Course Global governance

UNIVERSITE CATHOLIQUE D’AFRIQUE CENTRALE
INSTITUT CATHOLIQUE DE YAOUNDE
FACULTE DE SCIENCES SOCIALES ET DE GESTION
Académie de la paix et des droits de l’homme en Afrique centrale
MASTER DROITS DE L’HOMME ET ACTION HUMANITAIRE
COURSE GLOBAL
GOVERNANCE
2016-2017
Pr ATANGCHO AKONUMBO
UNIVERSITE CATHOLIQUE D’AFRIQUE CENTRALE
INSTITUT CATHOLIQUE DE YAOUNDE
FACULTE DE SCIENCES SOCIALES ET DE GESTION
Académie de la paix et des droits de l’homme en Afrique centrale
LECTURE NOTES ON GLOBAL GOVERNANCE
Introductory note
According to the Commission on Global Governance (1995), governance is the sum of many
ways by which individuals and institutions, public and private, manage their common affairs.
Governance is a complex political concept that appeared at the end of the 80s in international
relations, and which has now slithered into the national stage as a key vector for integrating
and unifying political efforts in the management of resources in the interest of citizens,
through transparent and accountability rules in strict respect for the rule of law, democratic
principles and human rights. It involves a system of supranational regulation of public goods
through organisational rules at the global level, most especially, as a result of international
cooperation. The CotonouAgreement between the EU and ACP countries (2000 as revised in
2010) provides a graphic description of the notion of governance, as one of the principles
founding the partnership:
‘In the context of a political and institutional environment that upholds human
rights, democratic principles and the rule of law, good governance is the
transparent and accountable management of human, natural, economic and
financial resources for the purposes of equitable and sustainable development. It
entails clear decision-making procedures at the level of public authorities,
transparent and accountable institutions, the primacy of law in the management
and distribution of resources and capacity building for elaborating and
implementing measures aiming in particular at preventing and combating
corruption’ (Art (3))
Since world politics is characterised by (global) governance, without government, the process
of (global) governance (or world governance) encompasses a broad range of actors. In
addition to the public, inter-sate economic actors such as the IMF, WTO and the World Bank,
and human rights treaty-based monitoring bodies such as the various UN Committees, states
retain a key decision making role although it is thought in some quarters that states have lost
their individual sovereignties in favour of the global ‘government’). Meanwhile, large private
scale enterprises or Multinational Corporations and NGOs also participate in governance by
attempting to influence the activity of international organisations and states.
Undoubtedly, human rights have, more than most other issue areas, been regulated through
global governance. The interplay between states, international organisations and non-state
actors has allowed human rights to become a core component for global governance. In fact,
the advocacy and mobilisation efforts of NGOs, for example, have to a great degree been
responsible for the successful institutionalisation and legalisation of human
rights.Transnational NGOs such as Transparency International and Human Rights Watch act
as powerful agenda-setters and watchdogs. They brief the United Nations Security Council
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and the Human Rights Commission in informal and formal consultations on a regular basis.
Human rights committees increasingly rely upon their reporting (so-called “shadow reports”)
as an independent information mechanism additional to the states’ reports.
Despite global governance efforts in the domain of human rights, challenges abound for a
number of reasons.
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-
-
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The first relates to the implementation of international human right law standards and
there are no compelling parameters. States’ interests in implementing human rights
and ending immunity is still problematic
Accountability of human rights institutions. Achieving global accountability for
human rights violations would mean to establish accountability checks for global
governance institutions and non-state actors as well. Global governance can help
addressing the implementation gap.
Human rights may be used as a pretext for strategic interests. The over-extension of
human rights, i.e. applying human rights to all kinds of situations, leads to a
devalorisation of the concept that threatens existing achievements. For example,
interventions in the name of human rights need to be legitimised and mandated by the
international community, else they become is a clear to mandates for occasioning
further human rights violations such as in the case of Iraq and Syria.
The sanctioning regime for non-compliance is weak. It is important to enhance the
sanctioning capacities of the existing legal regime. Countries that are reluctant to
implement treaties should be sanctioned or dismissed or not admitted in international
human rights forums/institutions.
This course focuses on global governance actions in human rights related issues by global
governance actors: states and multinational (or so-called global) institutions as one aspect of
the much wider global politics and governance structure in five almost apparentlyunrelated
thematic areas linking human rights.Suffice to note a priori thatth e thematic areas portray the
fact that, just as human rights, the conceptual framework of global governance is both huge
and complex.
Session 1: Global public goods
Session 2: Water as a global public good and a human right
Session 3: Global socioeconomic rights
Session 4: Environmental and sustainable development areas of food security, inclusive green
growth and energy security
Session 5: Corporations and human rights: framework for legal responsibility
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1. UNDERSTANDING GLOBAL PUBLIC GOODS: CONCEPTUALIZATION
OF
1.1 Identifying Global Public Goods
The substance of the concept of global public goods (GPG) is not new but as a theory in the
parlance of the (drifting) welfare state, it is a rather new. Its analytical foundations are traced
in the mid-50s when strong and central role of the state was advocated thereby lending
support to the frequent equation of GPGs and state-provided goods.1 Meanwhile, one may
side with the view that public goods were provided before the middle-ages and even before
the advent of the nation-state. However, while the theory of public goods assumes this role
for the state, the latter’s functions have changed considerably over the second half of the last
century as have the goods and services provided by the state itself. 2
The theory of GPGs is somewhat blurry and at best, a sheer abstractum. Indeed, it is difficult
to determine the full breadth of what really constitutes GPGs and what does not. In addition,
even when it is known, difficulty abounds in sifting the so-called pure public goods from the
impure public goods.3 This is especially so as the rather controversial distinction between
private goods and public goods (discussed below) is often the privileged stance of the sifting
process. When one clamps on their (private and public goods) respective features, the
definition of GPGs is blurred as some goods are complex in nature while others have literally
changed over time from the private regime to the public regime and vice versa, or have
simply shuttled between or straddled the regimes. More so, the role of the state has also
changed from the pure welfare state (that is, the provider of all basic social needs) to the state
liberal and democratic that provides only what is traditionally devolved to it – security,
education, defence, etc. Even here, the state is losing its grip because of globalization and the
need to address issues from a global perspective than from national perspective. For example,
security is now a global issue. Terrorism, crime and pollution are not issues affecting one
state. Transmissible diseases know no borders. Rivers serve more than one country as they
pursue their courses. The place of action/cause and the place of effect/consequence are
different and extensive in space. This means that more efficient provision and standardization
of GPGs no longer depends on individual state actions, but on that of more than one state
through regional and international cooperation and non-state actors.
1
2
3
That is, goods provided by the state and which provision are seen as one of the main rationales of the
existence of the state. See Desai, M ‘Public Goods: A Historical Perspective’ in Kaulet al (2003) infra, 5.
See generally, Kaul, I & R Mendoza ‘Advancing the Concept of Pubic Goods’ in Kaulet al (2003) infra 78,
at 78.
Desai supra.
Impure public goods are public goods that are excludable and have externalities but which are genuinely
beneficial to many people. They are rivalrous, in the sense that one has to choose among them as well as
determine the quantity and quality of the chosen item. It is submitted that the state supplies both pure and
impure public goods. There is a choice and budgetary problem with regards to impure public goods. For
example, for goods such as national security, there can be differences among citizens and their
representatives about the optimal level of provision. Desai (p. 72). Meanwhile, goods such as the judicial
system have been considered pure goods. However, some private goods have universal benefits and are
consumed by specific age groups, such as basic education by children. Desai supra.
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Thus, security measures are no longer national in the event of transnational and international
crime and so are environmental actions and policies which have transborder implications.
