Published online by Cambridge University Press: 27 February 2017
In September 2007, Buddhist monks, students, democracy campaigners, and ordinary men, women, and children took their lives into their hands in the streets of Yangon, Myanmar, to protest against the ruling military regime. The protests had begun a month earlier with peaceful calls by the monks for the ruling authorities to reinstate subsidies on fuel and oil and alleviate crippling commodity prices, but quickly snowballed into mass demonstrations for democratic and social reforms and the release of all political prisoners.
1 Crackdown: Repression of the Popular 2007 Protests in Myanmar , Hum. Rts. Watch, No. 18(C), Dec. 2007, at 65Google Scholar (quoting Yen Myat Soe, eyewitness (Oct. 12, 2007)), available at http://www.hrw.org/sites/default/files/reports/burmal207web.pdf.
2 Id. at 66 (quoting Kyaw Zin Min (Nov. 11, 2007)).
3 The resident coordinator system coordinates all organizations of the United Nations system dealing with operational activities for development in the field, and aims at bringing together the different UN agencies to improve the efficiency and effectiveness of those activities at the country level. Resident coordinators are funded, appointed, and managed by the United Nations Development Programme (UNDP), described infra note 7. However, they are also the designated representatives of the secretary-general for development operations, and to that extent represent the entire UN system, including the Secretariat and specialized agencies.
4 The mandate of the OHCHR, the lead agency for human rights in the UN system, includes coordinating and mainstreaming human rights in all areas of the system’s work, including development. See Vienna Declaration and Programme of Action, pt. IIA, paras. 17-18, at 33-34, UN Doc. A/CONF.157/24 (Part I) (Oct. 13, 1993).
5 This was the view of the UNDP, as reportedly expressed to journalists who had questioned the UNDP’s position on human rights abuses in Turkmenistan in 2006. The UNDP spokesperson noted that the UNDP maintains a presence in all UN member states in the developing world and that its commitment to its work in those countries has “never been contingent upon nor construed as an endorsement of” their governments’ policies or practices. “The UN agencies which have the mandate of reviewing and responding to [human rights violations]—UNESCO and the Office of the High Commissioner for Human Rights—have spoken out clearly [and] forcefully on such cases on behalf of the Secretary-General and the entire UN system.” Matthew, Russell Lee UN Panel’s “Coherence” Plan Urges More Power to UNDP, Despite Its Silence on Human Rights , Inner City Press, Nov. 9, 2006, at http://www.innercitypress.com/unhql10906.html.Google Scholar
6 There are some clear exceptions, such as UNICEF‘s mandate in the area of child protection, and, depending upon one’s definition of human rights, the International Labour Organization’s labor surveys and even the UNDP’s reporting and monitoring of human development and the Millennium Development Goals (MDGs). But in the UN system, protection is often confined to monitoring and reporting, rather than preventing and remedying violations. For more on the distinction between protection and classic promotional work, see text at notes 134-40 infra.
7 UNDP, Capacity Development: Empowering People and Institutions: Annual Report 2008, at 3 (2008), available at http://www.undp.org/ Google Scholar [hereinafter UNDP 2008 Report]. A subsidiary body to the UN General Assembly and the Economic and Social Council (Ecosoc), the UNDP was created in 1966 from the merger of the former UN Technical Assistance Board and the United Nations Special Fund. The UNDP’s four main areas of work are poverty reduction, democratic governance, crisis prevention and recovery, and environment and sustainable development. Its Executive Board consists of thirty-six countries whose representatives are elected for three-year terms from within ECOSOC. The United States is the UNDP’s largest donor, and Scandinavian countries typically account for over a quarter of its total core funds. See J. Samuel, Barkin International Organization: Theories and Institutions 106–08 (2006)Google Scholar; Craig N., Murphy The United Nations Development Programme: A Better Way? (2006)Google Scholar. Murphy’s officially sponsored account, while impressive in scope, has been criticized in some quarters as biased toward the UNDP and failing to focus on local-level perspectives and impacts. See, e.g., Joseph, Kraus Afr. Stud. Q., Spring 2007 (book review), at http://web.africa.ufl.edu/asq/v9/v9i3al0.htm Google Scholar; James, Langton U.N. Shells out£290,000 on a Paperback , Daily Telegraph, Dec. 16, 2006, available at http://www.telegraph.co.uk/news/worldnews/1537182/UN-shells-out-290000-on-apaperbacL.html Google Scholar. But see Gillian, Youngs 50 Development 153 (2007)Google Scholar (book review) (noting the UNDP’s important contributions to human development theory, while suggesting, at 159, that Murphy’s account may not have been sufficiently critical in orientation).
