Human Rights and Global Governance - Penn Press

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­ uman Rights and H Global Governance Power Politics Meets International Justice

William H. Meyer

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S

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PHIL A DELPHI A

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Contents

List of Abbreviations  vii

Introduction 1 Chapter 1. The Pinochet Pre­ce­dent as an Exemplar of Global Governance 12 Chapter 2. Indigenous Rights and Global Governance  32 Chapter 3. Corporate Social Responsibility and Global Governance  68 Chapter 4. Testing Theories of ­Labor Rights and Development  106 Chapter 5. Torture, Terror, and Unjust Wars  130 Chapter 6. ­Human Rights Treaties and the Pacific Interregnum  169 Chapter 7. Two Models and ­Future Prospects for Global Governance of ­Human Rights  192

Notes 219 References 223 —-1 —0 —+1

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vi Contents

Index 000 Acknowl­edgments

245

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Introduction

Question: What do the following cases have in common? Bringing former dictators to trial; indigenous lands in the Amer­i­cas that have been stolen by developers; mineral rights to newly opened territories in the Arctic; sweatshop working conditions, and buildings collapsing on workers in the Global South; U.S. policy that exchanges access to domestic markets in return for better l­abor rights in Southeast Asia; war crimes in Iraq and Af­ghan­i­stan; drone warfare and torture used against suspected terrorists; and the interactions linking war, peace, and making new treaties to protect h ­ uman rights. Answer: Each of ­these cases raises issues and demonstrates pro­cesses that can help us to understand the evolving nature of global governance over international ­human rights. International ­human rights has been an impor­tant topic for study, policy, and activism since the end of World War II. Global governance is, comparatively speaking, a relatively new topic for students of international relations. This text brings the two areas together by presenting six case studies at the intersection of power politics and international justice. Chapters 1 through 6 in this book ­w ill review: (1) the global campaign to end impunity for dictators; (2) indigenous rights; (3) the creation and expansion of efforts to ensure corporate social responsibility; (4) the interactions between ­labor rights and development in the Global South; (5) just war theory as it applies to torturing terrorists, war crimes in Af­ghan­i­stan and Iraq, and the drone wars; and (6) the global strategic environment that best facilitates the making of ­human rights treaties. Chapter 7 concludes this research by presenting the successes and failures of two models for global governance of h ­ uman rights. The conclusion also discusses reforming the UN Security Council in order to reduce war crimes. The final chapter ends with a description of what the ­f uture of global governance for ­human rights could look like.

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2 Introduction

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This text uses a mixture of historical, quantitative, normative, and policy analyses to address ­t hese topics. Chapters 4 and 6 employ statistical methods to derive the connections between ­labor rights and development, and the impact of war on treaty-­making. All seven chapters use historical, ethical, and policy-­based analyses as well. An eclectic methodology is required ­because both ­human rights and global governance cover such a wide range of issues. ­Human rights and global governance are also both highly contested concepts. Both ­human rights and global governance mean dif­fer­ ent ­things to dif­fer­ent ­people and within dif­fer­ent contexts. Contestation over ­human rights can often be traced to the competing values of conflicting socie­ties and the resulting debate over cultural relativism. Much of the contestation over global governance finds its roots in conflicting empirical and theoretical claims (see below for a review of global governance theory). Both ­human rights and global governance also sit at a nexus between power politics and ethics. The term “global governance” came into vogue at the end of the twentieth ­century as a result of a massive sea change in global politics. In the 1990s, the Western powers declared victory in the Cold War. One immediate result seemed to be increased agency for the United Nations and other international organ­izations now in­de­pen­dent of Cold War restraints. Relevant examples included UN Secretary-­General Kofi Annan’s designs to reform humanitarian intervention, expand the Security Council (see Chapter 7), and establish new international laws to govern ­human rights obligations for corporations (see Chapter 3). Many began to refer to t­hese new initiatives led by the United Nations as forms of “global governance,” but not “global government.” Supporters argue that global governance can perform some of the same functions as a government without relying exclusively on the formal institutional structures of national governments. Unfortunately, this new post–­Cold War architecture for international relations did not lead to the prescriptive and normative outcomes that early champions of global governance had hoped for. Talk of the end of Cold War hostilities leading to a “peace dividend” that could be invested in green technologies or developmental assistance to the Global South turned out to be premature. Hopes for a brave new world of peace and increased standards of living throughout the globe fell victim to the power politics of anti-­terrorism ­after 11 September 2001. ­Human rights and global governance are two areas that are inextricably linked to both international justice and power politics. Power politics and

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Introduction 3

­ uman rights are among the tectonic forces shaping the landscape of twenty-­ h first-­century international relations. Each of the case studies in this text stands as an example of the interconnected nature of justice and power. The remainder of this introduction w ­ ill describe the case studies that follow in ­ ill also terms of their power politics and international justice dimensions. I w include a brief overview of theories of global governance. The six case studies of this text can be usefully divided into three subsets: (1) global governance and the dispossessed; (2) global governance and international markets; and (3) global governance, war, and peace.

