Key Human Rights Issues in the New Millennium
By Lisa Trojnar
Human rights issues are taking on a new focus as we enter the new millennium. Economic and social rights are becoming of paramount concern as the link between an adequate standard of living and the enjoyment of other basic rights becomes more apparent. Governments are also realizing that many groups in society require a higher level of protection than society as a whole if they are to participate fully in the enjoyment of civil, political, economic, and social rights. These groups include children, women, and indigenous groups, among others.
In the cases in which human rights are violated, new forms of redress are being developed-including international prosecutions against individuals and against corporations. This article will briefly discuss these important developments in greater detail and describe the international community's response.
Poverty
The right to an adequate standard of living is a basic human right enumerated in the Universal Declaration of Human Rights and numerous other human rights instruments, yet the statistics on poverty in today's world are startling. The United Nations Development Programme's (UNDP) 1998 Human Development Report showed that in 1998, nearly three-fifths of the 4.4 billion people living in the developing world lacked basic sanitation. Almost one-third had no access to clean water and one-quarter did not have adequate housing. These types of statistics are not only found in the developing world, however. Currently in the U.S., 35 million people live in poverty, based on the official poverty level of $16,700 for a family of four. Moreover, the gap between rich and poor is widening. UNDP's 1999 Human Development Report showed that the fifth of the world's people living in the richest countries had an income that was seventy-four times that of the fifth living in the poorest countries, up from sixty times in 1990.
In spite of the growing poverty in the world, and the violation of economic and social human rights that this represents, the international human rights agenda has not historically focused on poverty. This neglect stems in good part from the division of human rights into two distinct groups: civil and political rights, such as the right to freedom of expression or the right to be free from arbitrary arrest or detention, on the one hand, and economic, social, and cultural rights, such as the right to an adequate standard of living or the right to housing, on the other. These groups of rights were set forth in two separate covenants, the former in the International Covenant on Civil and Political Rights (ICCPR) and the latter in the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
During the Cold War era, Western nations were suspicious of the types of rights embodied in the ICESCR, particularly economic rights, which were associated with communism. In fact, the United States has never ratified the
ICESCR, although it is still bound to protect some of the economic, social, and cultural rights embodied within it to the extent that they are expressly referred to in other instruments that are binding on the United States, such as the Universal Declaration of Human Rights.The main controversy surrounding these types of rights has been a question of whether or not they are justiciable. Critics of economic, social, and cultural rights say they should not be considered "rights" because they require "progressive achievement" on the part of governments (i.e., governments must take positive action rather than simply refrain from doing something). (See Beth Lyon, "Efforts and Opportunities to Alleviate Poverty in the United States," Human Rights Brief, vol. 7, no. 2, at 6 (Winter 2000).) The challenge for human rights activists in fighting poverty is to build on the work that has been going on in many countries to adjudicate economic human rights claims and to attempt to demonstrate to all members of the world community that such claims can and should be treated like other human rights claims.
The United States, the country most reluctant to recognize economic rights as true human rights, is being held accountable in the Inter-American Commission on Human Rights. The Poor People's Economic Human Rights Campaign and a number of other U.S. organizations and individuals filed a petition with the Commission against the U.S. in October 1999. The petition alleges violations of social and economic rights, including "the rights to an adequate standard of living, health, work, education, food, housing, and social security, and to the rights to protection for family relations, and to be free of discrimination," stemming from the welfare reform law enacted by the U.S. in 1996-the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. (See Peter Weiss, "Economic and Social Rights Come of Age: United States Held to Account in IACHR," Human Rights Brief, vol. 7, no. 2, at 3 (Winter 2000).)
Hopefully, in the new millennium we will increasingly see international legal tribunals used to call attention to such violations in countries that do not address them through their own national courts.
Rights of Vulnerable Groups
Children. In the developing world, about one-fifth of children do not have adequate dietary energy and protein; about one-fifth do not attend school to the equivalent of grade five; and the "under 5" mortality rate is eighty-three per thousand (compared with seven per thousand in the developed world). In the developing world, children between the ages of ten and fourteen still make up 14 percent of the labor force. Worldwide there are still an estimated quarter of a million child soldiers.
