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Human rights and the shrinking state: the new footprint of state responsibility: draft.

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CASTAN CENTRE FOR HUMAN RIGHTS LAW "Human Rights and the Shrinking State: The New Footprint of State Responsibility" David Kinley


"whoever mistreats a citizen indirectly offends the State, which must protect that citizen" Emer de Vattel (1758)1 INTRODUCTION At international law, it is the State that very largely bears the responsibility for the protection of human rights under the relevant, various human rights instruments. The State also bears the brunt of the responsibility for protection at the level of domestic law. It is from these truisms that I draw for the dual foundations of this article. The first of these is the inherent contradiction that emanates from the above quotation of Vattel. For it is the State that is so often, or at least so often seen to be, the vehicle for mistreatment of the citizen. Thus, Rick Lawson's much more recent claim that "human rights are a shield against the almighty State, but it takes a sturdy State to keep the shield in position",2 extrapolates the Vattel aphorism into a telling paradox. The State, in other words, has a duty to protect others' rights against its use of power that infringes them. This cleft in the role of the state is one broad concern of this essay. The second foundational concern is the fact that at international law, increasingly, and at domestic law, as it has been for much longer, the responsibilities of non-state actors for the protection and promotion of human rights are more apparent and demanding.3 Both the scope of such responsibilities has been expanded - to encompass more and more various non-state actors (but especially corporations), and the weight of responsibilities increased - to be more directly imposed on such non-state (especially corporations). The two basal factors are related, of course, in the sense that the elements of the second might be seen in certain circumstances to be an answer to the dilemma of the first. And the circumstance in which this neat solution might so readily apply is where the State, specifically the power of the State, is shrinking. Thus - to continue this line of argument - as the roles and responsibilities of the State to protect human rights shrink in correspondence to the shrinkage of the dimensions of the modern State, so the slack in human rights protection is (or ought to be) taken up by non-state actors. It is with the aim of constructing an argument to confound such views that I am concerned in this article. It is, therefore - to nail my colours to the mast, my contention that the State will and must be central to the protection of human rights, whatever the contrary pressure and arguments might be. The State may not be alone is shouldering such responsibility and the nature and scope of its duties may be changing, but it must and will remain central to the task. The guiding question in this essay, therefore, and the one to which these statements (this mast-nailing of colours) are an answer, is broadly: 'what is the new role of the modern, shrinking State in the promotion and protection of human rights?' The article proceeds by way of a determination of the factors that are driving the notion of the State's disaggregation, in terms both of its evidence in practice and the debate by which it is

buoyed. Each of the three drivers identified is then analyzed and from them, collectively, an argument constructed as to need, nature and future of the human rights responsibilities of states.

THE DRIVERS OF THE 'SHRINKING STATE' PHENOMENON XXXshrinking state/HRs responsibilities detailsxxx. There are three drivers of the contention that as the State contracts so there is a correlative shrinkage in its human rights responsibilities. 1. That, demonstrably, the role, activities, legitimacy and even the power of the State are indeed contracting; the State's footprint, therefore is shrinking. ['Shrinking State?'] 2. That as the justification and potential grows for responsibilities for human rights protection to be placed on non-state actors - especially corporations - so correspondingly, both the need and place for State responsibility will diminish. ['Corporatization of Human Rights?'] 3. That the increasing instance of global regulation in all areas of modern social existence, but especially in the field of human rights observance, is replacing State authority and regulation. ['Global governance?'] Before addressing each of these in turn, there are a least two criticisms that cut across each of them. They are in fact two fallacies. The first is that to varying degrees each driver seems to be based on the premise that somehow the pool of responsibility for human rights protection is a zero-sum game; that where responsibility is increased or decreased at one site, so, correspondingly it is lost or gained at another. The pool of responsibility, in other words, is set; its volume never changes no matter what shifts there are in its composition. It is difficult to see how such a hermetic view could ever be sustained. Surely the reality of the position is akin to Neil MacCormick's unforgettable admonishing metaphor regarding shifting sovereignty within the European Union - namely, that we should think of it as of virginity: in that at least in some circumstances it can be lost to the general satisfaction of all involved without anyone having to gain it.4 The dimensions of responsibility for human rights protection are simply not pre-determined or inelastic. The second apparently false premise comprises two parts. It may be held either that it is impossible (or at least impracticable) for there to be more than one site of responsibility for the protection of any given human right or rights at any one time; or, what amounts to much the same thing, that the mooted additional duty-bearers are fundamentally ill-suited for the job. Again it is hard to see how or why either of these should be so. Certainly, the question of whether there can be a right without a corresponding duty is important and relevant. It exercises the minds of and yields different answers from philosophers like Hohfeld,5 and all who have followed and borrowed from him, as well as human rights policy analysts6 and commentators.7 But this is ultimately a different question. The essential object of human rights protection is to have human rights protected; the fact that the duty (once articulated) may be shared is not itself a problem - even if the demarcation of each other's share of the burden is likely to be so. The fact of burden-sharing is both presumed and practiced. It is, for example, presumed in the exhortation in the Universal Declaration of Human Rights that human rights be promoted, secured and observed by "every individual and every organ of society".8 It is practiced in the very fact that many, if not most, domestic human rights protecting laws are of general application, their obligations being imposed on all without distinction as to public or private form. I broach now each of the three drivers individually.

