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ADAM McBETH and DAVID KINLEY[*] and examine the human rights implications of the ‘partnerships for sustainable development’ emerging from the World Summit on Sustainable Development in Johannesburg.
From a summit widely regarded as a failure or a wasted opportunity, one outcome that received little attention was the launch of ‘partnerships for sustainable development’. The Johannesburg World Summit on Sustainable Development in September 2002 saw the triumphant launch of more than 220 partnerships to work towards a plethora of sustainable development goals, from medical research to refurbishing bicycles for Africa.
The emphasis on partnerships as a pathway to sustainable development is a laudable attempt to include non-state actors in the furtherance of human rights and environmental protection. A typical project might bring together two or more United Nations agencies, government departments in affected countries, non-government organisations (such as charities or trade unions) and private corporations.
As private entities, like corporations, undertake such basic human rights and sustainable development initiatives, so the matrix of human rights responsibility expands. The danger for the international community is the possibility that national governments will use this newly emerging private sector responsibility as an opportunity to abdicate their own fundamental duty to protect and promote human rights. Indeed, just this concern was in the minds of the Johannesburg summit organisers when they declared, ‘the partnerships are meant to supplement and not to supplant actions and commitments by governments’.[1] To be sure, the character of the state’s responsibility for human rights may have changed, but it is in no way diminished by increased private sector involvement in areas affecting human rights. If anything, the state’s level of responsibility has grown.
The idea behind the Johannesburg partnerships is to get interested entities to work together on concrete projects to further the goals of sustainable development set down at the Rio Earth Summit a decade ago, rather than continuing to rely on national governments or single non-government organisations or UN agencies going it alone with their own programs. To this end, the partnerships possess certain characteristics: they are publicly documented; they set measurable performance goals; and they allow other interested parties to join existing projects, thereby avoiding duplication and waste of aid funds, and enable others to identify areas that still need work. Above all, the partnerships are intended to be ‘owned and run by the partners themselves’,[2] in that they are voluntary and are governed, reviewed and evaluated by the project participants.
That much said, corporate self-regulation or voluntary compliance with human rights obligations poses obvious problems. All large corporations worth their salt now have their own codes of conduct, which vary greatly in content and credibility and can become valuable public relations tools. Aside from bringing claims for false representation, such as that currently pending against Nike in the United States,[3] there is no way of enforcing these statements of good corporate citizenship.
This brings us to the vital role of the state. Under international law, it is the state that must uphold and promote the human rights of those under its jurisdiction. This ultimate responsibility does not change with the emergence of voluntary initiatives from non-state actors, including corporations. Indeed, non-state actors are not explicitly recognised at all in the major international human rights conventions and can only be said to have legal human rights obligations by implication. The danger of the trend towards non-government action on human rights and the environment, of which the Johannesburg partnerships are the latest example, is that there is no legal mechanism for entities other than the state to be held accountable — either for committing human rights abuses or for failing the obligations to protect and promote human rights.
States, by contrast, can enforce the human rights of vulnerable people and impose human rights standards on others, including individuals, corporations and government agencies, through legislation. In their courts, states can provide avenues of redress through criminal proceedings, civil lawsuits and review of government actions.
The ability of the state to promote and fulfil human rights, particularly so-called social and economic rights such as the rights to food, work, health and education, should also be considered here. Under international law, a state’s obligation to promote human rights is just as real as its obligation to protect its people from abuse.
Through the trend of the last 20 years or so to transfer service delivery from the public to the private sector, the state’s ability to protect and promote the human rights affected by those services has become somewhat blurred. Depending on the content of the relevant contracts, it is clearly arguable that the privatisation or contracting out of services in some cases may curtail a state’s ability to meet its two-pronged obligations in relation to economic and social rights, namely the duty to take steps for the progressive realisation of those rights to the maximum of a state’s available resources and the duty to guarantee those rights without discrimination.
Contracts with private providers can make it difficult for the state to intervene, for example, to ensure the humane treatment of prisoners in a privately run prison. However, it is essential to recognise that contractual difficulties will not absolve the state of its international human rights obligations. Governments, therefore, must bear their human rights obligations in mind when establishing the new lines of responsibility with any private service provider.
