This is because the human rights paradigm, as shaped by the post-World War II developments, comes to rely on the responsibility of State actors, making them the only direct holders of obligations. But economic aspects of globalization such as the rise of international trade and financial flows across borders, deregulation and privatization and the reduction of the role of the state, erode the capacity of States to take active measures required to respect, protect and fulfill human rights in their territorial jurisdiction.
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Economic and social rights call, by their essence, for a State more capable of taking active measures in economic and social policy-even when these active measures do not amount to intervention but to a more active regulation and oversight of private sector activity 3. The same phenomenon has meant that international organizations such as the World Trade Organization, the World Bank and the International Monetary Fund IMF have increased their influence on the capacity of states to implement human rights obligations. The same can be said of a number of actors in deregulated international financial markets, such as hedge funds or private equity funds.
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Put in other words, a range of policy areas that used to be left to domestic decisions alone, and have consequences on how human rights commitments are met, are increasingly being permeated by policies and rules defined at the international level, or in collegial processes of which the national state is only one part trade, intellectual property, finance.
Internationally-organized business actors have also growing weight on the domestic sphere, either directly or indirectly.
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This weight strongly intersects with the capacity of this sector to lobby on the policies and rules defined at international level. Nonetheless, these organizations and actors are not themselves parties to the human rights instruments whose development and adoption constitute the result of long struggles by the human rights movement.
Ultimately, of course, international organizations are made of States parties to human rights instruments. Likewise, private sector actors do not function in a vacuum but are, arguably, subject to the jurisdiction of States parties to such instruments. But the fact remains that the chain of accountability in the case of these non-state actors is, to say the least, less straightforward just at a time when their influence has increased.
Therefore, with their growing importance, organizations and bodies with jurisdictions on trade, finance and investment, as well as the policies they issue, have gained more relevance in struggles to promote and respect ESCRs. The efforts to make economic policy- and rule-making accountable to the human rights framework face important challenges. The first challenge is that posed by economic globalization.
This is the one that logically emerges when pursuing rights-based claims which by definition represent the other side of an obligation in an increasingly globalized environment where the main economic actors are neither parties to, nor do they feel bound by, the existing human rights instruments that create such obligations. The removal of decision-making on economic policies from the national level also makes it more difficult to pursue accountability. It allows for national and supranational instances to start a "blaming game" whereby each of them alleges the other is responsible for a specific outcome, blurring the responsibility for upholding the right in question.
The difficulties to access information also are a challenge, and this challenge is two-fold. Instead of referring to a national government only, cross-border economic policy issues by definition affect the behavior and policies of more than one party. These parties may be the negotiating parties to a trade agreement or to a loan being drawn either from another country, or from an international financial institution this financial institution having, in turn, also a broad membership collectively responsible for the decision. These parties may also be the home and host states in an investment project, or the donor and recipient country of a grant.
For citizens it is hard enough to gather information about a party that is not their own government. But globalization has also made it more difficult for them to gather information about what their own government is doing in international negotiations, even if outcomes of such negotiations will eventually bind the national and local legislators. Third, human rights demands on economic policy issues can be condescendingly dismissed by economic policy-makers as well-intentioned, but out of touch with the realities of limited resources. Economic policy practitioners who may entirely agree with those demands oftentimes wonder whether they offer any useful guidance in dealing with intricate policy questions such as: what is the optimal degree of openness in a particular industry, or where to obtain the resources to fulfill immediate and conflicting needs of different social groups.
The challenge imposed by the limitation of resources is one that human rights advocates, whose demands oftentimes do not seem to leave room for the trade-offs that are a necessary ingredient of economics, have yet to answer credibly. Where attempts to develop such answers have been made, they are not widely known, lack a solid base on binding human rights standards or are vulnerable to the claim of not being based on sound economics.
