with differing interests, however, is better described for the [*PG99]purposes of this Article as the international plane. This distinction is necessary because the image of a global city or the global village implies a theoretical space where the inhabiting population gathers into one group, in a domain small enough to imagine its current and future boundaries.168 Further, this image implies that there is some form of infrastructure, generally government, necessary to conduct the negotiations and compromises needed for a culturally disparate and diverse populace to co-exist.169
The novelty of the interactions between human rights and international economic actors suggests a space much different than that of the global city. The international plane envisioned here, though identifiable, is still largely uncharted. It is possible to identify the individuals, groups, and institutions participating therein. It is also feasible to discern the locations of action and interaction of these parties. But defining locations of activity is different than identifying a cohesive and delineated place called a city. The international plane is not a singular location with definable boundaries. In fact, boundaries currently seem to be its antitheses structure, from which the participants aim to escape. In this way, the international plane is different than a city.
Additionally, unlike a village or a city, there is no singular form of government under which all participants are expected to behave.170 A cohesive set of decrees constituting governmental control does not exist; there is no legal structure with which all the actors in this international plane must comply. The locations of activity on the international planethe various forms of international law, cross-border business transactions, immigration, tourism, et ceteraeach have rules governing particular activities or fields of work. For example, international financial institutions have articles of agreement and are founded on a shared philosophy that aims to advance liberal eco[*PG100]nomic policies such as free and fair trade.171 Those advancing a global economic order act in accordance with these philosophies. They abide by and frame their work around the rules and policies central to their institutions. Similarly, human rights institutions share a common vision, as evidenced by the Universal Declaration for Human Rights and subsequent human rights instruments.172 The individuals participating in the development of human rights law act in accordance with the philosophies, rules, and procedures that are common to human rights actors and often distinct from those of economic actors.
Participation in the global involves reaching across national borders in an attempt to join people with commonalties on a global scale. This act creates new places of activity. For example, internet specialists and browsers connect with their foreign counterparts in the territory they call cyberspace. Similarly, indigenous peoples transgress the boundaries of nations and create a new location when they gather at the United Nations for the annual meeting of the Working Group on Indigenous Peoples.173 The very name of the organization Doctors Without Borders is indicative of this characteristic.
Within the legal profession, too, specialization and internationalization abounds. Immigration specialists work with their counterparts in various countries; human rights advocates do the same. They create and populate sites of globalized activity. The World Bank and the IMF have explicit policies of hiring lawyers from a wide range of countries who are trained in international economic law.174 These [*PG101]finance and economics-focused lawyers incarnate yet another community with its own interests. Although institutions, seminars, and conferences are the actualization of these locations, they can exist without physical or material places. These sites of activity can be identified and are tangible without actual embodiment. Thus, even actors not present physically in international institutions can participate in their particular specialized field at the international level. Similarly, the domain that makes up international human rights activity does not cease to exist on days without international conferences or meetings. Rather, this domain exists, at least on some level, simply because people believe themselves to be participants in international activity and actors on an international plane.
What seems to emerge, therefore, is not a single global city but an accumulation of many theoretical locations that can be described as communities or perhaps sovereigns of a sort. Each is composed of individuals who, through self-identification with a particular activity or profession, participate in the life of that community.175 We can tenuously call these communities sovereigns, because, to a large extent thus far, they have governed themselves while creating a territory that is not governed by the whole or by any superstructure. Each of these communities are bound by a mass of conflicting laws and interests of the various national jurisdictions of their participants. Upon entering the international plane, however, their relations with one another are also defined by the rules of the particular international community. Yet there is no overarching government that regulates or provides a single forum for interaction, cooperation, or conflict among these internationalized communities.176
This absence of government, defined mechanisms, and forums for communication among the various communities that comprise the international plane creates a vacuum. When two or more communities expand or shift in a direction that impacts another commu[*PG102]nitys zone of interest, an encounter results.177 The communities or regimes then can either ignore any resulting discord or enter into negotiations. Negotiations, naturally, can either lead to compatibility or continued and more elaborate discord.178
Part II of this paper demonstrated one point of encounter: the demonstrable interaction of the human rights domain and the international economic demesne. Presently, these two modern, liberal realms, originated and maintained as separate worlds on the international plane, are investigating each other. Of course there are points of contact between these communities that remain in thorough discord. As the points of tumultuous conflict, they attract significant popular attention.179 More surprising and encouraging about these points of encounter, however, is the cooperation that emerges from them. Part II demonstrated a series of encounters and long negotiations that have resulted in significant cooperation. The remainder of Part III discusses prospects for future encounters. Specifically, this section examines the language that these interactions emit, illustrating the importance of consciously maintaining and promoting the strong aspirational language of human rights.