1. SHRINKING STATE? Like all big concepts 'the State' defies precise definition; this is true equally of its alleged shrinkage. Whether or not there is occurring a disestablishment of the State depends very much on the how clear cut one can be in answering a matrix of bipolar questions: what is a public activity and what is private? Is it sufficient for the State to control or regulate the delivery of a

service, or must it actually do the delivering? Is there a difference between essential (or core) services and non-essential services? Is the public interest best served directly or indirectly by state intervention? Certainly, the modern state, both in the developed and developing world, is changing form. Erstwhile public services are increasingly delivered by private hands by way of an array of mechanisms including privatization, corporatization, outsourcing and sub-contracting.9 Though on the face of it this might indicate a 'shrinking state', the key question seems to be whether there is a shift also in power. Is public power now in private hands? The answer is both yes and no. For to the extent to which the rise in the regulatory role of the State can be determined (and it certainly has risen), it can be said that public power has not entirely left public hands it is just mediated differently. As Feigenbaum, Henig & Hamnett maintain in their comparative study of the 'shrinking State': "in shifting responsibilities from government to market, privatization alters the institutional framework through which citizens, companies, and organizations articulate, mediate and promote their individual and shared interests".10 The result is then a reconfiguration rather than a repudiation of the State.11 Such a charaterization of the phenomenon creates the space for arguing that the State's "important responsibilities, [its] legitimate role and [its] capacity to act authoritatively on behalf of the public good" are preserved.12 In terms of the State's responsibility for human rights protection there is commensurate shift in role. Thus, as the level at which the organs of the State impact directly on an individual's daily life is reduced, so there is less scope either for direct infringement or fulfilment of human rights by the State. Equally, however, as the regulatory role of the State expands, so the State's proper concern for human rights protection is at least maintained, if not increased. For among the concerns of the reconfigured regulatory State, the demand for human rights accountability is simply stabled alongside demands for financial, managerial, political and wider social accountability. The potential increase in such State responsibility emanates from the fact that the parameters of the State's human rights responsibility are drawn wider than merely the State ensuring that its own organs do not transgress. As I expand upon below, international human rights law typically charges the State with the responsibility to ensure that it polices all human rights transgressions within its jurisdiction, no matter the legal character of the perpetrator. The responsibility therefore, covers both direct State action and non-State action, whether the latter be a wholly private or quasi-public entity. The fact that the State may now do more policy-making and policing than direct service provision in respect of erstwhile typically public services, may indeed better equip the State to better fulfil this role through experience and design. Certainly, if accountability is to be achieved on all relevant fronts, including human rights, it is essential that two issues be addressed. First, there must be a balance struck between the competing demands of private commerce and public interest. Good corporate governance comprises more than just disassociated commercial enterprise; it must include also concerns of social responsibility.13 Of course, the precise boundaries of these concepts are not easily defined, nor is the appropriate balance contentedly struck for any length of time. But as we see in the following section that should not and indeed has not stopped the worlds of corporate, municipal and global governance from feeling compelled to try. Secondly, there must be adequate flows of information between service-provider and overseer.14 This requires that there be a legal regime that marks out the nature as well as dimensions of the State's increased regulatory role. Typically, such a regime must include one or more of the various legal forms: contractual obligations and expectations; public law remedies (ie judicial review), statutory body oversight, or corporate law control.15