These statistics are surprising in light of the fact that the Convention on the Rights of the Child, which has been in force for ten years, is the world's most widely ratified treaty (only the United States and Somalia have not ratified it). The Convention includes such rights as: the right to survival and development; the right to be free from physical harm and neglect; the right to the highest attainable standard of health; the right to education on the basis of equal opportunity; and the right to be free from economic exploitation and from work that "may interfere with the child's education or be harmful to her health or well-being." The Convention also sets fifteen as the minimum age at which a child could be drafted into military service (a recently adopted Optional Protocol to the Convention raises the minimum age for recruitment from fifteen to eighteen, for those countries that ratify the Protocol).
The Convention's aspirations are high, but the domestic implementation of its provisions has been weak. It has primarily resulted in the development of "special institutions and other organizations specializing in children's rights" and "national plans of action that outline the state's plans to enforce children's rights in health, education, nutrition, and other areas." (See Natasha Parassram Concepcion, "The Convention on the Rights of the Child after Ten Years: Success or Failure?" Human Rights Brief, vol. 7, no. 2, at 2 (Winter 2000).) These efforts draw attention to problems facing children, but do little to correct them. Future efforts must be focused on meaningful incorporation of the Convention's provisions into the national laws of the parties to the Convention.
Women. Women also continue to be disproportionately affected by human rights violations. In areas experiencing civil conflict around the world-from Kosovo to Sierra Leone to East Timor-sexual violence has been used as a means of domination and control by military and paramilitary forces. Although the international community now sees rape and other forms of sexual violence as violations of humanitarian law, perpetrators have rarely been held accountable, according to Human Rights Watch. Therefore, perpetrators have little incentive to refrain from such activity. Women in refugee camps also suffer from rape, sexual violence, and other threats to their health and safety. Even in nonconflict areas, women suffer from gender-specific human rights violations. In some countries, restrictions are placed on a woman's ability to work without spousal consent, and to own property. In others, women are legally classified as minors in labor legislation. Domestic violence is prevalent in many countries around the world, and in most countries law enforcement personnel are inadequately trained to cope with domestic violence issues. In many instances, domestic violence and spousal rape are still not recognized as crimes.
Although domestic implementation of human rights protections for women has been slow to be carried out, some forms of redress have emerged on the international level. The Inter-American System for the Promotion and Protection of Human Rights has led the rest of the world in providing a forum for gender-based human rights claims. Individual women can bring claims against a government before the Inter-American Commission on Human Rights under the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (the Convention of Belem do Para). The Convention of Belem do Para arguably includes a right of action for domestic violence where a government fails to take measures to punish or prevent such violence. A private right of action was also recently created on the international level, with the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Indigenous Groups. Members of indigenous groups and other racial and ethnic minorities continue to suffer discrimination all over the world. Studies in Latin America have shown that members of indigenous groups are one-and-a-half times as likely to be poor than are non-indigenous people in the region. Rates of illiteracy are generally higher in indigenous communities than in nonindigenous communities. However, a World Bank study in Guatemala, Mexico, and Peru showed that only one-half of the difference between the earnings of indigenous and nonindigenous workers could be attributed to "productivity-enhancing characteristics," such as the level of education. The other 50 percent of the earning differential is most likely attributable to discrimination. Actions to protect the rights of indigenous populations such as the recently proposed American Declaration on the Rights of Indigenous People are on the rise. There are also several indigenous rights cases currently pending before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
Redress for Human Rights Violations
Individual Responsibility. Impunity for human rights violations, particularly for those in the upper echelons of command, continues to be a problem in the new millennium. Individual countries in crisis continue to offer impunity to perpetrators of some of the most heinous crimes imaginable. For example, in Sierra Leone, the democratically elected president, Ahmed Tejan Kabbah, was convinced by members of the international community to sign a peace accord with Foday Sankof, the leader of the rebel Revolutionary United Front (RUF). Although the RUF is known to have committed countless atrocities, including systematic rape, dismemberment, and murder, the peace accord granted Sankof amnesty from criminal prosecution in Sierra Leone and gave cabinet posts to a number of RUF leaders.
Countries also continue to use tactics such as what Human Rights Watch has labeled "the death squad dodge." In other words, "abusive militaries subcontract atrocities to irregular forces which the military [can] then claim were beyond its control." ("Introduction," Human Rights Watch World Report 2000.) This may have been the case most recently in East Timor, where militia members conducted a campaign of killing, torture, and destruction throughout the country. The campaign was conducted after East Timor held a referendum in which its people voted for independence from Indonesia. The government of Indonesia claimed it was trying to control the militias but could not. Evidence suggests, however, that there was army and police complicity involved.