As a preliminary matter, it is vital to examine the environment in which the negotiations are taking place. The international economic community and international human rights communities can not discern the limits of their present day scope and reach, much less their future. They interact in a space not facilitated or regulated by any [*PG103]governmental superstructure. Finally, the only potential resistors of their interactions are the sovereign nations affected by the outcomes of the interchange. Thus the obstacle to determining and implementing results that promote and protect human rights will be the ability to convince nations that, on balance and over time, the results serve their interests.
The 1990s were an era of renewed and intense interest in foreign direct investment. The human rights community, witnessing this activity, derived two conclusions. First, it concluded that TNCs and investors have a responsibility not to allow degradation of the environment and abuse of the labor force to be considered tools for profit-maximization. This conclusion fueled desires to implement codes of conduct regulating the actions of transnational corporations.180 Second, as evidenced herein, as the desire to attract foreign capital and investment experiences ebbed and more countries were willing to sign treaties like the GATT, human rights groups saw the excitement over neo-liberal economics as an opportunity to form ties with the global economic actors and, thereby, to advance human rights.
Using international financial institutions, human rights advocates hope to convince countries that have thus far resisted pressure to accept the legitimacy of liberal human rights to do so in concurrence with western liberal economic models, or rather, to adopt liberalism as a complete rather than as a bifurcated or partial package. Additionally, those countries that already have acquiesced to the liberal economic model may be able to use financial institutions to strengthen the pressure to observe and enforce human rights. If human rights or scrutiny over social issues181 are included as part of the package of WTO, IMF, or World Bank membership, both of these objectives will be furthered. Perhaps, if the benefit to a given country of the liberal economic model is viewed as indisputable and sizable, [*PG104]the cost of succumbing to human rights and enforcement thereof will seem diminished in comparison.
This thought process has led human rights institutions and organizations to pressure the international economic community to integrate human rights into their activities. While it is notable that this pressure results in various cooperative efforts between these two communities, it should not be surprising. Both traditions emerged in part from liberal ideology, and both sets of institutions aspired to create a stable and peaceful world order.182 Further, architects of both systems believed that multilateral bodies are central to addressing global problems. In order to legitimate their claims to universality, both communities seek to persuade all sovereign nations that their models for addressing global problems are meritorious. Additionally, founders of the Bretton Woods System recognize that a growing number of economic, environmental, and social problems are beyond the ability of the IMF, the World Bank, and the GATT to manage.183 Accordingly, they have commenced an inquiry on how these institutions can respond to such problems.184
One must also consider the similar attributes of the individuals who make up both of these communities. Most have received extensive educationmany of them in the same educational facilities in London, Oxford, Cambridge, New York, or Washingtonduring which these individuals confirmed their membership in a cosmopolitan class.185 These common experiences simplify encounters by diminishing fundamental issues, such as the national language in which discussions will be conducted and the rules of professional and social conduct to be observed with one another. These commonalties possibly have assisted the human rights community in persuading their economic counterparts to enter negotiations and in implementing the outcomes of such negotiations.
[*PG105] The ability to compromise about the subjects and areas for negotiation has also been important in convincing the international economic domain to interact with the human rights community. Codes of conduct, IMF PRSPs, a human rights office at the WTO, and the importance of the poor and underrepresented assume the continued existence and vigor of the economic domain. This assumption has created a space for financial institutions to permit human rights to enter their fields without formally conceding their own set of bundled sovereignty rights, which they would prefer to maintain. Successful proposals for interaction between these two entities likely will further human rights interests while assuring international financial actors that this will not result in their own loss of autonomy or importance in world affairs.
There is one final characteristic of the individuals who make up these two particular legal communities. As lawyers, these individuals are likely to be extremely focused on the importance and potency of words.186 They belong to a profession that passionately haggles over meanings of individual words in order to arrive at a definition most favorable to the client or to the interest they serve.187 Further, as international lawyers, most of them have experienced the power of language when they have either been empowered or marginalized in conversations, depending on their ability to speak various national languages.