2. CORPORATIZATION OF HUMAN RIGHTS? There now exists a substantial body of support for the notion that corporations do have responsibilities for protection of human rights. The composition of support is indeed eclectic,

ranging from international regulatory regimes, through governments to local communities, non-government organizations, courts, commentators and corporations themselves. Though painting with a broad brush, the words of UN High Commissioner for Human Rights Mary Robinson in the Preface to her ongoing 'Business and Human Rights' initiative are accepted by many across this spectrum: "The issue of human rights is central to good corporate citizenship and to a healthy bottom line. Many companies find strength in their human rights records; others suffer the consequences of ignoring this vital part of corporate life. Today, human rights is a key performance indicator for corporations all over the world."16 To be sure, such sentiments throw up tough questions to do with the components of the profit motive; the legitimacy of human rights conditionalities (XXX HRQ 2001 Development & HRsXX) and the practicality of legal control. In terms, in particular, of a world of international law still dominated by a statist perspective of international relations, it is hard to see a clear path towards the authoritative and effective legal regulation of the human rights responsibilities of corporations ... see Weissbrodt Guidelines XXXX That said, there is no doubt that the increasing focus on corporations as potential duty-bearers of human rights protection from all quarters has fuelled - even if sometimes unwittingly - the idea that making corporations accountable in this respect will, in some meaningful way, lessen the burden placed on States to protect and promote human rights. ... There is, in other words, an association being made between what it is that corporations do to endanger human rights and what it is that States must do to protect human rights. Such that if corporations can be made more directly liable or responsible, then a significant task in State's current job description can be removed. This is a falsehood. For in so far as this movement towards human rights corporatization has articulated who or what will establish and police the more direct accountability of corporations, it appears to rely on either the creation of direct liability under international law or voluntary corporate compliance. There have, in fact, been conspicuous developments in the international arena (if not yet in international law)17 and today no self-respecting multinational corporation does not have its own code of conduct and/or a statement pledging support for the UDHR, as all are keen to develop a reputation for social responsibility from which (as Robinson says) they can draw strength, while many more seek to do so.18 However, the reality is that the most significant legal moves, even if patchy, have been those made by States and State organs. 19 There exists an already significant body of legislation and case law in all developed and many developing countries regarding corporations and certain domestic human rights issues - for example, covering labour rights, anti-discrimination, workplace health and safety, environmental protection and privacy.20 The sufficiency of these laws is of course always open to question, but the fact that they exist cannot be overlooked. The tendency to pass them by arises out of the current intent focus on the widening scope for imposing extraterritorial limitations on corporate activities, especially in developing countries. For example, recent concerted, but ultimately thwarted efforts, have been made in both the Australian and American federal legislatures to enact legislation binding corporate enterprises in respect of broad labour and human rights standards in their activities overseas.21 In the common law world, the old jurisdictional dam wall of forum non conveniens has been breached by a series of cases in Australian, American and British courts, where the concerns of which forum offers the prospect of the most just result have prevailed over the niceties of jurisdictional boundary maintenance. Thereby, those who seek to sue corporations for human rights right violations overseas have now the opportunity to utilise the potentially more exacting processes and retributive remedies of the home courts of many of those very corporations.22 ... xxxdetailsxxxxx In the United States, the revivification of the Alien Torts Claims Act 1789 (ACTA) has opened up the prospect of American courts hearing cases brought against corporations for alleged