Goods are produced in one country and are consumed globally and so the regime for
consumer protection can no longer be national as the rights of consumers and the health
implications of the goods are no longer national. Equally, one of the virulent aspects of
globalization is trade fluency across borders calling into play multilateral trade rules and
regimes for the protection of intellectual property rights in the interest of both creators and
distributors of goods and services and ultimate consumers. However, the major setback in the
globalization of public goods in the search for equity and justice between nations, states,
peoples, groups, communities, cultures, regions and generations is the very inequality that
exists between them resulting in whether poorer states are capable of absorbing the shock of
the weight of the process generated by richer nations. The search for equality amongst
unequals invariably entails sacrifices in the form of concessions, influences and losing or
gaining of standards. The European Union type of political and economic integration is
reminiscent of the discussion here as poorer former Eastern European states have seen their
per capita income and social security standards improved to meet community standards while
the richer Western Europe has seen increased unemployment rates due to free migration of
community citizens across community borders in search for better paid jobs as a right. Yet,
the other side of the story is also true as the weaker and poorer states have to bear strict
community rules on sustainable management of the environment, energy, the natural
resources sector and intellectual property for the benefit of the whole community including
the richer states which are poor in natural resources.
In developing countries and in least developing countries generally, the state is still largely
the welfare state which provides almost every basic need due to poverty constraints contrarily
to what obtains in developed countries. In this light, AgnarSandmo, 4 basing on the Theory of
Pure Public Expenditure by Paul Samuelson,5 has shown that pure public goods can be
generalized to an international level and that pursuing global production efficiency may lead
to inequity.
With this in mind, one may now focus on an attempt to define the concept of GPG. Let’s
begin with a key note on the key expression - ‘good(s)’. From a prompt reflection, the
expression refers to a commodity of trade or commercial activity – goods and services. This is
correct if one were to go by the items constituting ‘goods’ in the ordinary sense, which
generally includes private commodities of trade which are accessible depending on one’s
choices, needs and means or even the availability of a desired or chosen item. But in reality,
the notion of goods in GPGs is more complex (and sometimes abstract) in nature; it refers to
something more abstract - more than the ordinary commodities of trade. Strangely, therefore,
beyond ordinary trade items, ‘goods’ in the concept of GPGs may refer to institutions, legal
frameworks, reforms, access standards to adequate and potable water, access to adequate
health standards or even policy options which are for the common good undertaken or
4
5
Sandmo, Agnar‘International Aspects of Public Goods Provision’. In Kaulet al (2003) infra.
Samuelson, Paul (1954) ‘Theory of Pure Public Expenditure’ Review of Economics and Statistics, 40 (4),
332-38.
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provided by the state as opposed to private needs proper. Thus, when farmers in developing
countries protest against unfair trade practices from the developed countries, they demand
reforms in the multilateral trade regime – global public good. When protesters against G8
summits advocate for reforms in the international financial architecture to benefit every area
on the globe more or less equitably, they are pursuing the global public good of international
financial stability, which affects all countries, and when environmentalists call for the easing
of pollution pressures on the atmosphere, they are asking that a social choice be made not to
over consume this global common.6 These examples clearly abstract the reformative sense of
GPGs, but they also point to institutions that will operationalise the policies and reforms for
the common good, national or international. Some authors7 contend convincingly that the two
tests of a public good, non-rivalry and non-excludability, can be applied at the global level to
such things as environment, health, culture and peace; implying that the environment, health,
culture and peace are GPGs . The authors even suggest that a globalizing world requires a
theory of global public goods to achieve crucial goals such as financial stability, human
security or the reduction of environmental pollution. As such, financial stability, human
security, the internet and knowledge can also be considered as global public goods.
Yet, one may still read from the examples the fact that actions, things or conditions directed at
a common good, that is, to realize a common good (general interest) constitute GPGs (as
opposed to actions, things or conditions that envisage a common bad or ill). The proliferation
of nuclear weapons for a destructive purpose or the degradation of the environment are
common bads, but policies or measures to prevent, contain or eliminate them - establishment
and signing of nuclear nonproliferation treaty, the adoption of policies to enhance
afforestation measures etc - are common goods. In addition, initiatives undertaken to address
a situation may be public goods when taken nationally and eventually GPGs when the
phenomenon they seek to address transgress national borders. Thus, viral infectious diseases
such as the bird flu that struck across areas of Asia and Africa or the cattle foot and mouth
disease in England or the ravaging HIV/AIDS, have set in motion initiatives with GPG
characteristics e.g. public health measures including sanitation, quarantine and the issuance of
travel health certificates. In other words, equitable standards, strives and actions to promote
and improve on humankind’s existence from a global perspective, are, in themselves, GPGs.
The content of these strives is certainly based on the conception and implementation of
reforms, policies and institutions. So, whether GPGs are seen as trading commodities,
reforms, institutions or positive policy strives to enhance good standards of living and
equitable benefit from natural wealth, they have a common focus of being common goods
available to man. As such, even equity and justice appear to be GPGs. The global public good
aspect of equity and justice is not new.
6
7
Meghnad D, I Kaul and R Mendoza, T Sandler & P Conҫieão ‘Concepts: Rethinking Public,Global and
Good’ in Kaulet al (2003) infra (Chapter 1, 60).
See Kaul, I , I Grunberg and M Stern ‘Introducing Global Public Goods’ in Kaul, I , I Grunberg and M
Stern [Eds]) Global Public Goods: International Cooperation in the 21st Century(1999). New York:
Oxford
University
Press.
Foreword
and
Prologue
to
the
book
available
at
<http://www.undp.org/globalpublicgoods/TheBook/thebook.htm>
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Therefore, what are GPGs? The starting point here should most reasonably be a breaking
down the components of the theory and examining each and, thereafter, combining the whole
to make sense.
Public: the public - general population, civil society organizations, corporate citizens – and
states (global public). Thus, public goods are seen as the public’s goods – goods that are in
the public domain and concern many people. They may or may not be produced by the state.
Global: goes across all divides (sectors, borders, groups, etc). It, therefore, includes the local,
national, regional and international levels.
Good:thing (such as legal framework) or condition (such as environmental sustainability) or
policy or measure that enhances well-being.
The approach by prominent authors in the field is very helpful here in linking the words into a
definition of the GPG concept. This is how IngelKaulet al, for example, consider it in a
compendium of treatises: 8
‘...what is a public good? We know that the marketplace is the most efficient way
of producing private goods. But the market relies on a set of goods that it cannot
itself provide: property rights, predictability, safety, nomenclature and so on.
These goods often need to be provided by nonmarket or modified market
mechanisms... Public goods are recognized as having benefits that cannot easily
be confined to a single "buyer" (or set of "buyers"). Yet once they are provided,
many can enjoy them for free. Street names are an example. A clean environment
is another. Without a mechanism for collective action, these goods can be underproduced.’
Public goods are therefore, ‘goods that are in the public domain — goods that are there for all
to consume.
Thus, GPGs are simply national public goods (NPGs) that have gone international in the wake
of globalization and they now have a universal impact on a large number of countries, people
and several generations. 9 So, the understanding of GPGs begins with understanding of NPGs.
Nevertheless, some GPGs have always had a universal impact from inception and as such
have never been national before. Other public goods have changed over time, from being a
local or national public good (or a national public "bad", if they have negative effects), to
being more global in terms of their benefits or costs’.
While public goods are understood to have large externalities (and diffuse benefits), a stricter
definition relies on a judgement of how the good is consumed: if no one can be barred from
consuming the good, then it is non-excludable. If it can be consumed by many without
becoming depleted, then it is non-rival in consumption. Pure public goods, which are rare,
have both these attributes, while impure public goods possess them to a lesser degree, or
8
9
Ibid.
See ‘Global Public Goods’ at: <http://www.sdnp.undp.org/gpgn/>.
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possess a combination of them. It should be borne in mind that non-excludability and nonrivalry are the cardinal traits of public goods, whether national or global.
1.2 Public goods distinguished from private goods10
It is often desirable to draw an analogy between public goods and private goods to be able to
properly protrude the crucial differentiating factor – excludability. 11 Private goods are rival in
consumption and excludable in benefits. Consumption by one person or group diminishes
their availability for others as much as one person or group can exclude others from
consuming them. Private goods meet the transactions of the market and are subject to the
rules of private ownership: they can be transferred or denied.
Public goods are goods that are not limited to a single consumer or group of consumers and
as such are available to all (non-excludable). Public goods create challenges because their
benefits are available to all. Consumption of private goods is rival (because available per
one’s means), while consumption of public goods (at least pure public goods) is non-rival
(because available to all).
