Introduction
The defeat of Germany in the Second World War, and the subsequent birth of the United Nations in 1945 ushered in the modern human rights regime. Prior to this post-war era, human rights was not a salient feature in the parlance of international law, and for good reason; nation-states were guided by the civility of the ‘good-neighbor,’ which meant that ‘good-neighbors’ do not interfere or unilaterally intervene in matters of purely domestic character outside their territorial competence. Formally, the ‘good-neighbor’ ethos came under the umbrella of state sovereignty, and to a large extent, continued to dictate how states dealt with one another even after the advent of the UN, and the consequence on human rights movement remained unchanged: States continued to regard human rights as domestic matters that should be dealt with domestically, any outside intervention was considered ‘bad form’ and an affront to the norm of state sovereignty. That was then!
The United Nations, after a few decades of drafting conventions, covenants, protocols, and norm setting, has managed to ‘internationalize’ human rights, at least in normative terms. The implication of this achievement is enormous; for, it means that for the first time in human history, human rights has acquired a certain ‘universality’, and in so doing shed its overly confining character of domesticity. Since every state has signed at least one human rights convention or treaty, States can no longer legitimately use the shield of State sovereignty in cases of gross human rights abuses;1 human rights is now an international concern! On the same point, Buergenthal was sufficiently succinct: “Despite their vagueness, the human rights provisions of the UN Charter have had a number of important consequences. First, the UN Charter “internationalized” human rights. That is to say, by adhering to the Charter, which is a multilateral treaty, the state parties recognized that the human rights referred to in it are objects of international concern and, to that extent, no longer within their exclusive domestic jurisdiction.”2 But while the UN has a lot to do with this transformation of rights, other players in the field were just as effective. More on these other players in due course.
The thrust of this essay is that the confluence of rapid globalization of world affairs, the active participation of NGOs and international civil society in human rights discuss has hastened the internationalization of human rights, and as a consequence, the norm of state sovereignty in matters of human rights is rapidly losing significance, and with time, will ultimately become redundant; a faith accompli, if you will. While NGOs, and international civil society have been extraordinarily effective, in conjunction with the various organs of the UN, in ‘universalizing’ human rights in recent decades, my principal focus in this essay will be on the contributions in this regard by the modern phenomenon of ‘globalization’ masterminded by international civil society. In the following pages I will highlight the fact that globalization impacts all aspects of human rights, particularly in developing nations, and that such impacts are very different for different rights.
Globalization and Human Rights
Globalization, spurred by advancement in technology, may be defined as the enhancement of intimacy in the international community. The range of this intimacy is varied, and includes such staples of world affairs as economics, politics, culture, law, and technology. These aspects of world affairs are not new; what is remarkably recent, however, is how modern civil society has used science and technology to redefine, and drive world events. This is particularly true in the area of telecommunication; in the last decade alone, the world has suddenly become a ‘global village’ where consumption of information is almost instantaneous, and international trade and transactions are now akin to shopping in the ‘neighborhood.’ This remarkable transformation of the order of things has everlastingly changed the roles of political and economic actors on the world stage; gone are the days when governments jealously clung to the levers of information machineries, and can operate in near total secrecy; gone also are the days when governments, through their domestic policies, controlled the bulk of economic activities within its boundaries. As national boundaries become so porous as to become redundant, so too will the notion of state sovereignty.
But this is not to suggest that the state has become an ephemeral institution; very much to the contrary, it simply means that in the light of globalization, the state will need to redefine itself and its role in a modern society empowered and enlightened by advancing technology. It also means that the means by which it once controlled its domestic affairs have become marginalized. And herein lies the implication for human rights.
Civil and political Rights
Transnational corporations and institutions principally formed and controlled by international civil society have made remarkable use of advancing technology in the production and distribution of goods and services. The discovery and exploitation of new markets have made it possible for these transnational organizations to reach deep into the recesses of world economy, and with such leverage are able to influence or dictate outcomes in their dealings with national governments. This is particularly true in developing countries where economic activities are severely depressed, and economic might is revered. For many socially conscious transnational corporations, global power has meant a chance to advance the cause of basic human rights. They have achieved this by insisting that national governments abide by the rule of law, uphold the civil and political rights of its citizens, stop the use of torture and other inhumane treatment of political prisons, and hold free and fair democratic elections. While a difficult pill to swallow, governments notorious for their gross abuses of human rights have been known to acquiesce or risk the loss of significant economic aid. To the extent that transnationals are able to insist on these requirements, states can no longer claim exclusive jurisdiction over human rights.