Global Governance and the Dispossessed The first two chapters in this study cover global governance to aid transnational populations that have been among the most marginalized ­peoples in the world. Chapter 1 pre­sents the Pinochet pre­ce­dent as an early archetype of global governance. The Pinochet pre­ce­dent created the first international model for bringing Cold War dictators to justice (beginning with General Augusto Pinochet in Chile), particularly for the crime of po­liti­cal disappearances. Right-­w ing, anti-­communist dictators in Latin Amer­i­ca regularly made their po­liti­cal opponents “dis­appear” by means of torture and murder, then denied any role in ­t hese disappearances, and denied any knowledge of such crimes. Po­liti­cal disappearances carried over into the wars against terror ­after 9/11 in the form of “renditions.” Once again, ­people (e.g., suspected terrorists) ­were targeted, kidnapped, tortured, and murdered with governments once again denying any involvement or knowledge of their victims’ whereabouts. The power politics of the Cold War ensured that pro-­U.S. dictators enjoyed impunity from prosecution for such crimes during that era. American military aid and American diplomacy provided the means and po­liti­cal cover for right-­w ing repression. The power politics of post-9/11 anti-­terror hysteria have shielded from prosecution ­those who tortured and murdered suspected terrorists (in most cases). However, international activists during both periods cried out for accountability and bringing to justice t­ hose responsible for po­liti­cal disappearances. Creation of the Pinochet pre­ce­dent was a watershed moment that reversed the trend of unchallenged impunity. The Pinochet pre­ ce­dent also created momentum ­toward supporting the victims of po­liti­cal disappearances and led to prosecution of the guilty. Chapter 1 tells the story of bringing General Pinochet in Chile to justice, reviews subsequent

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4 Introduction

international efforts to end impunity for dictators, and draws connections to post-9/11 instances of po­liti­cal disappearances. Chapter 2 reviews key efforts to establish global governance in support of indigenous rights. Indigenous p ­ eoples are another (even larger) population of the dispossessed, disenfranchised, and abused. Power politics have determined the policies of the major states t­oward indigenous tribes, leading to widespread rights violations. Chapter 2’s discussion of the United Nations, the Organ­ization of American States, and the Inuit Circumpolar Council identifies some recent successes in the campaigns for greater justice for indigenous ­peoples. This discussion of indigenous rights also leads to further consideration of a debate among global governance theorists over the alleged devolu­ ill argue in Chapter 2 that, while tion of sovereign governmental powers. I w indigenous ­peoples have made impor­tant inroads into state power and sovereignty in some areas, the conflict over in­de­pen­dence for indigenous groups reveals some of the limits to (or boundary conditions for) global governance.

Global Governance and International Markets

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Chapters 3 and 4 address ­human rights and transnational corporations (TNCs). Chapter 3 pre­sents a history of corporate social responsibility, which includes an effort to impose ­human rights obligations on TNCs. Chapter 3 also reviews cases before federal courts in the United States that have sought to hold TNCs accountable for their h ­ uman rights violations. To date, the economic and po­liti­cal power of advanced industrialized states has been employed to see that ­t here are almost no binding international ­legal obligations ­ ere are also few l­ egal ave­nues by requiring TNCs to re­spect ­human rights. Th which victims can bring TNCs to justice when corporations violate their rights. Chapters 3 and 4 bring together developments at the World Trade Organ­ization (WTO) and case law u ­ nder the U.S. Alien Tort Claims Act, that (in combination) can point the way ­toward a new global governance regime for TNCs and ­human rights in the ­f uture. Chapter 4’s primary topic is the relationship between l­ abor rights and development in the nations of the Global South. I discuss the campaign for a new social clause at the WTO to protect l­abor rights and the environment. Debate over a new social clause for the WTO broke down during the WTO’s Doha Round (2001–2015) of international trade talks. A social clause for the WTO in the ­f uture remains as a crucial and necessary next step for creating enforceable ­legal obligations that can hold TNCs responsible for rights vio-

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Introduction 5

lations. ­These interconnections between TNCs, ­labor rights, corporate social responsibility, U.S. courts, and a WTO social clause are laid out in Chapters 3 and 4, and further detailed in Chapter 7.