Public goods are provided by the state while private goods are provided by the market and as
such, both sates and markets are society’s central mechanisms for coordinating economic
activity and each play a central role in providing both private and public goods. The
individual’s well-being is based on striking the balance between these two goods as no
individual, even the rich, for example, may enjoy wealth amidst crime, violence, insecurity
disease or excessive financial instability. 12 Likewise, escaping poverty is difficult if there is
no public consensus on the respect of everyone’s life 13 and dignity which depend on the
accessibility of public goods often expressed via the protection promotion and fulfilment of
fundamental rights – the right to adequate standards of health, shelter, water, food, security
and so on.
2. PROSPECTING ACCESS TO WATER AS A GLOBAL PUBLIC GOOD AND
A HUMAN RIGHT
2.1 Introduction
About eighty percent of the earth’s surface is covered by water: seas, rivers, streams, lakes,
etc., yet, available fresh water amounts to less than one half of one percent of all the water on
earth; the rest is seawater, or is frozen in the polar ice. Fresh water is naturally renewable only
by rainfall, at the rate of 4,050,000 cubic kilometres per year. Consequently, over one billion
people lack access to safe and affordable drinking water, and 2.4 billion people are without
adequate sanitation. Water is scarce, with some 31 countries currently facing water shortages
and another 17 likely to be added to this list by 2025. Forecast in 2000 revealed that one third
10
11
12
13
The ensuing paragraphs are essentially extracts from Musgrave, R. & Peggy Musgrave Foreword to
Providing Global Public Goods: Managing Globalization. Kaul, I, P Conçeião, K Le Goulven& R
Mendoza [Eds]) (2003). New York: Oxford University Press.
Desai op cit., p. 64.
Kaul& Mendoza op cit., p. 79.
Ibid.
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of the world population would be affected by water scarcity by 2025. Barely five years later,
in 2005, more than a third of the world population was already affected by water
scarcity. 14The United Nations has warned that by 2025, about 1.8 billion people will live in
countries or regions with absolute water scarcity. 15
Some areas or countries may be having water including non-potable water that may be
transformed into potable water but other areas do not even have dirty water. For example, the
West Bank with a population of over 2.7 million faces huge water crises. Palestinians of the
occupied territories of the West Bank and Gaza are not allowed to bore wells under the threat
of further Israeli military operations and incursions. An Israeli pays four times less than the
price a Palestinian pays for water a month. A Palestinian with meagre resources pays about
€100/month. How then is water a GPG under such inequitable and conflicting circumstances?
In every part of the globe where there is human existence water cannot be negotiated it is a
necessity. It is used for growing food, domestic use, farming, industrial processes, ecohydrological uses and the talisman for the survival of ecosystems. In its clean and affordable
form, it is used for drinking and thus a pre-requisite to achieving a minimum standard of
health. But if it is a global essentiality, does that make it a GPG? Mehta holds the negative.
He has been quoted earlier in this course as saying that the scope of water’s benefits may only
mostly generate local or national repercussions and some regionalrepercussions. This author
concludes that the ‘notion of global wars may be exaggerated’ and that consequently, ‘water
is far from having the properties of a global public good’.16
2.2 ‘Privatising’ water: moving towards ‘Commodification’
The World Bank and other international financial institutions play a key role in promoting
water privatization around the world, in alliance with the multinational water giants and the
trade agreements, promoted by industrialized countries that pry water markets open for
corporate access.17 In many developed countries, including the United States, Japan,
Germany, Sweden and the Netherlands, water is supplied by the public sector. However, the
World Bank pushes indebted countries to privatize their water utilities because their public
sectors are incompetent. This means, in effect, that water users will pay the full costs of the
operation and maintenance of these countries’ water systems, increasing prices for people and
creating opportunities for the global water giants to take control over our water – in short,
commodifying water. Trade treaties are helping by requiring countries to deregulate their
water sectors and open them up to private investment.
14
15
16
17
‘A Third of the World Population Faces Water Scarcity Today: Landmark Study Reviewing 50 Years’
Practices Calls for Radical Changes in Water Management’ Consultative Group on International
Agricultural Research and World Water Week (21 August, 2006).Available at:
<http://www.globalpolicy.org/socecon/envronmt/2006/0821waterstudy.htm>.
Deen, Thalif (7 September 2005) ‘UN Treaty on the Human Right to Water?’Inter Press Service. Available
at: <http://www.globalpolicy.org/socecon/gpg/2005/0907waterun.htm>.
Mehta, Lyla ‘Problems of Publicness and Access Rights: Perspectives from the Water Domain’ in Kaulet
al (2003) op cit., p. 556. See Appendix 1 for Mehta’s full argument why water cannot be a global public
good.
See generally, ‘World Bank Sucks Water’. Friends of the Earth, Malaysia. In Water Justice for All… op.
cit., p. 5.
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Pressure from international financial donors apart, there are several reasons why cities, towns,
and even nations consider water privatization. In the developing world, privatization is often
driven by financial and technical concerns. Proponents of privatization argue that the private
sector can mobilize capital faster and cheaper than the public sector, and that private
companies can offer the level of expertise required to manage safe and efficient water
delivery systems for millions of people. Privatization opponents challenge this belief. It is
also argued that privatization of water is socially beneficial because some nations in the
developing world have millions of poor customers without service. The problem, in the view
of opponents, is that nations in the developing world are often ill equipped to negotiate fair
contracts and poor people sometimes bear the brunt of fee increases. In Europe, where water
privatization has a longer history, for example, privatization efforts were driven by ideology
at first, particularly by the belief that smaller government is better, but privatization is
increasingly seen as commercially beneficial and pragmatic. In the United States, financial
concerns over aging infrastructure and inefficient utilities sometimes spur municipalities to
consider privatization.The drive towards water privatization is fostered by the controversial
new idea that water should be considered an ‘economic good’ — subject to the rules and
power of markets, multinational corporations, and international trading regimes.
Despite the growth in private water systems, little research has been done on the benefits and
pitfalls of privatization. It is true that privatization can bring needed money and expertise to
antiquated or inadequate water systems but is also true that poorly planned privatization has
many pitfalls. Ensuring fair access to water — especially for the poor — can be a challenge.
Private water providers have little incentive to protect the environment, to work towards
greater efficiency in water use or to consider the impact of their decisions on communities
‘downstream,’ those who share the same water source.18 Moreover, clear examples from
Uganda, Brazil, India and Cambodia have proven that the public sector can be quite efficient
in providing adequate water supplies in a non-discriminatory manner to all and sundry
thereby de-comodifying water and making a rapprochement with a public good, while
operating in an accountable and a transparent manner. 19
2.3 Water: a human right and a GPG?
It has earlier been mentioned that access to water is human right of the socio-economic rights
regime consecrated in the international human rights agenda. This feature seems to render
water a (global) public good that states should make accessible in adequate usable quantities
to its people to enable then enjoy a sufficient standard of good living.
As in the case of the intellectual property rights, international human rights instruments do not
expressly mention the right to water but this may always be reasonably inferred from relevant
18
19
‘The New Economy of Water’op. cit.
In Uganda, the state-owned water corporation has demonstrated a great capacity to restructure and
improve its performance, boosting service coverage from 48 per cent to 70 per cent in eight years while
the utility now produces a $34 million surplus each year which can be recycled to boost coverage and
reduce leaks.
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provisions. 20 Article 25 of the UDHR provides that everyone has the right to a standard of
living adequate to the health of himself or his family, including medical care and particularly,
food, clothing, shelter, medical care as well as other necessary social services. This should be
read in the light of the broad standards of the right to health and the right to life. Article 11 of
the ICECSR is very close in its substance to article 25 above. The expression ‘including’ in
both provisions indicates that the enumerations that follow are examples and are therefore not
exclusive or exhaustive.21 In other words, any other variable that would ensure an ‘adequate
standard of living’ such as medicines, education, water, etc should be included. Even without
these extrapolations from the above provisions, it is simply unreasonable to infer that the right
to shelter or to food excludes the right to water for ‘the right to feeding comprises not only the
right to solid food, but the right to liquid food, to potable water’. 22 There is no doubt
therefore that, in 2007, the food and Agricultural organization (FAO) was the coordinating
agency within the UN system for World Water Day (observed every year on 22 March), on
the theme, ‘Coping with Water Scarcity’, which highlights the need for increased cooperation
at international and local levels to protect global water resources and to meet the United
Nations Millennium Development Goals.