There have been significant strides in both international organizations and in individual state action to prosecute crimes against humanity. The most obvious examples of the former would be the prosecutions by the International Criminal Tribunal for Rwanda, which has now convicted five individuals, including former Prime Minister Jean Kambanda. Another notable success was the indictment of Yugoslav President Slobodan Milosevic by the International Criminal Tribunal for the Former Yugoslavia, the first indictment of a current head of state. The most important example of the latter was the recent historic arrest in England of former Chilean president General Augusto Pinochet. The actions against Milosevic and Pinochet, although they did not result in convictions (or even
trials, for that matter), have paved the way for future prosecutions. Additionally, support for the International Criminal Court has been growing around the world and it is hoped that enough countries will ratify the treaty to officially create the court within the next few years, thus establishing a permanent international forum to address these types of issues.Moreover, the days of governments denying control over "rogue" paramilitary forces may be coming to an end. In response to the violence carried out by militias in East Timor after the 1999 referendum on independence from Indonesia, UN Secretary General Kofi Annan made a bold new pronouncement on liability for such attacks. He said that regardless of whether the Indonesian military actually controlled and gave orders to the militias, the government would be subject to liability for the violations if it did not "either stop the killing itself or consent to the deployment of international troops who were willing to do so." Failure to allow the entry of international troops would be seen as a failure to take "all feasible measures" to stop the atrocities, as required in the Geneva Convention. This interpretation does not have the force of law, but according to Human Rights Watch, it may be a first step in eliminating the incentive to "commit atrocities by proxy."
Corporate Responsibility
Another ongoing issue with respect to stopping and punishing human rights violations is assessing corporate responsibility for such violations. With so much money at stake and the ability of huge multinational corporations to conduct business virtually anywhere in the world, countries are willing to go to the lowest common denominator in terms of workers' rights and environmental protections in order to attract foreign corporations. Corporations, therefore, have a significant indirect impact on states' human rights policies. In addition, there have been egregious examples of direct corporate complicity in some human rights violations. For instance, take the case of Enron Corporation, which owns 50 percent of the Dabhol Power plant in India. Human Rights Watch alleges that "[i]nnocent people were beaten up and arrested on trumped-up charges, sometimes outside the very gates of Enron's power plant, because they were demonstrating against what they believe are the plant's adverse effects on the local environment and economy. The police committing these abuses are under the command of local headquarters, but the company pays their salaries."
There is difficulty inherent in policing and enforcing human rights standards against multinational corporations. The consumer-goods industry-being especially vulnerable to public opinion pressure-has done the most to police itself. For example, Nike, bowing to consumer pressure, created its own code of conduct. There are also a number of associations, such as the Fair Labor Association (FLA) that corporations can join, in which they can pledge to abide by a code of conduct, and subject themselves to some type of monitoring system. The problem with these types of voluntary codes of conduct and monitoring programs, other than their lack of enforceability, is that corporations that do not manufacture "consumer goods," but rather manufacture goods to sell to other corporations (a large percentage of global trade), have little incentive to join.
For those who will not police themselves, a positive precedent has recently been set under U.S. law in the case, John Doe I et al. v. Unocal Corporation, et al., 963 F. Supp. 880 (C.D. Cal. 1997). Burmese citizens brought this case against Unocal, a U.S. corporation, for violations of human rights that took place in connection with Unocal's operations in Burma. The court ruled, in a pretrial motion to dismiss, that there is jurisdiction under the U.S. Alien Tort Claims Act that may allow other foreign nationals to sue for reparations from U.S. corporations operating in their countries. If corporations are held responsible in such a manner, they may be less willing in the future to operate in countries with poor human rights records.
Conclusion
These are just a small sampling of some of the troublesome human rights issues that must be dealt with as we move forward into the new millennium. Although there has been progress made on some fronts, it is clear that much work still needs to be done on these and many other human rights problems in the U.S. and internationally.
Lisa Trojnar is the Special Assistant to Dean Claudio Grossman at the American University, Washington College of Law. She is a lawyer and holds an M.A. in International Affairs.