breaches of the 'laws of nations', including human rights violations.23 Though as yet no case has been decided on its merits against a defendant corporation, the list of big corporate names being hauled before the courts in full public glare is growing - for example, Coca-Cola (in Columbia), and, perhaps unsurprisingly given frontier nature of their industry, a swathe of mining and oil companies: Unocal (in Burma), Shell (in Nigeria), Chevron (in Nigeria), Freeport-McMoran (in Indonesia), Texaco (in Ecuador), and Rio Tinto (in PNG).24 There is a high-level, unwanted publicity factor associated with these cases, which no doubt has fuelled the acceleration of ACTA litigation in the last few years. Equally significantly, it appears also to have prompted corporations to demand an appropriate level of due diligence on the part of their legal advisers to inform them of the potential for such dangerous litigation in respect of current or future activities of the enterprise. All of this does indeed show the potential for holding a corporation legally liable for those of its actions that infringe human rights, but crucially, it is through apparatus constructed and operated by the state - namely, domestic courts.25 It is precisely this sort of observation that supports the argument that whilst it may now be well established in international law that individuals have human rights, it is only at the level of State law that effective remedies are available for their breach.26 Thus, Mathew Craven maintains a distinction between rights enforcement at the international and domestic levels. "At the international level, the focus is the degree to which the State has acted in conformity with its obligation... . At the domestic level, however, judicial remedies focus upon the enforcement of existing legislative or administrative measures taken with regard to the economic and social climate in the State concerned. An insistence on judicial remedies at the domestic level is merely to ensure that the measures taken towards the full realization of the rights are not purely superfluous and vacuous".27 It is also the basis upon which Oscar Schachter, for example, tempers his analysis on the decline of the nation-state by stating that despite the inroads made on both the concept and practice of the primal role of the State in international relations, including the implementation of international human rights laws, the State's role is nonetheless still primal.28

Whether or not the power of nations will crumble in the face of wave upon wave of globalization, or greater inter-connectedness, in respect of free trade and other economic blocs, military alliances, financial super-coordination, environmental common reliance, or human rights universality is a tremendously moot point.29 Even if it does and, at the same time, the power of multinational corporations (as well as other global players) increases, that will simply offer up additional sites for building effective protection of human rights. There will, in other words, be an adding to the aggregate responsibility for human rights protection, rather than merely shifting its load. On this analysis, the social-contractarian responsibilities of States, including human rights protection, are not abrogated, but rather bolstered by creation of parallel responsibilities in the private sphere. Human rights support, therefore, is a case where "too much is barely enough!"30 Having argued in this section for the need not to allow corporate responsibility to substitute that of the State, I want to stress that this cannot be read so as to allow non-state actors - especially corporations - somehow to eschew their growing role as duty-bearers of human rights protection. On this point, the economist David Henderson, for example, argues against corporate social responsibility as being not only misguided, but also illegitimate.31 Henderson's thesis, however, does not stand up to scrutiny. For example, he bases his allegation of the illegitimacy of corporate social responsibility on the circular sophistry that such sentiment is anti-business and that anything anti-business is therefore illegitimate. Further, his account seems to have entirely overlooked the elementary fact that the imposition of social responsibility restrictions on business's pursuit of profit is no different from the myriad restrictions already imposed in areas

such as employment practices, workplace safety, financial regularity, product safety, and environmental protection, not to say anything about corporate tax.32 More significant and timely a signal of the danger of overplaying the hand of the a corporate role in human rights protection within the context of global or regional regulation at the expense of State power and responsibility can be found in a number of recent disputes under the North America Free Trade Agreement (NAFTA). The foreign-investment protections in Chapter 11 of the NAFTA have opened up an unexpected avenue for corporate opportunism to take the dollar at the expense of a State's efforts to protect human rights. In a series of cases over the last 4 years or so both the US and Canada have been successfully sued by a foreign corporation from the other country claiming that their corporate assets, including expected future profits, have been improperly denied them by governmental action curtailing their ability to sell their products in that country. In the recent case of Methanex v US, for example, this provision has allowed the plaintiff Canadian company to sue the US for nearly US$1 billion over the State of California's prohibition of the use of a toxic chemical manufactured by Methanex that was contaminating the State's drinking water.33 XXSee ECHR Protocol 1 on property rights XXX When it comes down to it, therefore, corporations when so minded and with the eager assistance of enterprising lawyers, will just as likely transgress protect human rights as protect them (whether directly or indirectly, flagrantly or unwittingly) in their pursuit of profit. XXXfurther detailsXXX