Even more problematic than privatised prisons are issues of access and affordability of essential services, such as access to water or health services, where a private provider will obviously be concerned with maximising profit. This is particularly so in areas where service provision might not be financially viable, such as rural areas or areas of low socio- economic status. Here, once again, the state must give effect to its human rights responsibilities when the framework for privatisation is designed. The state cannot contract out of its responsibility to protect and promote human rights.
As a matter of fact, performance standards designed to reflect human rights standards are often included in contracts and in some cases supported by legislation to enforce those standards. In addition to these available domestic safeguards, it is generally accepted that private entities have a duty under international law not to commit or allow human rights abuses within their sphere of influence. As that sphere increasingly encroaches on the state’s traditional areas of responsibility, for which the state had strong, positive international obligations beyond mere non-abuse, the question arises as to how those duties should be allocated in an increasingly privatised world.
As far as the state is concerned, the answer must be that contracting out of service provision does not equate to contracting out of human rights obligations affected by the provision of that service. The ultimate duty to ensure the protection and fulfilment of human rights remains the duty of the state. In other words, the state can privatise service provision, but it cannot privatise responsibility for human rights.
But what about the private service providers? With control over areas so vital to the realisation of human rights, do they pick up some of the state’s positive duties to ensure access to affordable health care, clean and efficient water supply, or whatever the relevant right may be?
Modern international law, largely designed in the middle of the last century when the influence and relevance of the nation-state was at its peak, makes no allowance for the enforcement of human rights obligations of private entities, with the exception of the prosecution of individuals for crimes against humanity. As the law presently stands, then, redress can only be had through domestic courts, or by arguing that a state breached its obligations in failing to ensure that the private entity sufficiently respected human rights. Where domestic legal avenues are weak or unavailable, including by way of express or implied contractual exclusions, the result can be an almost complete lack of accountability for human rights abuses.
What is particularly significant about all of this is that the issue of private sector involvement in areas affecting human rights is set to intensify in the near future. The current round of WTO trade negotiations includes talks potentially leading to further privatisation of the services sector under the auspices of the General Agreement on Trade in Services (GATS). While no government will be forced to privatise in any particular service sector (although some argue that coercion of developing countries may come into play), the potential for a major international wave of privatisation is real. The negotiations have the potential to further undermine human rights accountability and, conversely, present an opportunity for reform to counter that trend and introduce stronger human rights mechanisms.
In the process of amending GATS, as part of wider ongoing WTO reform, there must be consideration of making private service providers directly responsible for the protection and fulfilment of human rights within the relevant area of operation. At the same time, such amendments must confirm that the principal responsibility for implementing human rights remains with the state and should make it absolutely clear that nothing in the WTO agreements or in any government contract must impede the state in fulfilling its international human rights obligations.
In the end, two challenges face the international community. On the one hand, the expanding private sector responsibility for human rights must be made legally enforceable, or at least better regulated. On the other hand, the underlying (and expanding) responsibility of states must be reinforced, perhaps with a new supervisory focus in relation to private entities. In its enthusiasm to turn its attention to the human rights responsibility of corporations and other non-state actors, the international community must not overlook the responsibility of states, for to do so is to overlook those people whose human rights are vulnerable to abuse.
We might have, therefore, the opportunity to devise the means by which to hold corporations to account in respect of their duty to protect human rights. But it will be an opportunity lost if, at the same time, we allow states to be in dereliction of their very same duty.
[*] Professor David Kinley is the Director of the Castan Centre for Human Rights Law and teaches law at Monash University.
Adam McBeth is a PhD candidate in law at Monash University and is the principal research associate to the Castan Centre’s ‘Corporations and Human Rights’ project.
[1] World Summit for Sustainable Development, Frequently Asked Questions on Type 2 Outcomes of WSSD, 1 May 2002, para 3.
[2] World Summit for Sustainable Development, above, ref 1, para 5.
[3] Kasky v Nike, 24 Cal 4th 939 (2002), judgment of the Supreme Court of California allowing the plaintiff’s appeal against dismissal of the complaint. The case is ongoing.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/102.html