One should not underestimate the language-creating capacity and experience of both societies. For example, many of the nouns used in this essaynouns as important and obvious as WTO, NAFTA, GATT, IMF, World Bank, ICESCR, ICCPR, and UDHRwere created and have entered into use since 1940. These communities also continue to adopt verbs and vest them with specific meanings that reference their particular activities. One such verb that will be addressed below is consult, though there are others like coordinate, exhaust (domestic remedies), intervene, and adjust each of which have very specific definitions in particular contexts. Among people who are formally trained or at least exposed to the importance of negotiation and getting to yes,188 the points of encounter of these [*PG106]communities will be heavily centered on negotiations regarding the promulgation and definition of the language that will define future cooperation between them.
At the nexus of these two very different languages for special purposesone focused on rights, the other on economic activitygrows a new language for the purpose of integrating human rights and international economic policies.189
If one envisions languages as tools that serve particular needs, and further assumes that the users of such tools will choose language suitable to their specialized purposes, it is natural to conclude that, as communicative needs evolve, so must the languages used by their speakers.190 In the context of the nexus shaping between international human rights and economic actors, there is evidence of this evolution. The resulting language will likely be an amalgam of the two original languages, which is better adapted to its purpose.191 Linguists have developed the terms pidgin, Creole, lingua franca, and vehicular language in order to explain the new languages that emerged from traditional colonial era encounters.192 Largely referred [*PG107]to as trade languages because of their colonial history, pidgin languages are the first to develop at locations of exchange after initial unstable jargon becomes insufficient.193
The language emerging from international economic and human rights encounters can be analogized to the pidgin language formation of the colonization era. These common forms of language adaptation arose from situations of social pressure and inequality194 and were typically despised for lacking the prestige of a literary tradition and socially respected speakers.195 Thus, the language emerging from the nexus of these two communities matches the characteristics of a pidgin language with the possible exception of the social respect that its speakers enjoy.196 Nonetheless, the analogy is at least functional in every other respect. Both the human rights and the international economic communities feel pressure to interact in order to further their own aims. Additionally, these two international law domains are unequal in popularity and enforceability.197 Finally, the pidgin language emerging from the interaction of these two communities will be influenced by, but independent of, the literary tradition of either international economic law or human rights.198
[*PG108] Thus far, the language that has emerged from the points of contact illustrates the tendencies of language formation between these two communities and the resulting power balances. Consult is one illustrative word, together with its variations. Human rights and international economic advocates alike, since the creation of their respective institutions, have used consultation as the method to connect with nation-states. Both have defined consultation similarly and use this activity to understand state practices and influence their policies. Agreement over this word enabled the World Bank to consent to consult with human rights nongovernmental organizations as one of the first formal cooperative breakthroughs between these communities.199 Consultation was identified as an activity that did not require negotiation over the definition itself, and in which both communities have extensive experience and facility.
Perhaps more interesting is the development of new words or word meanings previously not used by either community. For an example of language creation, the IMF case is helpful. While the IMF has been slow to make public statements about its responsibility vis a vis human rights, it has promulgated a formal statement about the social dimensions of its work.200 In this statement, the IMF recognizes that it has major implications for the three core issues of the World Summit on Social Development (WSSD)poverty alleviation, promotion of employment, and social integration.201
Social integrationas defined in U.N. documents for the Social Summitconcerns the ability of different groups in society to live together in productive and cooperative harmony and to accommodate differences within a framework of common interest to the benefit of all. Social integration implies justice for the individual and harmony among different social groups and countries. It means integration of disadvantaged and vulnerable groups by making all institutions of society more accessible to them.202 The IMF recognizes that vulnerable [*PG109]groups need to be protected through well-targeted social safety nets and that IMF-supported programs should improve access to social services, including primary education and health.203
The list of IMF social issuespoverty alleviation; employment; social accommodation for disadvantaged individuals and groups; and access to public service including health and education programsroughly corresponds to rights found in the ICCPR and ICESCR. Poverty alleviation evokes the right to an adequate standard of living, including food, clothing, and housing. These are rights protected by nearly all of the ICESCR. The right to employment corresponds specifically to Article 6 of the same document that protects the right to work. Similarly, the created term social integration204 and its officially promulgated definition correspond to a number of rights enumerated in both the ICESCR and ICCPR, including the right to self-determination, 205 the right to be free from discrimination,206 and the right to social involvement in society.207 Finally, the rights of access to public services, including health care and schooling, are also protected in the ICESCR.