Economic, Social and Cultural Rights
By insisting that governments in countries where their productive activities are engaged commit to the protection of basic human rights, transnational corporations have managed to advance the universality of only certain kinds of rights, specifically civil and political rights. These rights are by their very nature more malleable to the kind of pressures that transnationals can bring to bear on States. Unfortunately, however, the same pressures that have the potential to protect civil and political rights in developing countries can have the opposite effect on the economic, social and cultural rights of the indigenous people of the state. A two-edged sword indeed; very painful to push-in, and just as painful to pullout! Examples abound!
The essence of markets, and almost invariably that of transnational firms, is the effective allocation of resources with a view to profit maximization. Any other human sentiments or motives are necessarily secondary. With this objective in mind, entrepreneurs seek out new markets to develop and exploit, but in order to maximize their profit potential, they first must minimize their overall cost of production. It is in the pursuit of this objective that the goals of transnationals come into conflict with other kinds of human rights. In order to minimize cost, many transnationals form an unholy alliance with government officials (Shell in Nigeria),3 and this enables the exploitation of the natives by paying non-living wages, buying vital mineral rights at give away prices, and subjecting their indigenous workers to horrible working environments. But this is the good part of the entire experience; it gets worse! The more sophisticated transnationals soon discover that it is cheaper to dump their untreated chemical wastes in developing countries at a fraction of what it will cost to dispose of them in their country of origin. And so, for the promise of a non-living wage, and the opportunity to consume western products, natives are economically exploited, and exposed to toxic wastes. Thus, if they do not die from poverty-induced complications, poisons from toxic wastes will get them!
A more insidious form of exploitation or abuse of economic and social rights of the natives is not quite as detrimental, but nonetheless potent. This comes by way of bureaucratic corruption; corruption of public officials by transnationals in order to expedite business activities that would have taken much longer than the ‘Captains of industries’ are willing to bear. The end result is that bureaucratic corruption becomes rampant and endemic in these developing countries with the predictable consequences of graft, outright theft of public funds, and massive misallocation of the countries’ vital resources. A recount of a personal experience by the author will help put this phenomenon in the proper perspective.
Globalization and Bureaucratic Corruption in Sub-Saharan Africa: A personal Experience
At the outset, it will be helpful to put in proper context what I mean by bureaucratic corruption; and define the geographic parameters of my analysis. For expositional simplicity, I will focus on the incidence of bureaucratic corruption in Sub-Saharan Africa, and the attendant consequences on socio-economic development. While bureaucratic corruption, to be defined shortly, is not an exclusive domain of black Africa,4 it is however, one of the enduring peculiarities of the sub-continent that has perennially subdued economic and technological development.
Bureaucratic corruption, in its popular sense, is the misuse of the power of public office for personal gain in breach of laws that govern public servants and moral principles. In its basic form, it takes place when a government official demands and accepts bribes or kickbacks in performance of normal duties called for by the office. Bribery, which can be direct cash payments, gifts, or the promise of reciprocity in future transactions, is usually paid either: (1) to gain access to scarce government services, or (2) to avoid the cost of a government service. Bureaucratic corruption can, of course, be found in developed as well as in developing nations;5 however, its consequences are particularly more troublesome for developing nations with inadequate or poorly formed socio-political structures and weak judicial institutions. Because of its distortionary effects on resource allocation, entire economies are often severely weakened and debased as important decisions are guided not by prudent public policy but by ulterior agenda.