9 Although there is no universally agreed-upon definition of “mainstreaming” in the United Nations, the general purpose is usually to bring an important or “crosscutting” issue from the periphery to the center of policymaking or programming. It is a strategy for bringing about desired change, rather than an end in itself. See Fredrik, Uggla Mainstreaming at Sida: A Synthesis Report 7 (Sida Studies in Evaluation No. 5, 2007), available at http://www.oecd.org/dataoecd/0/40/39070485.pdf Google Scholar; Irish, Aid Towards Poverty Reduction: Mainstreaming Strategy 2007-2009 (prepared by Cathy, Gaynor & Mary, Jennings Mar. 2007), at http://www.irishaid.gov.ie/Uploads/Mainstreaming%20Strategy%20final%202007.doc Google Scholar.
10 GA Res. 60/1 (Oct. 24, 2005).
11 See infra notes 164-82 and corresponding text.
12 See Augustine, Mahiga (permanent representative of Tanzania) & Paul, Kavanagh (permanent representative of Ireland), System-Wide Coherence: Report of the Co-Chairs (July 21, 2008), available at http://www.undg.org/docs/9447/swcreport210708.pdf Google Scholar [hereinafter SWC Report]; see also GA Res. 62/277, annex, para. 2 (Sept. 15, 2008).
13 Executive Board of the UNDP and the United Nations Population Fund, UNDP Strategic Plan 2008-2011, Accelerating Global Progress on Human Development, UN Doc. DP/2007/43/Rev. 1 (May 22,2008) [hereinafter UNDP Strategic Plan 2008-2011].
14 The idea of regional groups first arose in the early 1960s to facilitate the work of the General Assembly and its subsidiary bodies, taking account of the expanding membership of the organization. The five groups established by amendment of the UN Charter in 1965 are Western Europe and Others (WEOG), Asia, Latin America and the Caribbean, Africa, and Eastern Europe, though they do not conform neatly to recognized geographic boundaries. The groups exist mainly for elections and to regularize information exchange, but other political groupings or caucusing groups have come to play an active role in policy matters. The Movement of Non-aligned Countries (NAM) originated in a conference organized by Marshall Tito in 1961 in Belgrade, and was intended to define a political grouping and foreign policy independent of the superpowers. Groupings also came to be defined more closely by economic interests, notably the Group of 77 (G-77) developing countries, which formed at the inaugural meeting of the UN Conference on Trade and Development in 1964. The latter two groupings now number 130 and 118 countries, respectively, out of a total UN membership of 191. For a more detailed history, see Miguel, Marinbosch Votes in the UN General Assembly 15–19 (1998)Google Scholar; Lawrence, Zlring Robert, E. Rlggs & Jack, Plano The United Nations: International Organization and World Politics 102–08 (2005).Google Scholar
15 The 1997 reform program of former secretary-general Kofi Annan brought human rights to center stage in UN reform, with the creation of four “executive committees” dealing with peace and security, economic and social affairs, humanitarian affairs, and development, and the high commissioner for human rights as an ex officio member of each. Annan’s 2002 and 2005 reform programs sought to link these institutional reforms to human rights capacity-building demands at the national level. His 2005 program (dubbed “In Larger Freedom”) was particularly noteworthy, resulting among other things in a doubling of the regular budget of the OHCHR, i.e., that part of the OHCHR’s budget drawn from assessed financial contributions of the member states. See Global Policy Forum, Secretary General Kofi Annan’s Reform Agenda—1997 to 2006, at http://www.globalpolicy.org/reform/initiatives/1997.htm.
16 This is as far as consensus in the TCPR setting could reach. GA Res. 62/208, pmbl. (Dec. 19, 2007).
17 Id., (TCPR); GA Res. 62/277 (Sept. 15, 2008) (SWC).
18 See, e.g., Farhat, Ayesha Statement on Behalf of the Group of 77 and China to the UNDP Executive Board on Agenda Item 4: UNDP Strategic Plan 2008-2011 (June 19, 2007), at http://www.g77.org/statement Google Scholar; Joint Coordinating Committee, Joint Statement by G-77 and NAM During the Informal Meeting of the General Assembly for the Consideration of the Report of the High-Level Panel on United Nations System-Wide Coherence and the Report of the Secretary General on Its Recommendations (Feb. 7,2008), <#http://www.centerforunreform.org/system/files/07+Feb+08+SWC+G77+%2526+NAM.PDF.
19 Official development assistance (ODA) refers to official, as distinct from private, flows of aid from donor to developing countries, with the aim of promoting economic development and welfare. ODA financing is concessional in character, having a grant element of at least 25 percent. Organisation for Economic Co-operation and Development (OECD), Glossary of Statistical Terms (n.d.), at http://stats.oecd.org/index.htm.Google Scholar
20 The United Nations Country Team includes all the UN agencies, funds, and programs located in a given country, working under the overall coordination and leadership of the resident coordinator.