Coping with water scarcity requires addressing a range of issues, from protection of the
environment and global warming to equitable distribution of water for irrigation, industry and
household use.23 But in addressing these issues, controversies may arise. For example, water
for irrigation exposes some controversy of irrational use of water for a rational purpose
thereby confounding the water problem.For example, Indian dairy farmers cultivate alfalfa, a
particularly thirsty plant, to feed their cows. For every litre of milk the farmers produce in the
desert, they consume 300 litres of water - a practice referred to (by Fred Pearce) as
‘hydrological suicide.’24 However, because the dairy farming is their means of subsistence,
they cannot stop. This situation raises the question as to how to balance the controversy here
between the right to water and the right to food if the right to one compromises the right to the
other.
The United Nations Economic and Social Council has defined the scope of the content of the
right to water as consisting of adequate provision, physically accessible and at an affordable
price, of clean water and of acceptable quality for the personal and domestic usages of
everyone. 25 In a referendum in 2003, 64.7 percent of Uruguayans voted in favour of
20
21
22
23
24
25
SeeNtamag, Jeanne Irène (2005) « l’Eau et la Sécurit” alimentaire au Cameroun » Mémoire de Master en
doit de l’homme et Action Humanitaire (unpublished), APDHAC, Université Catholique d’Afrique
Centrale, p. 19.
See, Committee and Economic Social and Cultural Rights ‘Substantive Issue Concerning the
Implementation of the International Covenant on Economic Social and Cultural Rights’ General Comment
15 (2002) E/C. 12/2002/11, para. 1.
Human Rights Commission ‘Economic Social and Cultural Rights: the Right to Food’ (2001)
E/CN.4/2001/53, para. 39.
Food and Agriculture Organization (15 February 2007) ‘Making Every Drop Count’ Available at:
<http://www.globalpolicy.org/socecon/gpg/2007/0215waterscarcity.htm>.
Carmichael, op. cit.
CESCR, General Comment 15 op. cit., para. 1
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introducing a constitutional amendment which states that ‘water is a natural resource essential
to life’ and that access to piped water and sanitation services are ‘fundamental human rights’26
Africa’s savannahs - which have most of the world’s poorest people who typically rely on
rain-fed agriculture - are singled out by the assessment as holding the greatest potential for
increasing water productivity, increasing agricultural yields per unit water used, yet, the
relative failure of the 1997 Kyoto Protocol aimed at capping greenhouse gas emissions saw
the opting out of the World’s then greatest atmospheric polluter, the United States, makes the
water problem in Africa bleaker.27 In 2006 alone, more than 25 million Africans faced a food
crisis. 28 The Kyoto accord called for higher gas taxes and more regulation to reduce the global
consumption of fossil fuels by an average of 5.2 percent from 1990 levels by 2012. Many
scientists say the use of fossil fuels has raised the level of carbon dioxide in the atmosphere,
which in turn has begun to raise global temperatures. Some world leaders, such as President
Bush, argue that uncertainty over the cause of global warming does not justify the economic
costs of switching from fossil fuels to alternatives, such as solar power or fuel cells. But
European leaders, including former British Prime Minister Tony Blair, called for drastic
measures, such as a 60 percent reduction in carbon emission by 2050.
Today, water is a global concern but it would hardly qualify either as a global public good or
access to it a human right, if one were to strictly stick to the exigencies of both concepts. A
human right is not bought or acquired by sale; it is a legally recognized and enforceable right
inherent in all human beings by virtue of the fact that they are human beings without
discrimination, from birth. But we have seen the water problem between Israel and its
neighbours which is short of those qualities and represent outright restriction of water rights
and discrimination. That situation may even pose a difficulty of understanding water as a
global good. Again, recent privatisation efforts under the auspices of international financial
donors as loan pre-requisites and poverty reduction measures in developing countries only
aim at commodifying water and managing it under shylock market principles. Thus, water is
available only to those who can pay. This is restrictive and discriminatory. It is a derogable
tendency yet human rights are girded in non-derogable standards. The right to health, for
example, is a non-derogable right with a minimum core content. Water is naturally
unavailable in some places; consequently, the right to water is abstract under such situations
and cannot be universal, whereas, human rights are universal. Here again water can hardly be
considered a global good and less human right.
If one were to consider water not only as being merely one of the chief indicators of the right
to health but equally as one of the factors of the traditional normative content of the right to
health, without which the latter cannot be enjoyed, then water seems close to a human right!
So, if water cannot be a global public good, it can be a human right. After all, the
impossibility of fulfilling the standards of human rights is not peculiar to water; even the socalled traditional human rights fall short of standards that define them as human rights while
26
27
28
Pierri, Raúl op. cit.
Presently, China id the world’s greatest polluter.
Baldauf, Scott (6 November 2006) ‘Africans Are Already Facing Climate Change’Christian Science
Monitor. Available at: <http://www.globalpolicy.org/socecon/develop/africa/2006/1106africaclimate.htm>.
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some are outrightly discriminated against - warranting implementation only through
legislative measures and the state’s available means. It should be recalled that generally,
socio-economic rights have been seen as mere ‘ideals’, ‘endeavours’ or ‘pragmatic guidelines
for government policies’ and their justiciability questioned due to their ‘general and vague
formulation’.29 Despite universal standards constitutionalised in international human rights
instruments and the very universality of human rights, housing standards, health standards, or
feeding standards, for example, are not the same within the same country, community and
regions of the world. However, beyond these considerations, water can hardly be considered a
human right because it can be commodified and sold by the state to private ownership and
control; the state which is supposed to be the guarantor and bearer of its publicness. And as
such, water is run on market pursuit (profit) and conditioned by market forces considerations:
competition and unfair competitive/restrictive practices (monopoly, oligopoly or duopoly. No
doubt, there are, compelling arguments for viewing access to water as a human right.
Significantly improving water and sanitation can reduce the spread of disease and improve
people’s health and well-being. 30 Furthermore, accepting water as a universal right would
require suggesting that, at least theoretically, water is a global public good by design —
public in consumption and requiring strong government commitments combined with
international cooperation and resource transfers.31 However, if access to water were a human
right, it is very unlikely that poor people’s human right to water would have an edge over the
current surge of marketing and commodifying water or huge economic profits.
3. GLOBAL ECONOMIC SOCIAL AND CULTURAL RIGHTS
Human rights have a direct impact on peoples’ lives worldwide and this has encouraged the
development of elaborate governance system by states. States therefore strive to promote
these rights domestically and internationally, by partnering with multilateral institutions,
CSOs and the private sector towards this end, with varying successes in institutionalisation
and implementation.In the domain of public health and increasingly education for example,
there have been clear efforts in recent years to hedge off impediments to the realisation the
inherent rights they carry through more concrete commitments in terms of effectivemeasures
and increased funding. The global mobilisation to halt the spread and eradicate of the recent
Ebola outbreakin West Africa is a good example here.
Socioeconomic rights are central to global governance policies and strategizing since they are
the very justification of governance principles for the effective management and deployment
of resources for the wellbeing of all countries and their citizens. Their effective realisation by
states is also indicative of the standard of a county’s level of development.
The proliferation of human rights based arrangements has pushed some states to integrate
binding legislation in their constitutions and statutes. But generally, human rights continue to
meet stiff challenges in war and armed conflict situations against the background of heavily
29
30
31
Ssenyonjo, M (2003) ‘Justiciability of economic and social rights in Africa: General Overview, evaluation
and prospects’ East Afr. J. Peace Hum. Rights, p. 4.
Mehta op. cit., p. 567.
Ibid, p. 565.
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polarised interests of states and multilateral institutions thereby provoking uneven attention
and responses and weak global compliance essentially from states, thus leaving a chance to
CSOs to bolster effort from bottom.They have achieved significant successes in human rights
in collaboration with national governments and International Institutions. NGOs for example
provide data and monitoring offices which can assist states and international organisations in
mapping strategies to protect human rights. Major regional organisations across the globe
(Americas - OAS; Europe - EU, Africa - AU, Asia – ASEANetc) have included human rights
in their economic mandates, with regional courts to ensure the implementation of these rights.
