Academic journal article Suffolk Transnational Law Review

Business and Human Rights Revitalized: A New UN Framework Meets Texaco in the Amazon

Academic journal article Suffolk Transnational Law Review

Business and Human Rights Revitalized: A New UN Framework Meets Texaco in the Amazon

Article excerpt

I. INTRODUCTION

Human rights activists have long lamented the failure of international human rights law to address widespread abuses by the private sector. As multinational corporations (MNCs) have reached ever further into poorly regulated markets, the resulting human rights violations have drawn increasing public attention. Initial responses to human rights concerns have resulted in a patchwork of disconnected, toothless initiatives. Five years ago, the Secretary General of the United Nations designated John Ruggie as Special Representative on Business and Human rights (SRSG) to bring new focus and energy to human rights efforts. The framework proposed by John Ruggie (the Ruggie Framework) represents a milestone in the business and human rights debate.

A great deal of literature has been generated over the course of the five-year mandate of the SRSG, but the major innovation, the Ruggie Framework, has yet to be explored in any real detail. This article describes the evolution of the business and human rights debate leading up to the Ruggie Framework and then takes the concrete case of Texaco in Ecuador--the impact of its operations and the struggle to hold the company accountable--to illustrate the emerging consensus around business and human rights and its implications. Texaco's history in Ecuador provides a fertile case study that involves the sector (extractive industries) that draws the most human rights attention; brings a range of issues and actors to the forefront; and is live, heated, and pertinent. This "dry run" with the Framework is intended to highlight the utility of having a common baseline--even in its incipient state--to consider concrete cases of corporate human rights abuses, with an eye to the eventual development of global standards on business and human rights.

II. BACKGROUND ON BUSINESS AND HUMAN RIGHTS

International human rights law was conceived and enshrined in the post-World War II era of powerful nation states. (1) Human rights treaties, in line with international law generally, were aimed squarely at states and took little account of other actors. It was assumed that state governments constituted the gravest threat to human rights, and held the capacity to protect and ensure human rights. Accordingly, with narrow exceptions, (2) the legal obligations imposed by human rights treaties were understood to fall exclusively on states. (3) Corporations, like private citizens, were accountable only to domestic law. (4)

This legal system has failed to keep pace with the changes brought by globalization. The number of MNCs has risen exponentially over the past forty years, increasing five-fold from 1975 to 2001, to reach more than 80,000 today. (5) These MNCs have pushed their way into the far reaches of emerging markets, many with governments lacking either the capacity or willingness to exercise oversight. (6) To the extent that international law has addressed this phenomenon, it has largely served to fuel it through an elaborate network of investment treaties aimed at protecting corporate rights and placing restraints on sovereign prerogatives. (7) These trends have produced a yawning "governance gap."

The mainstream human rights movement, rooted firmly in liberal Western legal ideology, was slow to pick up on the human rights implications of this gap. (8) Through the 1970s and 1980s human rights groups like Amnesty International, Human Rights Watch and the International Federation of Human Rights were narrowly focused on state actors and civil and political rights. (9) The sort of issues that occupied these groups--torture, extrajudicial killings, freedom of expression--were dominated by government action, and there was little need or incentive to address corporate actors directly.

The first significant effort to apply human rights to MNCs came instead from newly independent, developing countries. (10) Many of these governments viewed MNCs as a threat to their sovereignty and independence. …

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