Global Governance, War, and Peace Chapter 5 applies the principals of just war theory to Amer­i­ca’s war on terror. It begins with a history of the origins of torturing suspected terrorists in ­ fter 9/11, the United States the United States and the United Kingdom. A ­adopted the British model for mistreatment of detainees. The creation, evolution, and evaluation of Amer­i­ca’s use of torture tactics are summarized. Chapter 5 then pre­sents a review of American war crimes in Iraq and Af­ghan­ i­stan, with special focus on a series of massacres in t­hose nations by U.S. troops. Chapter 5 ends with a consideration of the use of drones in relation to moral limits on the war against terror. Chapter 6 takes a more systemic approach to war, peace, and global governance. This final case study draws on a data set of 160 ­human rights treaties, covering the time period of 1946 to the year 2000. I review prior studies and the debate over ­whether ­human rights treaties change the be­hav­ior of states. I also pre­sent two illustrative cases of treaty-­making: the International Campaign to Ban Landmines that created the 1997 Ottawa Convention banning antipersonnel landmines; and the seventy-­year campaign for a treaty on c­ hildren’s rights that culminated in the UN Convention on the Rights of the Child (1989). This contextual material then serves as background for a quantitative analy­sis of the ­ uman rights treaties. Starelationship between wars and the making of new h tistical evidence from Chapter 6 shows that, contrary to widespread prior as­ uman rights treaties is not a sumptions, the primary trigger for creating most h war or military crisis. Rather, creation of ­human rights treaties is much more likely ­after an extended period of global peace (with times of war versus peace mea­sured as total ­battle deaths). Treaty-­making for ­human rights is more likely during an extended peaceful interregnum between wars.

Two Models of Global Governance and the F ­ uture of Global Governance The concluding chapter of this text summarizes the combined lessons from the collected case studies by presenting two models of global governance for ­human rights. This summary devotes special attention to the successes and

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6 Introduction

failures of global governance for dictatorial impunity, indigenous rights, corporate social responsibility, ­labor rights, and treaty-­making. Global governance and military interventions by the permanent members of the UN Security Council merit a separate discussion in the conclusion. I review proposals for expanding the Security Council as a way to discuss a pos­si­ble ­f uture where ­t here are greater restraints on unilateral military intervention and fewer war crimes ­ uman The final chapter also considers the f­ uture of global governance for h rights. I pre­sent Michael Walzer’s ideal types for “governing the globe” as a ­ uman way to speculate on the likely shape of f­ uture global governance over h rights. I also consider policy proposals to help us reach this f­uture state—­ policies that are derivable from the results of my case studies combined with Walzer’s normative theory.

An Introduction to Theories of Global Governance

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In 1991, the Soviet Union collapsed and the Cold War ended. In 1992, James Rosenau and Ernst-­Otto Czempiel published Governance Without Government: Order and Change in World Politics, a seminal text in the academic lit­ er­a­ture on global governance. In 1995, the Commission on Global Governance published its initial report expressing hopes that the United Nations would become a more power­ful and influential organ­ization. A new academic journal called Global Governance was also created in 1995. ­These rapid developments helped to bring the concept of global governance to center stage in research on world politics for the first time. A comprehensive description of the voluminous lit­er­a­tures on global governance is beyond the scope of this text. By way of introduction, I ­will summarize global governance studies in terms of three dimensions: global governance as an analytical worldview; empirical studies of global governance; and the special focus of global governance on international norms. Mainstream approaches to international relations have a history of ­limited scope. Dating as far back as the times of Thucydides (historian in ancient Greece, fifth ­century BCE), most studies of world politics have had a central focus on states, power, and war. Actors other than states, and issues not directly related to national power or war, w ­ ere largely overlooked or discounted. This view is usually referred to as “realism” or “realpolitik.” Global governance as an analytical worldview (or what phi­los­o­phers call a Weltan-