Four, the legal human rights framework is also rather mute when seeking guidance on detailed policy prescriptions. Come to think of it, this is neither a flaw, nor should it be surprising. If one accepts the sensible notion that economic and development models should be tailored country-by-country, and even region-by-region, as a product of unique economic, political and social realities, trying to come up with universal best policies is an exercise doomed to failure.
Just like the much-criticized structural adjustment programs, similar exercises to establish one-size-fits-all models will attract warranted criticism. But this lack of precise prescriptions, while a strength, may also mean that unscrupulous -or simply misguided-policy-makers can appropriate human rights language to justify ill-guided or questionable economic policies.
Five, the lack of widespread expertise about trade and financial policies and the policy formation process around them among human rights groups represents a hurdle to their operations to try to have an impact on economic policies and practices. This lack of a solid understanding of trade, finance and investment and their relative relevance to specific ESCR objectives hampers the capacity and confidence for human rights advocates to design strategies and propose actions based on evaluations of where a planned advocacy intervention may be useful 4. Given this backdrop, there is a temptation to confine human rights advocacy to the "micro" level, as it is in the limited context of a specific project or micro-economy that the impacts of a specific policy or project can be more easily identified and articulated.
Yet, this approach cannot come to grips with macroeconomic environments that may be responsible for the need, feasibility or existence of alternatives to the same micro and specific projects. Focusing on the micro impacts amounts, in a sense, to focusing on the symptoms, without tackling primary causes.
In addition, the "micro" focus is vulnerable to the claim of lack of rigor in not accounting for trade-offs among rights of different regions or portions of the population. For instance, in a dam project that will require removing a community from its habitat it is easy to identify the affected rights of the community but, from a larger perspective, the government doing so may argue it is simply trying to reduce poverty so other portions of the population can have access to education, health, electricity or even water.
The questions of where the line should be drawn and what is an acceptable trade-off cannot be answered in the abstract, and will require a case-by-case examination. The human rights framework does offer a framework for policy choices. But this framework is more difficult to utilize, its application requiring expertise on trade and financial policies, and its conclusions will not be as absolute and straightforward as the ones that can emerge from the micro approach. Six, a growing number of decisions that would require a delicate balance between principles of international human rights law and the imperatives of running a good economic policy seem to be de facto or, in some cases, de iure subject to decisions by bodies with purely economic trade, investment, finance backgrounds and on the basis of considerations that exclude human rights.
This is the case, for instance, with disputes involving access to services that have been submitted to investment arbitration tribunals 5.
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At the same time, civil society organizations seem to find their highest level of comfort focusing on norm-setting and development by human rights bodies and mechanisms. This observation is not meant to, in any way, diminish the importance of developing standards. Yet, it is clear that international financial institutions, or the branches of government engaged in negotiations on trade agreements, pay little attention to such norms and standards, and consider them, in the best case, of an advisory nature.
This is certainly compounded by the enforcement structure. But these interpretations are binding upon the primary obligation-holders, this is, states. Tenable arguments have been made to justify the applicability of the statements by this body to non-state actors such as international organizations and private sector entities. At the end of the day, however, what matters is whether a tribunal exists to ventilate the claim.
In the case of the CESCR, besides the national level jurisdiction, such tribunals are usually not available. As a result, human rights advocates oftentimes find that, in order to have an impact on economic policy discussions and negotiations, they are forced to contest them at a disadvantage, in institutions for which human rights are, if anything, an ancillary consideration of rather discretionary application.
There are supporters of the view that bodies with economic jurisdictions, if properly staffed, might be more open to applying human rights law. Building the human rights education and expertise of such bodies should certainly be considered, as a pragmatic alternative. But the notion that changes in staffing can overcome the cultural and structural difficulties for bodies primarily oriented to economic law enforcement to give a fair hearing to human rights claims, or even admit them on a consistent basis, rests on thin grounds.
This is because adjudication in such bodies takes place in the context of a primary body of law oriented to open markets for international transactions, as is the WTO law, or international investments. Moreover, the tool of building precedents before judicial tribunals and developing jurisprudence and principles on the interpretation of rights via strategic litigation is, as far as economic law- and policy-making bodies are concerned, not available.