3. GLOBAL GOVERNANCE? Global governance - as distinct from what David Kennedy calls the "fantasy" of global government34 - may be an ideal, but it is nonetheless earnestly striven for in practice through the plethora of multilateral alliances that mark out international relations today. In the particular terms of the objects of the global human rights movement, it can be said that they are at once both too limited and too broad. They are too limited because they tend to feed the habit of seeing the possibility of global governance in antiseptic legal rather than political terms;35 and too broad because what is sought (equality, liberty and distributive justice) is much more than any global regime of human rights protection alone can deliver.36 It is clear that the spread and instance of international regulatory regimes has expanded enormously over the last 50 years, now covering aid, trade and commerce, product and service standards, security, human rights, natural resources, intellectual property, telecommunications, transport, environmental protection and financial relations. And as such, it is beyond dispute that a frank acceptance of the effects of the forces of strategic economic advantage and political expediency on the direction of global movements must form part of global human rights thinking.37 It is certain also that this proliferation has brought with it changes in the cast of international actors and even the nature of their dramatic performance.38 States are still crucially involved in international norm-setting, but they are now less the architects and more the operatives. "The depth and density of rules promulgated by the intergovernmental organizations is increasing, and these organizations are becoming more assertive vis-à-vis individual sovereign states in rule-making and in implementation".39 The individual courts systems of states are also functioning less parochially and more "as parts of cooperative regulatory and enforcement webs".40 Symptomatically, even basic nomenclature has changed with the growing preference for the terms 'transnational' and 'supranational' - to denote interaction at global or regional levels that includes non-state actors as well as States - over 'international'.

But these features of globalization alone or together do not bring global governance. Alongside corporations international organizations are another key category of non-states actor in international affairs and like the role that corporations can play in human rights protection, that played by international bodies supplements rather than substitutes the role of states. The apparatus of national governments operate as essential journeymen to the human rights

aspirations of international and regional regimes. Not the least reason for this are the many self-preservation features that states consciously built into the main international human rights instruments. Article 2(7) of the UN Charter putatively quarantining domestic affairs from international intervention is a classic example of this phenomenon. But in terms of more day-to-day human rights protection there exists an even more significant set of broadly similar treaty obligations. Signatory States to human rights instruments are typically bound to ensure to all those within their jurisdiction the rights contained in the relevant instrument.41 Such an obligation entails not only that the State refrain from infringing rights by its own actions, but to uphold the protection of rights against abuses from other (non-state) actors as well. The potentially human rights-infringing actions of corporation, trades unions, universities, clubs and pubs and of course other individuals are therefore of concern to the State, as a matter of its obligations under international law. The State, in other words, may be interpreted as being indirectly responsible and therefore liable for the direct actions of private actors within its jurisdictional reach.42 Though perhaps new to corporations and the like, such state complicity has long been argued as flowing from the conscious maintenance of the pubic/private divide that limits the state's role in protecting women's rights.43 The Committee on the Elimination of Discrimination Against Women, for example, has stressed in respect of violence against women, that "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation".44 under the Furthermore, the matter has fundamental concern to the International Law Commission's ongoing project to codify the general principles of state responsibility XXX more XXX A more limited but still important adjunct to this phenomenon is the matter of whether a right to a remedy under article 2 of the ICCPR exists as a free-standing obligation on States or merely adjectival to an already demonstrated breach of another right in the Covenant. For, to the extent that it does (and that is a minority position in the jurisprudence of the Human Rights Committee),45 it imposes on States a specific obligation to provide human rights protection in the form of remedial mechanisms whether or not such mechanisms are utilized in any particular case. The beneficial impact of such a scheme, it might be argued, lies in the prophylactic effect it would have on at least some potential human rights transgressors. It is true that this whole area of jurisprudence is yet to be fully developed and it can be supposed that limits will have to be more surely set - the State cannot be held liable for every human rights violation by any person or body within its boundaries.46 Pliable legal constructs such as reasonableness, remoteness, forseeability, proportionality and perhaps above all, due diligence on the part of the State are, and will likely further, be employed by international human rights tribunals to carve out more or less acceptably predictable parameters of State liability.47 But the relatively few cases of this so-called 'privatization of human rights' phenomenon that have been decided, graphically illustrate the power and potential of this avenue of vicarious state liability.48 As the European Court of Human Rights pointedly put it in the Costello-Roberts case involving actions taken by a private school to discipline a pupil, a State cannot "absolve itself of responsibility by delegating its obligations to private bodies or individuals".49 What is more, this responsibility has been recognised as persisting "even if the power of states to make and implement policy is being eroded as the state slowly shrinks, [as] it retains an obligation to regulate others who may take on these functions".50