The author recalls two incidents that have striking similarities but differ only in degree. As a young graduate student in the early 1980s, I was stopped by the police for a traffic infraction at the early hours of a Saturday morning. After the usual preliminaries of asking for my driver’s license, and registration, he inquired about my nationality, where I was headed at that time of the morning, and what was I willing to do to discharge my immediate predicament. Sensing the tone of the inquiry, I tendered the customary apologies, and wondered out loud if it would be possible to make a charitable contribution to the ‘police fund.’ He said I could, and would be glad to pass-on my contribution to the ‘fund’. Ten dollars changed hands, and I was given the standard admonition to drive safely, and was allowed to leave. No official citation was issued, and neither was a receipt issued for my ‘donation.’ This occurred in Chicago.
Ten years later, I shipped forty units of power generators to Nigeria for a project. The transatlantic shipment took four weeks; however, it took another five weeks to get the goods through Nigerian ports authorities. First, the goods had to be inspected and cleared by the attending Customs officer. The problem, however, was how to locate him. But at last it took an inordinate expenditure in time and financial resources to finally meet with him; mainly because each time my clearing agent came calling he was dutifully informed by low-ranking officials that he was not in the office. In other words, he needed to be persuaded, and that was a clue that more money was being demanded. After a week, and having disbursed approximately US$700 to his assistants, the official papers were suddenly produced, completed, and signed. Meanwhile, the container of goods was cleared and uninspected. The goods must now be further inspected and cleared by the navy, and national security agents. The same ordeal was exacted on my agent and me; the only variation here was that we now had the opportunity to haggle and bargain on the amount of bribe to be paid.
Exactly five weeks after the goods arrived in Nigeria, we were given complete clearance to remove them from the port. Our celebration was short-lived; because in less than an hour after leaving the port, we were stopped by the police for inspection. Two hundred US dollars equivalent were demanded and paid; again, as in other instances no actual inspection was made. Within five miles of this ‘inspection’ was another police check- point. Realizing that we had fifteen more miles to travel, it became necessary to pay and retain this second group of police officers as escorts. Needless to say, the original objective of the project was thoroughly frustrated, and ultimately suspended. The point of this narrative is that in many instances, the difference in the incidents of corruption in developed as well as in developing countries is a matter of degree. The differential economic impact, however, is remarkably significant. Thus, with the economy thoroughly debased, economic, social, and cultural rights become non-issues.
Conclusion
That modern human rights movement has benefited from the globalization of world affairs is unquestionable; that globalization has also marginalized certain kinds of human rights in underdeveloped countries is not in doubt. The issue now is whether on balance globalization has done more to advance the goals of international human rights, and the answer will be a qualified ‘yes.’ For one, it has empowered the once powerless through the delivery of near instantaneous information, and knowledge; this has enabled citizens of the world to question, challenge, and demand reform from their governments. International civil society, through entrepreneurial endeavors, has compelled governments in developing countries to institute democratic reforms that protect basic human rights even though some of their activities continue to have the opposite effect. NGOs have also played significant roles in internationalizing human rights. Through publicity, advocacy, and on-site inspections, International NGOs such as Amnesty International, and Human Rights Watch, continue to educate the world on human rights atrocities throughout the globe, and ‘shame’ governments into reform, while at the same time empowering the oppressed through concerted campaigns and legal assistance.
The end result of all this is that States can no longer consider human rights as purely domestic matters; States must now contend with the international community when gross violations of rights occur within their boundaries. “At least,” says David Forsythe, “it now can be said that states have accepted a number of new legal obligations and that numerous ‘cases’ exist which can be used as ‘precedents’ should actors choose to do so in pursuit of human rights values.”6 And I am sure they will; it is just a matter of time!
1 See generally Robert McCorquodale with Richard Fairbrother, Globalization and Human Rights; Human Rights Quarterly, 21.3 (1999), 73-766.
2 See Thomas Buergenthal, International Human Rights, 2nd. Edit., West Group, 1995, P. 35-41.
3 See The Economist, May 12, 2003
4 See Braibanti, Ralph, In Monday Ekpo’s Bureaucratic Corruption in Sub-Saharan Africa: “Toward a Search for Causes and Consequences”, University Press of America, 1979.
5 See De Soto, Hernando, The Other Path. New York: Harper and Row, 1989.
6 See David Forsythe, The United Nations and Human Rights, 1945-1985.