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Investment arbitral tribunals, unlike courts, are simply not bound by precedent, nor are their proceedings-in most cases-publicly available. This means human rights advocates are in the Sisyphean position of having to fight every case as if it were the first, in very unfavorable conditions, an endeavour for which the human rights community simply does not have enough resources.
Reform of the institutional machinery to direct the processes for economic policy decision-making towards the consideration of human rights matters would be of benefit to the whole human rights community.
Yet, there is no concerted and collective strategy by the community to carry systematic advocacy on the reforms of these institutional processes or build tactical alliances with the groups that are engaged in such reforms. Seven, it is very difficult to identify a specific contribution of the human rights movement to changes and reforms.
When it happens, it is more often a result of having joined efforts with a large number of non-human-rights based groups in an effort negatively formulated, such as "remove investment rules from the WTO", or "remove the influence of the IMF in a specific country". This is, indeed, good, and should not be minimized. To the extent that these efforts free space for rule- or policy-making at the national level that could be more in sync with the human rights obligations of the specific country, this can be considered progress. But less often is it possible to identify a positively formulated human rights message that states what the specific policy alternative should be.
For instance, once the states are free to articulate an investment policy, what should these policies be in order to better foster the achievement of ESCRs? Or, once a country gains policy space vis-a-vis a previously-constraining IMF program, what does a human rights-based macroeconomic policy call for? These numerous challenges have not prevented the emergence of a rich response from the human rights community in terms of strategies to promote accountability of economic policies to human rights.
This section offers examples of activities and strategies. For the sake of presentation the exercise, rather than a long descriptive list, offers a classification by type of strategies, including one or two representative examples for each of them 7. It should be kept in mind that the classification is for analytical purposes only. In reality, it would be hard to find an organization that focuses on only one of these strategies. Most of them focus on more than one strategy at a time and, in fact, try to make different strategies work together. Awareness-building amongst grassroots, other NGOs, government officials and broader public consists of activities devoted to raising awareness in the public or in specific communities by holding of talks, workshops, preparation and distribution of materials, press campaigns, arts performances and other public events.
Likewise, 3D builds awareness amongst trade, development and human rights organizations to ensure that trade rules are developed and applied in ways that promote an equitable economy. Capacity-building and public mobilization consists of activities devoted to organizing and mobilizing affected groups and NGOs. Likewise, members of the Habitat International Coalition in Mexico and other countries have carried out particular work, and capacity-building is a traditional strength of the Secretariat of the Asian Forum for Human Rights and Development FORUM-Asia headquartered in Bangkok with regards to trade and human rights.
The Land Center for Human Rights, for their part, work to build the capacity of small-scale farmers to analyze trade and investment policies for their impacts on their communities in Egypt.
Influencing decisions, policy- and rule-making by national governments seeks to change the behavior of a specific government with regards to trade, finance or investment policies. Banks MDBs and their offices in Mexico. Part of this work is to establish consultation mechanisms, particularly with the Mexican government, on the impacts of trade and economic policies on social development, sustainable development and human rights in the country.
The Mexican NGO FUNDAR, for their part, engages in the government fiscal policy-making process by monitoring and analyzing national budget negotiations from a human rights and gender perspective. Influencing decisions, policy- and rule-making in international fora and institutions consists of activities that aim to influence the behavior of an international institution involved in economic policy such as the International Monetary Fund, the WTO or the World Bank.
Halifax initiative and others work to ensure that human rights impact assessments become part of the procedures of such institutions for screening financing projects that they will fund. The Bretton Woods Project advocates within the World Bank so that it acknowledge its obligations by integrating a human rights approach into its own policies and programmes with transparency and public participation.
Norm-development at the national level consists of activities devoted to create national norms that may help challenge certain trade, investment or finance activities. The work of the Egyptian Initiative for Personal Rights EIPR on trade is connected to their Health and Human Rights program, mainly focusing on intellectual property rights in trade agreements and the affordability and availability of medicines.