By and large, they have registered dismalprogress in implementing the same as a result of a
number of factors including deficient leadership and corruption, which have slowed
institutionalisation and fanned impunity especially in Latin America and Africa.
In the meantime, some countries continue to draw the line between and contest the
importance of civil and political rights and economic social and cultural rights, which are
most interestingly unavoidable imperatives for human dignity.The African Charter of Human
and Peoples’ Rights, for one, denies any such dichotomy in its structuration, sticking to the
interrelatedness and indivisibility of human rights. Meanwhile, violators are either parties or
non-parties to key human rights treaties and institutions as well as private persons
(corporations) and impunity lags on. Some actually resist the human rights partisanship as
conflicting with their ideological and/or cultural or social values. The UN is the main global
actor in drafting human rights standards and mechanisms for the implementation of the same
such as the HRC specialised treaty monitoring bodies (Committees), Rapporteurs, Special
Reps and Working Groups
(See Mark P Lagon&AmbonyClark Arend [Eds] (2014) Human Dignity and the Future of
Global Institutions. Georgetown University Press; Mark P Lagon& Ryan Kaminski, The
Global Human Rights Regime: Assessing and Renovating the Architecture in Mark P
Lagon&AmbonyClark Arend [Eds].
Human rights, governance, and development may all be linked to each other. Over the past
few decades increasing importance has been given to socio-economic and development rights
issues. Implicit was the presumption that dramatic progress had already been attained on
political and civil rights issues, yet the increasing importance given to socio-economic and
development rights also arose because of the increasing emphasis given to socio-economic
development by the global community. While the latter is indeed warranted, this research
suggests that if insufficient emphasis is being paid to political and civil rights issues, then the
pendulum may have swung a bit too far. First, this is because the evidence suggests that
protection of political and civil rights (and life protection) remains a major challenge in many
countries. Indeed, various indicators show checkered progress at best, since major violations
in fundamental physical (and life) protection, as well as in political and civil rights and media
freedoms, still prevail in many settings. And second, as importantly, our analysis also
suggests that media freedoms and political and civil rights matter significantly for the
attainment of socio-economic developmental rights. Consequently, a narrow focus on socioeconomic developmental rights per se may not suffice; instead substantial emphasis in the
political and civil rights will also be needed— not only because of its own intrinsic value, but
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also to further progress in achieving second generation human rights and related
developmental objectives. 32
Human rights are universal. This means that they are capable of being recognised and
enforced anywhere – universality. States owe the primary duty for protecting the rights of
their own citizens. This rather centric interpretation of states’ responsibility for human rights
leaves a gap in two respects: no responsibility in relation to non-citizenswithin or outside their
territories either through direct action or indirectly through their actions as participants in
global governance institutions to which they may be party; and no responsibility for their own
citizens when they are abroad. States have the obligation but not the capacity while global
governance institutions have the capacity but not the obligation.The state-centric distribution
of human rights responsibilities is parochial and defeats the very essence of the cardinal
principle of ‘university’ of human rights. A graphic illustration is the case study below.33
32
See generally, Kaufmann, Daniel, ‘Human Rights, Governance, and Development An empirical perspective’.
At: http://siteresources.worldbank.org/EXTSITETOOLS/Resources/KaufmannDevtOutreach.pdf (accessed 12
September 2016)
33
Ibid, pp. 11-13
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Haitian Case study
In 2010, President Clinton tendered an apology for pushing dramatic tariff cuts on U.S. rice imports to Haiti at
the expense of Haitian farmers during his time in office. Testifying to the Senate Foreign Relations Committee on
March of 2010 Clinton declared that ‘It may have been good for some of my farmers in Arkansas, but it has not
worked. It was a mistake… I had to live everyday with the consequences of the loss of capacity to produce a rice
crop in Haiti to feed those people because of what I did; nobody else.’
As is made crystal clear by this example, in defending the economic interests of farmers in Arkansas, President
Clinton took himself to be discharging his obligation to protect and promote the rights of citizens in his own
country. But in light of the humanitarian catastrophe following the collapse of rice production in Haiti, he came
to recognize his direct responsibility in hampering the human right to food of Haitian citizens. However,
according to the current distribution of human rights obligations, it is hard to accommodate Clinton’s claim of
responsibility which is at the core of his apology. From the perspective of international human rights law, there is
no specific legal obligation that Clinton failed to discharge. Since he is not a representative of Haitian citizens, he
is not responsible for protecting their interests and rights. From a political perspective, his apology is even more
puzzling, since Clinton certainly discharged his obligation to defend the interests and rights of those to whom he
is politically accountable, namely, the citizens of his own country. Had he failed to do so in international
negotiations, he would have faced adverse political consequences at home. Moreover, he was exercising this
obligation within the legal parameters of the principles of free trade established by the WTO – principles which
call for the elimination of tariffs on imports and other similar trade barriers. With his apology, Clinton is clearly
suggesting that he did something wrong and that he is the one responsible for it, but neither of these claims make
sense within the standard state-centric ascription of responsibilities for human rights protections currently
recognized by the international community. According to this state-centric interpretation neither the US
government nor the WTO have a legal obligation to protect the human rights of Haitian citizens. Officials from
Haiti are the only ones responsible for their protection. But wait! If this is the case, then there is actually no gap
in the distribution of human rights obligations after all. Shouldn’t Haitian officials be held accountable by the
international community for their failure to discharge their obligation to protect their citizens’ human right to
food? Didn’t they fail to protect and promote the human rights of their own citizens in allowing such a
humanitarian catastrophe to happen? Actually, it is hard to argue that they did. For if they had refused to bring
Haiti’s trade policies in line with the WTO agreements and accept the recommendations of the IMF and the
World Bank then the economic consequences would have been even more devastating for Haitian citizens. It does
not take a former head of State like Clinton to see what is wrong with this picture. Precisely the fact that none of
the actors involved failed to discharge their respective obligations indicates that, for cases like this one, the
current distribution of human rights obligations impairs the effective protection of human rights. For the actors
who have the legal obligation to protect the human rights of their citizens – individual states – may not have the
effective capacity to do so and the actors who do have the effective capacity – the WTO, IMF or the World Bank –
do not have the obligation.
This Haitian case above points to a serious structural incoherence in current human rights
practice. However, as Cristina Lafont observes,
‘[h]uman rights are not simply rights worthy of protection. They are those
rights (1) whose protection can be meaningfully achieved by institutional
means, and (2) whose actual or anticipated violation provides a (defeasible)
reason for some type of action against the violator by the international
community.’34
If states’ responsibility of protection of human rightsgenerally is limited of centrism,
then socioeconomic rights stand an even worst chance. Socioeconomic rights are
programmatic rights which depend on states available resources for fulfilment and so in most
countries.Socioeconomic rights are generallynot directly enforceable under most national
34
Lafont, C (2012) ‘Global Governance and Human Rights’, Spinoza Lectures, Van Gorcum, p. 30
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constitutionsin Africa, 35 unlike their civil and political counterparts,since they are considered
mere ideals or standards or principles under directives of state principles,only to be fulfilled
on the adoption of relevant policy measures and the availability financial resources.
Hence,they are not immediately enforceable and justiciable rights. This means though second
generation rights which impose essentially positive obligations on the state, have been
carefully deprived on this obligation in favour of state political discretionary measures.
Amongst other arguments against the direct enforceability of socioeconomic rights is the fact
thet they are imprecise, contextualand costly. This not the place to revisit either the nature or
the debate for or against the justiciability of socioeconomic rights. Suffice to note here that
the very fact that human rights are indivisible and interrelated means that all of them should
unavoidably receive the same treatment. Besides, the African Charter on Human Peoples’
Rights (ACHPR), for example, has rejected any distinction between civil and political rights
and socioeconomic rights, thus putting both sets of rights on the same pedestal of states’
responsibility. The preamble of the ACHPR lays down the matrix by expressing the
conviction that civil and political rights cannot be dissociated from socioeconomic rights
since the satisfaction of the latter is a guarantee for the enjoyment of the former. 36Nowhere is
it expressly stated in or can it be inferred from the UDHR or the ICESCR that socioeconomic
rights are lesser or second class rights to civil and political right and therefore cannot be
subjected to direct applicability.Meanwhile, growing jurisprudence particularly in the Indian
courts tends on the same route that by fulfilling one generational right, another in the other
generation is indirectly fulfilled.However, consensus is still lacking as other jurisdictions
reluctant in this regard. India and Nigeria, for example, have constitutional provisions that
disregard socioeconomic rights, but the Indian courts have been more assertive of the
indivisibility of human rights and state’s obligation to protect socioeconomic rights. In
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,37 the Supreme Court
clearly made this nexus between this two sets of rights thus:
‘The right to life includes the right to live with human dignity and all that
goes with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself
in diverse forms, freely moving about and mixing and comingling with
fellow human beings. The magnitude and components of this right would
depend upon the extent of economic development of the country, but it
must, in any view of the matter, include the bare necessities of life and also
the right to carry on such functions and activities as constitute the bare
minimum expression of the human self.”