CONCLUDING COMMENTS: THE CONTEXT OF STATE SOVEREIGNTY The dimensions of the State's role in human rights protection are unavoidably tied up in the wider debate over the changing nature of state sovereignty. The notion of sovereignty may be, as Thomas Franck propounds, "historically ... a factor greatly overrated in international relations",51 but the debate nevertheless throws up the important questions of the basis of a

state's legitimacy and the scope of its authority, and the relationship of each of these with each other. There are well-supported arguments that legitimacy today must be drawn not only from the domestic level (inside and below), but also from the international level (outside and above). Legitimacy is, in other words, a question of what political, social, economic and moral claims the State is able to sustain before the international community as well as its own citizens. This is important because a State's authority to act, restrain or abstain as it wishes draws directly and heavily on the nature and extent of legitimacy that the State is able to secure.52 The formal establishment of institutionally backed human rights norms at the international level over the last 50 years has introduced a new and important factor into the sovereignty equation. The emergence of human rights in this way is surprising.53 It is surprising because the modern form that they take is essentially antithetical to the classic configurations of state sovereignty that require only the domestic or internal test of legitimacy to be satisfied. The feature of human rights today that so disturbs such orthodoxy is of course that of their international, avowedly universal, application through law; in other words the globalization of human rights. The prolific existence of human rights treaties and attendant legal norms, purport to make external demands on a State's claims to sovereignty. The "intricate network of laws governing a myriad of rights and duties that stretch across and beyond national boundaries" that is international law today, according to Thomas Franck, "pierce[s] the statist veil even while it sometimes pretends that nothing has changed".54 The challenge before those who ponder on and care about these things is to consider first, whether such demands are valid or not, and second whether they are in practice enforceable or not.55

This article's focus on the role of the State in protecting human rights places these issues into some perspective. For whilst I stress that the repositioning of the State in terms of its form and functions has not fundamentally altered its authority, its autonomy (such as it ever was) is now certainly compromised. States have not and cannot resist the expectations of globalized human rights precisely because it is against these expectations that their claims to legitimacy are increasingly judged. Clearly, the reconfigured suite of state powers, the mounting demands for regulation of public power in private hands, and the increasing depth and density of global regulatory institutions and networks impact on the efficacy of human rights protection. Together these drivers have not diminished the nature of the State's responsibility for human rights protection, rather merely the manner of its execution. The State may be, as Friedrich Nietzsche put it, "the coldest of all cold monsters".56 But against his and other's fervent wishes it is still with us. We appear to need it, as much as it needs us. And it is in this symbiosis that there lies not only the scope for the State's guardianship of human rights, but its continuing necessity. ( David Kinley BA (CNAA); MA (Sheffield); Ph.D (Cambridge). Professor of Law and Director of the Castan Centre for Human Rights Law, Monash University Law School. Formerly, Legal Specialist to Australian Law reform Commission, adviser to the Asia-Pacific Forum of National Human Rights Institutions and consultant to the Australian Human Rights and Equal Opportunity Commission. Thanks to... xxxx 1 Emer de Vattel, THE LAW OF NATIONS (Vol. II), para..11 (1758); published almost 250 years ago, and 40 years before the French Declaration des Droits de l'Homme et du Citoyen.. 2 Rick Lawson XXXX , in THE ROLE OF THE NATION-STATE IN THE 21ST CENTURY: HUMAN RIGHTS, INTERNATIONAL ORGANISATIONS AND FOREIGN POLICY, 91 (M Castermans-Holleman, F van Hoof & J Smith, eds., 1998). 3 Rise of individual in IL article XXXX 4 Neil MacCormick, Beyond the Nation State 56 MODERN LAW REVIEW 1,16 (1993) 5 xxxx....a right, to be a 'right', must have a 'jural opposite' duty ... WN Hohfeld FUNDAMENTAL LEGAL CONCEPTIONS, 35-40 (1964). 6 For example, the view that "....rights-holders have duties too..."; see International Council for