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Introduction 7

schauung) is one of many alternatives that have been advanced to correct or expand upon realism and realpolitik. Other critics of realism can be found in theories of feminism, constructivism, or neoliberal institutionalism. Global governance as an analytical worldview is perhaps the most ambitious and wide-­ranging recent alternative to classical realism and its successors (recent variants are referred to as neorealism). Global governance as a theory-­based worldview seeks to correct the fallacies and myopia of realism and neorealism. Theories of global governance argue for an inclusion of, and emphasis on, nonstate actors (in addition to states). Nonstate actors highlighted by global governance include international organ­izations (IOs), private institutions, and civil society. Global governance theory offers a new lens on the world, freeing us from the restrictions of prior mainstream approaches. Studies of global governance, especially ­t hose by James Rosenau, point to the devolution or disaggregation of national sovereignty to other levels of analy­sis and other actors. They also investigate the linkages between local, national, regional, and global politics. Theories of global governance gives us a new terminology, a new way of thinking, and an escape from the limits of mainstream international relations theory. Theories of global governance bring our attention to the rise of nonstate actors, the expanding activities of IOs, the dynamics of regionalism around the globe, and new forms of power. To demonstrate the power of a global governance approach, most members of this school of thought engage in empirical research as well. Klaus Dingwerth and Philipp Pattberg (2006: 185) argue that global governance “describes a specific set of observable and related phenomena and offers answers to failures of existing international relations theories to account for the empirical transformations” of post–­Cold War global politics. Empirical studies of global governance abound. Once again, a comprehensive summary is beyond the scope of this discussion, but a series of illustrative examples should suffice. Global governance theory has been used as a guide for empirical studies on climate change and the environment (Cadman, Maguire, and Sampford, 2017; Hoffmann, 2005), the Red Cross and the rules of war (Finnemore, 1996), transnational advocacy networks and po­liti­ cal activism (Keck and Sikkink, 1998), and international bond rating corporations (Sinclair, 2005). Other studies look at humanitarian intervention (Falk, 2015), the HIV/AIDS epidemic (Harman and Lisk, 2010), and corporate

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social responsibility (O. F. Williams, 2014). Additional recent texts look at global governance in the areas of rising powers (Gray and Murphy, 2017), the Security Council (Popovski and Fraser, 2017), or nongovernmental organ­ izations (NGOs) at the UN (Ruhlman, 2017). Prior empirical works on ­human rights and global governance have focused on national ­human rights institutions that promote state compliance (Goodman and Pegram, 2012); ­human rights “stewards” that make international law more effective at the national level (Hafner-­Burton, 2013); and networks of IOs that promote diffusion of rights for ­women and sexual minorities (Greenhill, 2015). International organ­izations such as the UN or the Eu­ro­pean Union, and civil society actors such as NGOs or social movements, are featured in numerous other global governance studies. A third area of global governance that should be of special interest to students of ­human rights is its focus on international norms. Global governance scholars argue that norms shape the actions of states and nonstate actors just as much as (and in many cases more than) a realpolitik focus on ­ uman rights) power calculations. Norms, values, and ethics (not to mention h are topics that realism largely ignored. Thomas Weiss’s work on global governance posits a “norm gap” in international relations that a global governance approach is especially well-­suited to address. Weiss reviews the “gaps” in norms governing the Security Council, anti-­terrorist policy, and humanitarian intervention (2013: chap. 5). He argues that such gaps prevent us from “reaching consensus about universally accepted norms” and closing ­t hese gaps through a better understanding of global governance is “what remains to be done” (2013: 45–48, emphasis in the original); closing the gaps and creating universally accepted norms would create “more order, stability, predictability and prosperity with a fairer distribution of benefits for the planet” (45). Weiss then relies on Martha Finnemore and Kathryn Sikkink’s seminal work (1998) that posits a life cycle of international norms through the stages of emergence, “cascading,” and internalization. Global governance is not without its critics, both external and internal to this epistemic community. One major criticism is that global governance is overly broad and poorly defined. Lawrence Finkelstein’s 1995 article entitled “What Is Global Governance?” was one of the first to assert that the term “global governance” is so vague and imprecise that it has been used to mean “virtually anything.” Craig Murphy (2000) is often quoted regarding his view that “global governance is poorly done and poorly understood.” Alice Ba and