35
With the exception of those of South Africa, Mozambique, Kenya, Senegal etc. For the situation in Cameroon
see Akonumbo, A ‘Indirect Constitutional Protection of Economic, Social and Cultural Rights in Cameroon’. In
Danwood, C and Chenwi, L (Eds) (2016).The Protection Economic, Social and Cultural Rights in Africa:
International Rehional and National Perspectives. UK: Cambridge University Press, 527 -349.
36
Odinkalu C, A. ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and
Peoples’ Rights’ in Evans, M. and Murray R. (Ed). (2002). TheAfrican Charter on Human and peoples’ Rights:
The System in Practice, 1986-2000, Cambridge University Press,p.188.
37
(1981) 2 SCR 516 at 529 B-F. see also, Mohini Jain vs State Of Karnataka And Ors, infra
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What this means is that in some countries, a socio-economic right (such as the right to shelter
or health) is under a direct of state policy, the court can cause it to be justiciable and
immediately enforceable, just like a civil and political right. Meanwhile, in others, any
attempt by the courts in this direction would be seen as an usurpation of legislative function.
The Nigerian case of Anthony Okogie v. Governor of Lagos,38is an example. Here, the
Nigerian Court of Appeals ruled that socioeconomic rights were parliament’s responsibility,
not the courts’. Such un-uniformed approaches in the treatment of socioeconomic rights
certainly weakens the case for a universal and definite consensus on states’ non-derogable
positive obligation to protect these rights, at least from the minimum core content
perspective.39National divergences will be likely transposed within global governance
institutions, whose policies sometimes lack consensus from a human rights perspective.
The Haitian case above points to a serious structural incoherence in current human rights
practice. By using various UN human rights agencies the international community is
supposed to monitor states and to hold them accountable for any failure to protect the human
rights of their members. However, at the same time, the international community may also
use other UN agencies like the World Bank or the IMF to impose structural adjustment
programs (SAPs) without any obligation to check whether these programs undermine the
ability of recipient states to protect the most basic human rights of their members. But again,
those agencies have been blamed for being responsible for the violation of socioeconomic
rights in countries where they have imposed constraining SAPs.
Apart from humanitarian contexts, socioeconomic rights are global in terms of universal
recognition but not in terms of implementation (effective protection) beyond national borders
as a result of state-centric interpretation of human rights obligations. Hence, they have only
been relatively subjected to global governance.Global governance institutions have not been
helpful in this direction either as they have no obligation to have the rights implemented. As
such, they canrather push states to adopt policies that violate socioeconomic rights. States
have the obligation but have failed to jointly implement it within or through global institutions
to protect the rights globally. However, if states are unwilling to protect human rights,
particularly socioeconomic rights, nationally, from the standpoint the state-centric
interpretation of obligations, then they can definitely not accept to compel themselves to do so
through global governance structures wherein they are members.
38
39
3 (1981) 2 NCLR 337.
See General Comment No. 3 of the Committee on Economic Social and Cultural rights.
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4. ENVIRONMENT AND SUSTAINABLE DEVELOPMENT AREAS OF FOOD
SECURITY AND SOCIALLY INCLUSIVE GREEN GROWTH
Notion of sustainable development
According to the report ‘Our common future’ by Ms. Harlem Brundtland, sustainable
development is defined as development that satisfies the needs of the present without
compromising the ability of future generations to satisfy theirs. This report, published in
1987 by the United Nations World Commission on Environment and Development
(Brundtland Commission), insists on the need to protect the diversity of genes, species, and
all terrestrial and aquatic ecosystems in nature. This is possible in particular via measures to
protect the quality of the environment, and by the restoration, development, and maintenance
of habitats that are essential to species. In other words, it is the rational management of
human, natural, and economic resources that aims to satisfy the essential needs of humanity in
the very long term.40
Sustainable development implies the fulfilment of several conditions: preserving the overall
balance, respect for the environment, and preventing the exhaustion of natural resources.
Reduced production of waste and the rationalisation of production and energy consumption
must also be implemented. Sustainable development is presented as a more or less clean break
from other modes of development, which have led and are still leading to worrying social and
ecological damage on both a worldwide and a local scale. In order to be sustainable,
development must combine three main elements: fairness, protection of the environment, and
economic efficiency. A sustainable development project must be based on a better-developed
mode of consultation between the community and the members it comprises. The success of
such a policy also depends on consumers accepting certain constraints and citizens observing
certain requirements with regard to transparency and participation.
4.1 Sustainable development and global governance issues
There is no denying that the interdependence of modern-day economies means that
environmental problems must be dealt with on a worldwide level, which does not simplify the
implementation of the necessary strategies, particularly because of differences in levels of
development. The aim of sustainable development is to define viable schemes combining the
economic, social, and environmental aspects of human activity. These three areas must
therefore be taken into consideration by communities, companies, and individuals. The
ultimate goal of sustainable development is to find a coherent and long-lasting balance
between these three aspects. In addition to these three main factors, there is a transverse
consideration, which is essential to the implementation of policies and actions with regard to
sustainable development: good governance. Governance consists in the procedures of the
decision-making process. In matters of sustainable development, the consensus of all the
participants in society is required in order to define objectives and implement them: private
and public sector companies, associations, NGOs, unions and citizens.
40
See generally, http://www.legrand.com/EN/sustainable-development-description_12847.html
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The concept of sustainable development is based on a set of requirements. It must allow the
basic needs of present and future generations to be fulfilled with regard to demographic
constraints, such as: access to water, education, health, employment, and the fight against
hunger or malnutrition. Another aim of this type of development is to improve quality of life,
which involves easier access to medical care, social services, culture, and therefore also social
well-being. In addition, respect for rights and freedoms and the promotion of green growth
and new forms of renewable energy such as wind, solar, and geothermal power, are important
aspects of sustainable development. Sustainable development must allow the planet’s
resources and condition to be protected for future generations and natural assets to be shared.
The concept of sustainable development also involves narrowing the gaps between rich and
poor countries, insofar as these gaps, if maintained or accentuated, could be the cause of
violent conflict, which by its very nature leads to regression rather than development.
4.2 The necessary link between food security and sustainability41
Threats to global food security present a challenge that most agree is only getting worse. The
possibility of achieving a food secure world without sustainable development is highly
debated in policy and academia. A recently published article in the journal of Public Health
Nutrition explores this notion along with the evolution of food security from the 1970s to
present day. In an analysis of more than 80 articles, theauthors posit that one cannot exist
without the other. This conclusion sheds light on previously unidentified challenges to food
security, such as rural transportation, infrastructure, and even diets.
The concept of food security has grown over time. In the 1970s the focused was solely on
supply due to the extreme instability of agricultural commodity prices. Over time, it expanded
to include food access and nutrition, embracing the critical needs of vulnerable populations.
By 2001, the definition of food security had adopted nutrition and evolved to its most present
definition: a situation that exists when all people, at all times, have physical, social and
economic access to sufficient, safe and nutritious food that meets their dietary needs and food
preferences for an active and healthy life.
The authors argue that regional economic and social conditions are root causes of hunger, and
that a transition toward sustainability can help achieve global food security. In 2009, the
Committee on World Food Security (CFS) worked to ensure that sustainable food systems
address factors such as price volatility, climate change, biofuels, and food waste,is currently
estimated as up to one-third of produce. This wider scope helps to identify root factors such as
diets, water use, and infrastructure that ultimately contribute to food insecurity. For example,
75 percent of Tanzanians are farmers in rural regions where 90 percent of the roads are
unpaved. For many countries in the global south, accessibility depends on the transport
infrastructure. Less roads means reduced food access.