21 The Human Rights Council, a subsidiary body to ECOSOC, is made up of forty-seven states and is responsible for strengthening the promotion and protection of human rights worldwide.
22 Interview with Charles Petrie, former UN resident coordinator in Myanmar, New York (Oct. 3, 2008) (on file with authors).
23 Statement of the United Nations Country Team in Myanmar, UN Information Centre, Yangon, Press Release (Oct. 25, 2007), at https://yangonunct.unric.org/ Google Scholar (follow “Latest News” hyperlink) (“The United Nations agencies working in Myanmar repeat their strong determination to help the country address poverty and suffering, and their underlying causes. The concerns of the people have been clearly expressed through the recent peaceful demonstrations, and it is beholden on all to listen.”).
24 Interview with Petrie, supra note 22.
26 Id. at 80.
27 Abby, Stoddard Adele, Harmer & Victoria, DiDomenico Providing Aid in Insecure Environments: 2009 Update , Overseas Development Institute [ODI], Humanitarian Policy Group, Policy Brief 34, Apr. 2009, at http://www.odi.org.uk/resources/download/3250.pdf Google Scholar. Attacks against humanitarian aid workers have increased sharply since 2006, with Darfur, Afghanistan, and Somalia accounting for 60 percent ofviolent attacks. This is symptomatic of a growing politicization of violence against aid operations in a small number of highly insecure contexts. The rise in attacks on UN aid workers is mainly attributable to the heavy casualties suffered by national staff and contractors, particularly truck drivers. The incident rate for UN international staff declined slighdy, indicating that the marked rise in the casualty rate among international staff was borne primarily by nongovernmental organizations.
28 UVIN, supra note 25, at 81.
29 See Administrative Committee on Coordination (ACC), Statement on the Role and Functioning of the Resident Coordinator System (1995), available at http://www.undp.org.cu/crmi/files/docs/undp_bcpr_rescoord.pdf Google Scholar; see also ACC, Guidelines on the Functioning of the Resident Coordinator System (Sept. 1999), available at http://www.undg.org/index.cfm?P=133 Google Scholar. The latter guidelines clarify, among other things, that UN operational activities should be “in conformity with the objectives and priorities of the Government and mandates and objectives of the [UNsystem] organizations,” and that resident coordinators’ functions should include policy dialogue, advocacy, and liaison with the OHCHR and civil society. Id., para. 9 (emphasis added). Human rights responsibilities are fleshed out more specifically in separate ACC guidelines, see note 140 infra. The resident coordinator function has since been endorsed by intergovernmental bodies in the context of the TCPR process, and to some extent the SWC process.
30 Intergovernmental decisions during the SWC process prompted moves to create a “firewall” between the programs of the UNDP and its support of the resident coordinator function, to safeguard the resident coordinator’s independence and representativeness of the UN system as a whole. See infra text at note 231. However, even in countries where there is a UNDP country director to run the UNDP’s programs, a falling out between the resident coordinator and government partners can seriously complicate project implementation and authorizations on the government side.
33 See, e.g., Jonathan, Steele Sudan Expels Top UN Official over War Reports , Irish Times, Oct. 23, 2006, at 9.Google Scholar
34 “Members of the Council deeply regretted the decision taken by the Sudanese Government to terminate the tenure of the SRSG ... in the way it did. The Members of the Council fully support the actions taken by the Secretary-General’s statement made by him in this regard.” Annan Confirms Pronk Will Serve out His Term as Top Envoy for Sudan, UN News Centre Press Release (Oct. 27, 2006), at http://www.un.org/apps/news/search.asp Google Scholar (statement by then Council president, Amb. Kenzo Oshima of Japan).
35 However, the former SRSG was critical of what he perceived as lack of sufficient support from both the United Nations and the Security Council. Weblog No. 40 (Jan. 14, 2007), at http://www.janpronk.nl/weblog/english/january-2007.html (“[T]he Sudanese decision had been clearly aimed at undermining the mandate given by the Security Council to the UN Mission in Sudan. . .. The Security Council does only talk. It does not act. The UN bureaucracy is afraid to risk friendly relations with a member state. This is exemplary [of] the relation between the Security Council and Sudan from the very beginning.”).
36 United Nations Office for the Coordination of Humanitarian Affairs, UN Rep Expelled After Comment on President’s AIDS Cure, IRIN Humanitarian News and Analysis (Feb. 23, 2007), at http://www.irinnews.org/report.aspx?ReportId=70351; Musa, Saidykhan Gambia Expels UN Rep over AIDS Cure Grills, Afrol News, Feb. 23, 2007, at http://www.afrol.com/articles/24450 Google Scholar.