In this, they carry out lobbying within the European Union and the UN, particularly with the former Commission on Human Rights, UNGASS, and other mechanisms, which focuses on incorporating stronger human rights language on health and trade issues, access to medical treatment, etc. Norm-development at international level consists of activities devoted to expanding and refining international human rights law, both through hard and soft norms, as it relates to trade, finance and investment. Jurisprudence by judicial and quasi-judicial mechanisms at the national level directed at creating national jurisprudence referred to the interpretation and implementation of trade and investment rules, or loan conditions.
The Human Rights Law Network in India has challenged the intellectual property rights regime as related to access to medicines in the nation's Supreme Court, successfully advocating for a court order forcing the government to guarantee that all essential drugs be available and affordable for all people living below the poverty line.
Jurisprudence by judicial and quasi-judicial mechanisms, as well as human rights supervisory and monitoring bodies at international level directed at establishing international jurisprudence referred to the interpretation and implementation of trade or investment rules, or loan conditions. Project-level Human Rights impact assessments directed at designing methodologies and actually carrying out human rights impact assessments of trade, finance and investment policies or rules. When Human Rights Impact Assessments HRIAs are not yet official exercises nor have endorsement by a government, they can still be a tool for the qualitative value of the assessment, and to empower a community affected by a project by facilitating a vehicle for them to voice their concerns.
Improving access to information directed at expanding the access to information on government activity regarding trade, finance and investment. While access to information is not directly recognized in the International Covenant on Economic, Social and Cultural Rights, it is clearly instrumental and the authoritative comments by the CESCR so recognize.
Access to information has proved essential to the timeliness and well-targeting of any substantive advocacy and mobilization for ESCRs in trade, finance and investment -this is particularly so given the degree of opacity that characterizes activity in this field. In spite of the enormous difficulties, and taking into account the inevitably gradual pace of progress that can be expected in the ambitious goal of achieving human rights-accountable trade, investment and finance regimes, the last few years have seen some successes that should be noted as steps towards this direction:. In turn, national bodies in charge of protecting health goals or the right to health, and which otherwise would have probably lacked the clout to influence these decisions, seized on those precedents to maximize their impact, such as in Peru 10 and Thailand True, the Doha Declaration on TRIPS and public health gives countries the space to derogate from trade rules when required to uphold public health.
Arguably, it should have been the other way round: countries should have been required to derogate from trade rules to protect public health. So, from a human rights perspective this is only a step in the right direction, but a step nonetheless. IFC's human rights impact assessments : After several years where environmental and social - but not human rights per se- were the norm in impact assessments, the International Finance Corporation IFC last year developed a guiding manual for human rights impact assessments. The document has been heavily influenced by transnational corporations and some criticize it as a public relations exercise.
But it is the first time that in one of the institutions of the World Bank group the notion of a human rights impact assessment is accepted. Before, human rights issues were condemned to being on the fringes and approached on a selective basis in assessments of environmental or social impacts. Not the least of these is that they are a diluted, watered down version of the human rights framework, only focusing on specific targets.
Their blindness to the economic policies needed to achieve them, on which they are sort of neutral, is also a weak point. But, from the perspective of ESCRs, it is worth noting that they embody for the first time hard numbers accepted universally as a target for all countries. Given the perceived elusiveness of concepts usually associated to ESCRs, such as "progressive realization" and "minimum core," and the reluctance of states to take steps to accept numerical targets, the MDGs, even if only doing this for some dimensions of some rights, should be taken as an element of progress.
At the very least, they set a precedent to build upon demonstrating that the mobilization of political will is critical in pulling ahead progress in developing standards for ESCRs rather than expecting the process to run the other way around or offering the lack of standards as an excuse for not mobilizing political will. MDGs, by containing a dimension that refers to the international environment, shed light on the fact that progress in ESCRs does not only rest on national governments, but also on the other members of the international community, including international organizations For Who?
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