41
See David, E. Mccarthy, D http://environment.yale.edu/yer/article/the-evolution-of-food-security-to-includesustainability-#gsc.tab=0ECEMBER 3, 2015 (accessed 22 September 2016)
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A major challenge in achieving sustainable food systems is that food security means different
things to different nations. Because of this, world nations have yet to agree on a set of
objective multinational indicators. To overcome this barrier, the Food and Agricultural
Organization of the United Nations (FAO), along with the International Fund for Agriculture
Development and the World Food Programme, have been working on a suite of universal
food security indicators. Their aspirations are to develop a set of gages that transcend all the
dimensions of food security. With the addition of environmental and sustainability factors, the
hope is to create the long-term conditions for a food secure future.
In this process, FAO also identified relationships between the collective actions of household
food consumption and how individual dietary trends drive food production. FAO illustrates
how water, carbon, and nitrogen footprints are attached to our food. For example, the distance
food has to travel to get to consumers’ plates or the amount of water required to cultivate it.
The authors recognize the impacts that our diets have on the environment and argue for more
responsible consumption.
Defined in 2010, sustainable diets are low in environmental impact. They contribute to food
and nutritional security while reducing intergenerational health impairments. When adopting
a sustainable diet, people are made aware of plate portions and their direct correlation to food
waste. Consumption trends can increase pressures on land, water, and genetic resources. To
take up a sustainable diet is both protective and respectful to biodiversity and ecosystems by
optimizing natural and human resources.
The authors’ primary argument is that sustainability needs to be an integral part of food
security planning. They infer that sustainable improvements in food security would require a
radical transformation in society’s approach to the environment, renewable energy sources,
population growth, agricultural research, distribution of rights, and entitlements. It is a
reasonable conjecture that large-scale population displacement is a possibility in the near
future. Climate change is the worst threat to food security and the projections are devastating.
Soon, our agricultural practices may not be able to meet the world’s demand for food. The
absence of sustainability measures today implies a social and moral responsibility from
governance, policy makers, farmers, and consumers to do their part in combating world
hunger.
4.3 Inclusive green growth
Green growth is growth that is efficient in its use of natural resources, clean in that it
minimizes pollution and environmental impacts, and resilient in that it accounts for natural
hazards and the role of environmental management and natural capital in preventing physical
disasters. There is no single green growth model. Green growth strategies will vary across
countries, reflecting local contexts and preferences—but all countries, rich and poor, have
opportunities to make their growth greener and more inclusive without slowing it.
Current growth patterns are not just unsustainable but they are also deeply inefficient. As a
result, they stand in the way of sustainable development and its objectives of social,
environmental, and economic sustainability. Growth drives poverty reduction and improved
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social outcomes, such as better health and education and greater equality of opportunity,
which are conversely good growth.
What can be done to turn this situation around? – Inclusive green growth
For the past 250 years, growth has come largely at the expense of the environment and the
damages are far reaching and beginning to threaten both growth prospects. Growth needs to
be inclusive. Inclusive green growth is not a new paradigm. Rather, it aims to operationalize
sustainable development by reconciling developing countries’ urgent need for rapid growth
and poverty alleviation with the need to avoid irreversible and costly environmental damage.
As such, efforts to foster green growth must focus on what is required in the next five to 10
years to sustain robust growth, while avoiding locking economies into unsustainable patterns,
preventing irreversible environmental damage, and reducing the potential for regret.
Moreover, rapid action is needed to keep the costs of greening growth manageable and avoid
irreversible losses. This urgency applies to developing and developed countries alike:
• Developing countries - which will account for the vast majority of global growth in income,
infrastructure, and population in the coming decades - need to choose whether to build right
or risk facing costly policy reversals in the future.
• High-income countries - which, with 16 percent of world population, still account for more
than 75 percent of global consumption and 41 percent of global emissions of carbon dioxide
(CO2 - must act according to their responsibility. Most important are changes in the patterns
of consumption and production that boost demand for green technologies. This is essential to
stimulate technological innovation and the scale of production necessary for prices to drop
and green technologies to become competitive. Thus, Germany’s aggressive solar feed-in
tariff was critical in boosting global demand for solar panels, thereby reducing their cost.
How?
As to how to make growth greener, textbooks going back at least to the 1950s offer the basic
instruments, with environmental taxation, norms, and regulations being the main tools of a
green growth strategy. Today, technology is making it easier to implement these measures
and monitor their impacts. However, making these measures work is complex in real-world
settings plagued by governance failures, market failures, and entrenched interests and
behaviours. It requires complementary policies, including public investments, innovation and
industrial policies, education and training, labour market reforms, and communication.
Making matters worse is the urgency with which these policies must be designed and
implemented, especially in the face of enormous uncertainty about the future climate and
technology.
Continued rapid population growth in several developing regions further complicates matters.
Current projections are that the world will reach some 9 billion people by 2050. This implies
that even more rapid growth is needed to tackle poverty, and more aggressive social policies
are needed to ensure that children, especially girls, and mothers receive the care, nutrition,
schooling, and employment opportunities they need. And, of course, this demographic
challenge puts further stresses on the environment, particularly because much of the rapid
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population growth is happening in environmentally fragile locations, notably in Africa. Thus,
growth is a necessary, legitimate, and appropriate pursuit for the developing world, but so is a
clean and safe environment. Without ambitious policies, growth will continue to degrade the
environment and deplete resources critical to the welfare of current and future generations.
And what about the argument that ambitious policies would be too costly and destroy jobs?
The evidence reviewed in this report suggests that there is plenty of room to green growth
without slowing it.
If green growth is necessary, efficient, and affordable, what is impeding it? Across countries
and income levels, a mix of governance and market failures, complex political economy,
entrenched interests and behaviours, and financing constraints are significant obstacles.
Further, despite much rhetoric to the effect, green growth is no panacea and will not substitute
for a good business environment and the reforms that are needed to promote growth and
protect the poor
So greening growth requires good growth policies adapted to political economy realities and
entrenched behaviours. It entails reforms in the patterns of pricing, regulation, and public
investment that trigger resistance. It requires complex changes in behaviours and social norms
because, even with efficiency gains and new technology, it is unlikely that middle-class
consumers (whether in rich or in poor countries) can stick to current consumption patterns.
And it requires knowing when to go for the politically expedient rather than the economically
optimal, carefully deploying social marketing tools and making financial tools available.
Complicating matters is the fact that opportunities to green growth at a manageable cost are
not evenly distributed over time. This creates urgency for some, though not all, green policies
and is one of several arguments for why “grow dirty and clean up later” is not a good option
even for poor countries. What follows is a three-prong strategy for tackling entrenched
interests and behaviours, financing constraints, and the risk of lock-in.
5. LEGAL FRAMEWORK FOR CORPORATE RESPONSIBILITY FOR
VIOLATIONS OF HUMAN RIGHTS
Generally, companies recognise the importance of the rule of law in the context of their
investments and operations around the world. The importance of a transparent, wellfunctioning and just legal system has been taken in consideration for attracting investments.
The Guiding Principles are certainly a necessary legal resource in the International law
scenario. States and companies are asked to operationalise their responsibility for human
rights. Nevertheless, the lack of direct enforceability plus the wide decisional autonomy left to
the states raise doubts on their effectiveness. Nowadays, the constitutional provisions of some
countries such as India are horizontally applicable against companies, for preventing abuses
by business enterprises. However, the degree of fault required for a company’s responsibility
could just as easily be a negligence or strict liability standard.
There are certainly challenges in trying to strike a balance between business interests and
human rights standards. The focus here is on the links between human rights due diligence – a
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key process for companies to know and show that they respect human rights – and legal
compliance, including with corporate governance and securities laws.
States have the primary responsibility to protect, respect and fulfil human rights recognized in
international law as well as national law, including ensuring that business enterprises respect
human rights.While business enterprises and States do not share the same responsibilities in
regard to human rights, they are required to respect human rights recognized in international
law as well as the national law of the countries within which they operate and which are
within the limits of their operations and spheres influence.This is rightly so because business
enterprises have many opportunities of interaction with the individual, as an investor;
employer; manufacturer and supplier of goods and services; consumer of raw materials inter
alia, which provide opportunities for rights violations.