Instead of recognizing and citing these rights as the foundation for the social dimensions of its work, the IMF currently distances itself from human rights norms and documents by using ambiguous language that loses the moral imperative and the legal efficacy of the rights enumerated by foundational human rights documents.
It is encouraging that the IMF has made the step of at least incorporating social issues. It is important to note, however, the negative implications of allowing an international institution to invent language when it does not fully address the human rights problems to which it claims to be attentive; it potentially could both demote the legal potency as well as obfuscate the global familiarity that human rights language has attained. It is important to retain the character of a particular human right as a right, rather than allowing it to be framed as a social issue. One international legal scholar explains that characterization of a specific goal as a human right elevates it above the rank and file of competing societal goals, gives it a degree [*PG110]of immunity from challenge, and generally endows it with an aura of timelessness, absoluteness and universal validity.208
Arguably the entire discussion of sustainable development and the alleviation of poverty is evidence of the continued interaction of these two communities, the first rhetorical and substantive fruit of their cooperation with one another. It is notable that joint publications such as A Better World for All have been framed entirely in this language of poverty alleviation and attention to the worlds least privileged people. A trend that seems to be emerging in these joint documents is common reference to a particular topic of human concern as a social issue rather than as a human right. These are all hints of an emerging Pidgin language.
Each new linguistic development between the two communities is, at the very least, a limited success in the attempt of the human rights community to enter into the daily operations of its economic counterparts. It is not possible to discern with any degree of certainty whether this emerging pidgin language and the rights that it protects is, on balance, emerging as weighted more heavily in favor of rights or the economic domain. Nonetheless, the original political inequality of the two worlds exposes the imperative of maintaining strong human rights language in the negotiation over substantive institutional change.
The language that is born from the negotiations between the international economic and human rights domains is substantively important. If the European Bank for Reconstruction and Developments unconcealed reference to human rights in its statute209 is a substantive victory, then it follows that the IMFs reluctance to use this term, by inventing the terms social issues, social dimensions, or social integration, and the WTOs disinclination to even mention social issues, falls short of this mark.
As a language is learnedand certainly as it is inventedit can limit the possibilities for substantive critique of a particular paradigm. Carol Cohn explains, learning [a] language is a transformative, rather than an additive, process. When you choose to learn it you enter a new mode of thinking.210 She illustrates that the language in [*PG111]which a profession is framed has the effect of transforming the entire field and the individuals who participate therein. As a feminist and a peace-loving person, Cohn entered a year long program in which she was immersed in the world of defense intellectuals.211 During the process of learning the specialized language of military strategy, she found that she could not use that language to express her concerns about militarization generally or about the sexism inherent in that language. For example, she explains, the word peace is not a part of this discourse. As close as one can come is strategic stability.212 Immersed in the accepted discourse of the military community, she found it difficult to maintain the legitimacy of her convictions even within the safety of her own head.213
The encounters between the economic and human rights communities occur through the participation of the individuals who work or advocate within each of those communities. Their commonalties and sustained contact with one another hold risks for the advancement of human rights. Cohns description of the totalizing effects of language modification, the ability of language modification to limit alternative avenues for social change, as well as its capacity to alter the substance of discourse and even the participants therein, suggest that in order to sustain the rhetorical power of rights language and the substance it carries with it, human rights advocates negotiating with their economics-focused counterparts must consciously retain the language of rights. Further, they must adamantly oppose language that demotes human rights from their elevated status as rights to that of issues. This is important for the negotiations and discourse itself, and essential in the language used to describe any outcomes from the encounters in the form of statements, agreements, or treaties.
The compelling quality of human rights rhetoric has been a cornerstone of the argument that the international economic domain has a responsibility to incorporate human rights considerations into all its activities. The aspirations set out in the Universal Declaration of Human Rights and its progeny have the ability to move the imagination. This quality also has induced a wide range of communities and interest groups to use the human rights system for their own protection. Since the creation of the UDHR, human rights law has gained such popularity and achieved such status that nearly every modern [*PG112]cause has sought to use the language of human rights to give it greater validity.214
When human rights advocates participate in negotiations with the international economic community, they represent all individuals who use the universal and regional mechanisms for human rights. Language compromises in these encounters may have a detrimental effect on the individuals who depend on the human rights systems protections when negotiations yield insufficient results. Negative outcomes immediately effect the ability to advance human rights through economic instruments. But the negative consequences do not stop there.