Human Rights Policy, Taking Duties Seriously (1999) XXX 7 Thus, for example, a right is no less a right if it yet awaits identification of the correlative duty-holder; see the UNDP's Human Development Report 2000, the authors of which include Amartya Sen, Philip Alston ... et al .XXXX 8 Preamble to the UDHR 9 xxxBottomley piece on corporatizationxxx 10 1999, 36. 11 ibid, 165. 12 ibid, 173 13 Which concerns lead to questions as to the respective responsibilities between the constitutional organs. One view, for example, is that the Executive ought to be concerned with management and Parliament with ethical propriety, to which Steve Bottomley rightly responds with the caution that "[t]his distinction is clearly consistent with the dictates of commercialisation, corporatisation and privitisation. Whether it is consistent with the requirements of effective public accountability is another matter"; Stephen Bottomley, Government Business Enterprises and Public Accountability, in PARLIAMENT THE VISION IN HINDSIGHT (G Lindell & R Bennett eds.; 2001) 383, 417. 14 Aronson, 1998, 58-63 15 BottomleyXXX 16 At; dated 28/1/00. The same view, expressed in much the same language, can be seen in the words of Lorne W Craner, US Assistant Secretary of State for the Bureau od Democracy, Human Rights and Labor: "[t]here is a growing awareness that corporate responsibility is good for business. ... Business leaders understand that practicing corporate responsibility affects their corporate reputation and brand image. Managers focused on the bottom line are aware that socially responsible investors and activist shareholders can impact the bottom line. ... [And], finally, many in the corporate community realize corporate responsibility can provide a competitive advantage;" Privatizing Human Rights: The Roles of Government, Civil Society and Corporation, speech delivered at BUSINESS FOR SOCIAL RESPONSIBILITY CONFERENCE, Seattle, Washington, 8 November 2001, accessed from

17 Even the following select list of the most prominent is long (and lengthening): the UN's Global Compact; the UN Sub-Commission on the Promotion and Protection of Human Rights, TNCs Working-Group Draft Human Rights Guidelines for Companies (2001); The OECD Guidelines for Multinational Enterprises (2000); UNCTAD Social Responsibility of Transnational Corporations (1999); The ILO's Guidelines (2000); World Business Council for Sustainable Government, Corporate Social Responsibility (1999); The Global Reporting Initiative; Social Accountability International's SA8000; the Institute of Social and Ethical AccountAbility's AA1000; Global Sullivan Principles; APEC Draft Code of Business Conduct XXXdetailsxxx. 18 The UN's Global Compact now has "several hundred" signatory companies world-wide: website XXX 19 Thus, whilst Craner might maintain that "the movement by corporations to adopt codes of conduct is one of the most significant changes in this field in the last ten years [for it] signals an acceptance ... of their willingness to respect human rights", he is, crucially, compelled to add "at least in principle"; supra, note XXX 20 XXXHRQ 2001; Eide et al; HRs in Oz Law. 21 referencesXXXXXX 22 Texas ILJ; Scott in Eide; Kinley ; ICLJ piece ('why oz is best')xxxx 23 In ACTA cases to date, the US courts have found the following to fall within this rubric: summary execution, disappearances, torture and cruel, inhuman and degrading treatment,