Furthermore, in this interaction the business enterprise is more often than not the more
powerful party owing to its financial superiority as well as the legal protection afforded by the
doctrine of corporate personhood that shields the owners from personal liability.
Consequently, the need to keep this unequal power in check and to ensure that it is not
exercised to the detriment of human rights cannot be overstated. This requires the State to put
in place effective preventive and adjudicative mechanisms to mitigate and redress abuse by
way of legislation, policy, and other regulations that clearly set out expectations for
businesses operating within its territory.
Corporations have a strong impact on the realisation of human rights. ‘In terms of potential
impact, decisions and activities of many large multinational corporations are capable of doing
more harm to persons and resources in ways that thwart human rights than decisions and
activities of some national-states’.42These impacts are not merely confined to labour rights
and environmental impact but span the full panoply of fundamental rights. 43 In this context, it
becomes necessary for those concerned with fundamental rights to address the responsibilities
of corporations for the protection and promotion of human rights. A number of questions
immediately present themselves:
 Do corporations have responsibilities for the realisation of human rights? If so, on
what basis do corporations have such responsibilities?
 What is the content of the duties that corporations have for the realisation of
fundamental rights?
 What legal mechanisms should be adopted to enforce the responsibilities of
corporations for human rights violations.
Students taking this course should further research here looking at:
1. Voluntary Approaches to corporate liability
42
Paust, JJ (2002) ‘Human Rights responsibilities of private corporations’ Vanderbilt Journal of Transnational
Law 35: 801, 802.
43
Some of these impacts are documented in a report by Human Rights Watch entitled On the Margins of Profit:
Rights at Risk in the Global Economy, February 2008 (http://hrw.org/reports/2008/hhy0208/) at 7.
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2.
OECD Guidelines
ILO Tripartite Declaration
UN Global Compact
Company Codes of Conduct
Infra Voluntary Approaches: Towards binding obligations
(i) Transnational human rights litigation – The US Aliens Torts Claim Act (Doe v
Unocal; Kiobel v Royal Dutch Petroleum; Wiwa v. Royal Dutch Petroleum;
and Wiwa v. Shell Petroleum Development Companycases)
(ii) The U.N. “Protect, Respect, Remedy” framework (U.N. Framework also The
Ruggie Framework
In 2005, the UN Secretary-General Kofi Annan appointed Professor John Ruggieas UN
Special Representative on business and human rights. Secretary General Ban Ki Moon
confirmed the assignment. One of Professor Ruggie’s main tasks was to “identify and clarify
standards of corporate responsibility and accountability for transnational corporations and
other business enterprises with regard to human rights”. Accordingly, in June 2008 Professor
Ruggie presented the UN “Protect, Respect and Remedy” Framework to the Human Rights
Council.
The UN framework is an important milestone in the search for a legal basis for corporate
accountability for human rights abuses.The U.N. Framework rests on three distinct yet
complementary pillars: the state duty to protect against human rights abuses by third parties,
including business, through appropriate policies, regulation, and adjudication; the corporate
responsibility to respect human rights, which means to act with due diligence to avoid
infringing on the rights of others; and greater access by victims to effective remedy, judicial
and non-judicial.
The U.N. Framework has already enjoyed considerable uptake, interacting with a range of
processes well beyond the United Nations itself. These include the ISO k26000 standard on
social responsibility, the updating of the OECD guidelines for multinational enterprises, the
International Finance Corporation revision of their Performance Standards, work with 19
leading law firms from around the world on how human rights considerations are addressed in
corporate law across 40 jurisdictions, as well as road-testing of company-based grievance
mechanisms by leading companies in China, Colombia, Russia, South Africa and Vietnam.
Corporate responsibility to respect, human rights due diligence and legal compliance
The term “responsibility” to respect rather than “duty” is meant to indicate that respecting
rights is not an obligation current international human rights law generally imposes directly
on companies, although elements may be reflected in domestic laws. At the international level
it is a standard of expected conduct acknowledged in virtually every voluntary and soft-law
instrument related to corporate responsibility, and now affirmed by the Council itself when it
endorsed the U.N. Framework.
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The corporate responsibility to respect human rights means to avoid infringing on the rights of
others, and addressing adverse impacts that may occur. It applies to all companies in all
situations, It exists even if national laws are poorly enforced, or not at all.
Human rights due diligence is a potential game changer for companies: from “naming and
shaming” to “knowing and showing.” Naming and shaming is a response by external
stakeholders to the failure of companies to respect human rights. Knowing and showing is the
internalization of that respect by companies themselves through human rights due diligence.
Companies routinely conduct due diligence to satisfy themselves that a contemplated
transaction has no hidden risks. Starting in the 1990s, companies added internal controls for
the ongoing management of risks to both the company and stakeholders who could be harmed
by its conduct — for example, to prevent employment discrimination, environmental damage,
or criminal misconduct.
Drawing on the features of well-established practices and combining them with what is
unique to human rights, Ruggie has laid out the basic parameters of a human rights due
diligence process. Because this process is a means for companies to address their
responsibility to respect human rights, it has to go beyond simply identifying and managing
material risks to the company itself, to include the risks a company’s activities and associated
relationships may pose to the rights of affected individuals and communities.
Considered in that spirit, human rights due diligence comprises four components: a statement
of policy articulating the company’s commitment to respect human rights; periodic
assessments of actual and potential human rights impacts of company activities and
relationships; integrating these commitments and assessments into internal control and
oversight systems; and tracking as well as reporting performance. Company-level grievance
mechanisms can contribute in two ways: under the tracking and reporting component of due
diligence they provide the company with ongoing feedback that helps it identify risks and
avoid escalation of disputes; they can also provide remedy, a means of alternative dispute
resolution.
Companies should bother about human rights.
Ruggie suggests a number of reasons.The first: due diligence can be a game changer for
companies. Knowing and showing is necessary for companies to demonstrate they respect
human rights. If they do not know, and cannot show, their claim is just that — a claim, not a
fact. Second, human rights due diligence can help companies lower their risks, including the
risk of legal non-compliance. There are situations in which companies currently harm human
rights and, at the same time, may be non-compliant with existing securities and corporate
governance regulations. This is because they are not adequately monetizing and aggregating
stakeholder-related risks, and therefore are not disclosing and addressing them.Such risks
stem from community challenges and resistance to company operations, typically on
environmental and human rights grounds. The evidence to date comes largely from the
extractive and infrastructure sectors, especially where companies operate in conflict-affected
or otherwise seriously contested contexts. But such internal control and oversight gaps likely
exist in other sectors as well.
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(iii) States’ Primary duty to protect human rights
3. The Role of Regional Human Rights Systems
(i) The Inter-American human rights system
(ii) The European human rights system
(iii) African human right system
4. National binding (constitutional) human rights obligations for businesses
See possibilities in the South African and Kenyan Constitutions
5. Possible avenues for corporate human rights violations
(i) Incorporating Human Rights Obligations into International Investment
Agreements
(ii) Imposing Human Rights Obligations on TNCsthrough Domestic Law
(iii) Holding TNCs Accountable through an International Tribunal with Special
Jurisdiction – creation of an international corporate tribunal
(iv) Using International Criminal law - ICC
**For further readings on the legal framework for corporations’ liability for and human
rights violations, See as a must:
-
-
-
Natalya, P &P Nussbaumer, (2009). ‘Beyond Impunity: Strengthening the Legal
Accountability of Transnational Corporations for Human Rights Abuses’. Working
papers Series. Berlin: Hertie School of Governance, (2009).
Wolfgang, K & M Saage-Maaβ (2010) ‘Corporate Accountability for Human Rights
Violation Amounting to International Crimes: The Status Quo and its Challenges’,
Journal of International Criminal Justice, 699 –724.
Kinley, (2009) D Human Rights and Corporations. England: Ashgate Publications Ltd
EU Report of 16 July 2106 on corporate liability for serious human rights abuses in
third
countries
(2015/2315(INI))
(http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+REPORT+A8-2016-0243+0+DOC+XML+V0//EN#_part1_def6)