Language compromises have the effect of dominating the field of interaction between the human rights domain and the international economic domain with formal statements, agreements, or treaties that effectively take the form of precedents for future interactions. As such, these compromises may eliminate potential future actions on a particular problem. For example, maintaining a language that imperatively states that indigenous peoples have a right to self-determination and the right to control their own territory is a far stronger protection for indigenous peoples than language that suggests that the interests of indigenous peoples will be balanced against those of an economic actor wanting to make use of land traditionally occupied by indigenous peoples. These two options roughly model the protections declared by ILO Convention 107 and the relocation policies of the World Bank, respectively. The cost/benefit method employed in the second example, if widely adopted as a method for dealing with the issue of indigenous peoples land rights, could have repercussions far beyond the specific example of the World Banks compromise on the issue. It establishes a model and precedent for the future interaction of economic and social considerations that uses solely economic language, foreclosing the powerful rhetoric of the rights at the foundation of social considerations and social issues.
Another example lies in the model of the international environmental movement. This model is now so economics based, that countries may soon be able to purchase and sell pollution rights on trading floors. It provides a good example of the defeats inherent in adopting economic language for the protection of what was previously imagined as an absolute right. While such a trading system may advance the goals of reducing overall carbon-dioxide emissions, it also margi[*PG113]nalizes the morally-based idea that humans over-consume, and that their over-consumption is inherently bad for the planet. It also virtually eliminates the utopian vision of a world without pollution. Creating a permanent and legitimate market for pollution certainly has the global effect of marginalizing the idealistic language of environmental rights. This example argues for avoiding this model of language adaptation while inventing the mechanisms for the international economic community and the human rights community to cooperate. It also demonstrates the human rights communitys primary responsibility to maintain and advance the strength of the individuals it aims to protect.
Our reconstructive task is a task of creating compelling alternative visions of possible futures, a task of recognizing and developing alternative conceptions of rationality, a task of creating rich and imaginative alternative voicesdiverse voices whose conversations with each other will invent those futures.215
At this early stage of interactions between international human rights advocates and international economic actors, the task for human rights advocates at the points of contact discussed in Part III is to retain the compelling and utopian language of rights. As alternative language such as that evidenced by the creation of terms such as social issues, social concerns, and social integration has clearly started to emerge from these contacts, rights advocates should carefully consider the implications of compromising intact human rights language.
Rights negotiators can more successfully maintain a strong rights-based language if they are conscious of the implications of conceding to new language that is overly dominated by economic rhetoric and tools, as has occurred in the encounter between the international economic and international environmental entities. To maintain the full impact of the utopian vision of the human rights system, it is better to employ imagination than to concede to what is simply the best among pre-existing options. In this way, rights negotiators can arrive at what is truly best for the advancement of human rights. The language that emerges from this imaginative effort will be the language [*PG114]that connects the two domains and determines how international economic institutions and actors will integrate, protect, and enforce human rights. It will also determine which rights they will allow to influence their activities.
It is essential to retain a plain language with respect to human rights. As advocates of the plain language movement have noted, the purpose of drafting in plain language is to enhance democracy and the rule of law, by ensuring it is accessible to all people and that all people understand that the language applies to them.216 Given that human rights have attained a high level of universal institutional, governmental, and popular familiarity, maintaining a clear human rights language is essential. The imperative of using clear language is especially strong in the context of human rights, where violations of established law and standards results in violations of human dignity. The language of human rights, in order to be understood by those it aims to protect, must, above all, be intelligible and accessible.217
As pidgin languages mature and are adopted by future generations as their own native tongues, they are termed Creole languages. One characteristic of Creole languages is the totalizing effect they have on the new generation that knows neither of the original languages from which the pidgin language emerged. The rapid formation of international economic language, international human rights language, and the pidgin language they are forming in their contact with one another suggests that both communities have a capacity for rapid creation and transmutation of language. Accordingly, the future Creole generation that will barely remember an era in which these two communities did not cooperate is already rising. In considering these future generations, human rights advocates and negotiators have a responsibility to advance a language that retains real as well as rhetorical potency in order to sustain the potential for utopian imagination so traditionally inherent in the human rights movement.