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Introduction 9

Matthew Hoffmann, staunch defenders of global governance theory, admit that “global governance can . . . ​be an entirely frustrating term and area of inquiry” (2005: 1). Thomas Weiss and Rorden Wilkinson (2014) believe that now, more than twenty years ­after Finkelstein first posed his question, “we have hardly advanced” any closer to a definitive answer as to what global governance is. ­There are also many competing definitions for the term “global governance.” The Commission on Global Governance (1995) defines it as: “The sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing pro­cess through which conflicting or diverse interests may be accommodated and cooperative action may be taken.” James Muldoon (2004: 9) defines global governance in terms of its “three institutional pillars”: “The concept of global governance involves three primary actors—­governments, markets, and civil society—­who operate within three basic domains—­the po­liti­cal domain, the economic domain, and the socio-­cultural domain.” This text ­w ill use as our working definition of global governance the one offered by Matthew Hoffmann (2005). “Global governance” in this study is understood to refer to the management of global issues in a po­liti­cal space that has no centralized authority. The next six chapters fit most closely within the prior lit­er­a­tures that pre­sent empirical case studies of global governance. My primary purpose in this book is to demonstrate how a global governance approach can inform our understanding of international h ­ uman rights. The case studies use global governance as an analytical guide. When relevant, global governance theory ­w ill be brought directly into the conversation. In Chapter 1 and Chapter 7, I use the Pinochet pre­ce­dent to introduce and analyze two dif­fer­ ent models of h ­ uman rights and global governance. In Chapter 2, I use the results of my studies of indigenous rights to speak to the limits of global governance, especially in regard to the jealous protection by the g­ reat powers over their sovereign rights to control their borders and natu­ral resources. Chapters 3 and 4 bring together the campaigns for corporate social responsibility, a WTO social clause, and American federal court jurisdiction over TNC violations of rights to pre­sent a way forward in creating enlegal responsibilities for TNCs to re­ spect ­ human rights. The forceable ­ conclusion of Chapter 7 builds upon Walzer’s normative theories of governing the globe to pre­sent an achievable ­f uture for global governance of international ­human rights.

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10 Introduction

This study brings together global governance theory, global governance empirics, and global governance norms. I begin with a discussion in Chapter 1 of the Pinochet pre­ce­dent. The Pinochet pre­ce­dent ­w ill be presented as an early archetype of global governance for h ­ uman rights.

Bridging the Divide Between Case Studies of H ­ uman Rights and Global Governance Theory

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This text brings together case studies of h ­ uman rights violations and theories of global governance (GG). In some chapters t­ hese connections are easy to make. Chapter 1 pre­sents the unique normative contributions that attention to ­human rights can provide for GG theory. Chapter 2 considers how indigenous rights can help to sort through current debates regarding the changing nature of national sovereignty. Chapters 3 and 4 (combined) show how we can establish new mechanisms for global governance authority over TNCs and ­human rights. However, the relationships between the combined case studies (six in all) and global governance theory in general also require attention to a broader level of analy­sis. While each of the case studies is impor­tant enough to deserve in­de­pen­ dent attention, ­t here is also much to be learned from considering what the combined case studies can tell us about global governance for ­human rights. The broadest conclusions derivable from this book, are based on an inductive logic. This analytical work is presented in Chapter 7. Chapter 7 details ­ ese two models are intwo models of global governance for ­human rights. Th troduced in Chapter 1, and then discussed more fully in Chapter 7. I have labeled them as “Type I—­Global Governance as Synergy”; and “Type II—­ Global Governance as Institution Building.” ­ oing my case studies first, and then askI arrived at the two models by d ing myself what the combined results from all case studies can teach us. This is an inductive logic that uses the rich details of the case studies as a foundation on which to build broader generalizations—­and policy prescriptions—­ that go beyond the par­tic­u­lar case studies themselves. During the pro­cess of bringing this book to press, at least one reviewer found it very useful to read the book like some p ­ eople read detective novels. It is pos­si­ble, for ­t hose readers primarily interested in GG theory, to read Chapters 1 and 7 first, and then go to the case studies contained in Chapters 2 through 6. For ­t hose who are more theoretically inclined, ­going directly to ­ ill give you the functional equivalent of Chapter 7 a­ fter reading Chapter 1 w

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Introduction 11

reading the ending of a detective novel (first) to get the “whodunit” moment up front. For a GG theorist (or perhaps gradu­ate students) having a fuller understanding of Type I versus Type II global governance, as presented in Chapter 7, might be useful prior to reading the case studies in Chapters 2 through 6. Most students of h ­ uman rights, on the other hand, w ­ ill prob­ably be primarily interested in how global governance is related directly to abuses of indigenous rights, l­abor rights, and the rights v­ iolated by corporations or the war on terror. For ­t hose students looking first and foremost for materials on specific violations of rights, I suggest reading the chapters in the order presented. Once the details of the six case studies have been mastered, the inductive logic that produced the theoretical generalizations and policy recommendations of Chapter 7 should be easy to follow.

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