prolonged arbitrary detention, genocide and war crimes; (Harv. L. Rev. 2001, p.2037). 24 Harv.L.Rev, 2001, p.2025xxxx 25 It is in this manner of 'hands on' human rights corporatization, that one largely avoids the problems of what David Kennedy rightly laments as the effect of "shrivell[ing] the range of the politically contestable" that attends 'hands off' human rights corporatization; The Forgotten Politics of International Governance [2001] EUROPEAN HUMAN RIGHTS LAW REVIEW 117, 120. 26See Tushnet & Jackson, XXX COMPARATIVE CONSTITUTIONAL LAW 27 Mathew Craven, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT, 127 (1995). 28 pp.21-2 See also Forsythe XXXX, p.47 and Rosalyn Higgins, who notwithstanding her persuasive argument that international law now extends well beyond nation states, maintains that they remain "at the heart of the international legal system" (1994, p.39). 29 Schmidt, 1995 XXX 30 After Roy Slaven and HG Nelson: their radio program "catch cry", THIS SPORTNG LIFE, Triple J Radio, Australian Broadcasting Corporation. 31 Misguided Virtue; 2001 XXX 32 Misguided Virtue; 2001 XXX. Henderson's analytical rigour is also found wanting in his seemingly unquestioning acceptance as self-evident truths the contention, on the one hand, that the notion of as corporate social responsibility, together with component notion of sustainable development, are ill-defined and not universally agreed upon, and on the other, that they are necessarily incompatible with the notion of the market economy. Further still, strangely, a principal source of empirical evidence upon which he draws to support how misguided business is in its support for the notion of greater corporate social responsibility are the utterances of senior business executives themselves -evidently, in Henderson's view, they know what they do or say, or what is good for them. xxxxx 33 See Greider, 2001 34 Kennedy, 2001; EHRLR, Part II, p.264.XXXX It is certainly that, in the sense of unitary government. 35 On which point, see Philip Alston's withering criticisms of the dominance of lawyers and a legal mindset in human rights discussions at both national and international levels; Philip Alston, Economic and Social Rights, in HUMAN RIGHTS: AN AGENDA FOR THE NEXT CENTURY, 152-3 (American Society of International Law; 1994). 36 Such "global justice", as Richard Falk calls it, "would require extending the effective reach of human rights well beyond its minimal undertaking, which is to offer protection to individuals against various forms of oppressive government"; Richard Falk, HUMAN RIGHTS HORIZONS, 1-2 (2000). 37 Thus David Kennedy surmises that "[g]lobal governance may have simply moved from Washington to New York, from East Side to Wall Street, from Geneva or The Hague to Frankfurt, Hong Kong and London"; 2001, EHRLR, Part I, 119-20.XXX 38 See Higgins on the characterisation of such actors as 'participants' (rather than the more restrictive orthodox division between 'subjects' and 'objects' which she dismisses as an "intellectual prison"); 1994, pp.49-50. 39 Kingsbury, 1998, 611 40 Kingsbury, 1998, 611-12 41 See for example, CEDAW (art. 2(e)), CERD (art. 2(1)(d)), CRC (art. 3(3), the ECHR and the ACHR XXX 42 XXXX Cf. "State action" doctrine issues - Tushnet's workshop piece XXX 43 Such that Celina Romany contends "that when women's human rights are infringed by private actors in the context of male violence against women, such acts are attributable to the state", where, that is, she adds, the state systematically fails to provide protection. Celina Romany State

Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law in Rebecca J Cook (ed) HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES, 98-100 (1994) 44 General Recommendation No.19 (Eleventh Session, 1992): Violence Against Women, UN doc. A/47/38 XXX, para.9. Further, article 2(e) of the Convention on the Elimination of Discrimination Against Women states that undertake "to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise". 45 See dissenting opinion in Kall v Poland (552/93) and the separate opinion of Mr Wennergren in S.E. v Argentina (275/88) 46 Hence Romany's qualification that the state must systematically fail to protect women against violence for it to be complicit in such violence; supra, note XXX 47 See, for example, in Rodriguez where the Inter-American Court of Human Rights held that before a State could be considered to have fulfilled any obligation in this respect it must have taken reasonable or serious steps to prevent or respond to an abuse by a non-state actor (paras 172-7). This is similar to the approach adopted by the South African Constitutional Court in its path-breaking judgments regarding the social and economic rights protected under that country's 1996 constitution; see reference to "reasonable efforts" in Grootboom & Ors v The Government of the Republic of South Africa & Ors, Case CCT 11/00. On which jurisprudence, see Alston & Scott article XXXX 48 See the Rodriguez case (1987) in respect of the ACHR xxx quotes xxxx; for various ECHR cases, see generally Kinley, 2000 XXX and for cases involving corporations, Kamminga, 1999 XXX. 49 Costello-Roberts, Series A (1993), para.27. 50 XXXXX ICHRP, 2000 (Draft), p.17, referring to, inter alia, HRC Gen. Comment 21 on art 10, ICCPR. 51 Thomas Franck, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, 3 (1995). 52 Thus, for Max Weber, the State as "a relation of men dominating men ... supported by the means of ... violence," was conditional on such means being "legitimate" or what was considered to be legitimate. 53 Richard Falk, PREDATORY GLOBALIZATION, 92 (1999). 54 Frank, supra, XXX, 5-6 (1995). 55 It is the answers to these questions that essentially separate the so-called "realist" sovereignty theorists and the "idealist" or "cosmopolitan" theorists; see Falk, supra 35-47 (1999)