37 UN Office for the Coordination of Humanitarian Affairs, supra note 36.
38 On interim administrations, see, for example, Frédéric, Mégret & Florian, Hoffmann The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities , 25 Hum. Rts. Q. 314 (2003)Google Scholar [hereinafter Mégret & Hoffmann, HR Violator?]. On the Security Council, see, for example, August, Reinisch Developing Human Rights and Humanitarian Law Accountability of the Security Councilfor the Imposition of Economic Sanctions , 95 AJIL 851 (2001)Google Scholar; John, Mueller & Karl, Mueller Sanctions of Mass Destruction , Foreign Aff., May 1999, at 43Google Scholar; and Roger, Normand Iraq Sanctions, Human Rights and Humanitarian Law , 26 Middle E. Rep. 40 (1996)Google Scholar. On peacekeeping, see, for example, Chiyuki, Aoi Cedric, de Coning & Ramesh, Thakur Conclusion: Can Unintended Consequences Be Prevented, Contained and Managed? in Unintended Consequences of Peacekeeping Operations 268 (Chiyuki, Aoi Cedric de, Coning & Ramesh, Thakur eds., 2007)Google Scholar; and Florian, Hoffmann & Frédéric, Mégret Fostering Human Rights Accountability: An Ombudsman for the United Nations? 11 Global Governance 43, 44–45 (2005)Google Scholar [hereinafter Hoffmann & Mégret, HRAccountability], And on refugees, see, for example, Guglielmo, Verdirame & Barbara, Harrell-Bond Rights in Exile: Janus-Faced Humanitarianism (Studies in Forced Migration, Vol. 17, 2005)Google Scholar.
39 Amerasinghe, C. F. Principles of the Institutional Law of International Organizations 399, 401 (2d rev. ed. 2005).Google Scholar
40 See, e.g., Chris, De Cooker Ethics and Accountability in the International Civil Service, in Accountability, Investigation and Due Process in International Organizations 1,6-8 (Chris de, Cooker ed., 2005)Google Scholar [hereinafter Accountability, Investigation]; Hoffmann & Mégret, HR Accountability, supra note 38, at 44-45.
41 James Ferguson reminds us that the term “development” itself must be questioned for its implicit association with neocolonialism and the modernization project. James, Ferguson The Anti-Politics Machine: “Development,” Depoliticization, and Bureaucratic Power in Lesotho (1990)Google Scholar. This is a rich theme in studies of the anthropology of development. See also Arturo, Escobar Encountering Development: The Making and Unmaking of the Third World (1995) Google Scholar; The Anthropology of Development and Globalization: From Classical Political Economy to Contemporary Neoliberalism (Marc, Edelman & Angelique, Haugerud eds., 2005)Google Scholar. However, postmodern critiques have themselves been attacked on a range of grounds, for example, for underestimating the costs of decoupling from the world economy, their selective or myopic historical contextualization, their downplaying of material forces in deference to a strong ideological position (even if this is expressed to be counterideological), and what some have called their “arrogant certainty”and failure to accommodate alternative views and approaches. In the latter regard, one observer quipped that one comes away from reading the postmodern development literature “with the impression that liberal development professionals and their academic allies are worse than slumlords, car salesmen, property speculators or even lawyers!” Richard, Peet Feature Review , 2 New Pol. Econ. 341, 345 (1997)Google Scholar (reviewing Escobar, supra), quoted in Sylvia, Maxfield International Development, in Handbook of International Relations 462, 472 (Walter, Carlsnaes Thomas, Risse & Beth A., Simmons eds., 2002)Google Scholar [hereinafter IR Handbook].
42 The more notable critiques include Sub-commission for the Prevention of Discrimination and Protection of Minorities, The Realization of Economic, Social and Cultural Rights 11-18, UN Doc. E/CN.4/Sub.2/1992/16; Adjustment with a Human Face (Giovanni, Andrea Cornia Richard, Jolly & Frances, Stewart eds., 1987)Google Scholar; Bruce, Rich Mortgaging the Earth: The World Bank, Environmental Impoverishment, and the Crisis of Development (1995)Google Scholar; Paul, Farmer & Didi, Bertrand Hypocrisies of Development and the Health of the Haitian Poor, in Dying for Growth: Global Inequality and the Health of the Poor 87 (Jim Yong, Kim ed., 2002)Google Scholar; Frances, Stewart & Michael, Wang Poverty Reduction Strategies Within the Human Rights Perspective, in Human Rights and Development: Towards Mutual Reinforcement 447 (Mary, Robinson & Philip, Alston eds., 2005).Google Scholar
43 UVIN, supra note 25, at 134-37; David, Booth Aid Effectiveness After Accra: How to Reform the ‘Paris Agenda,’ ODI, Briefing Paper No. 39, July 2008, available at http://www.odi.org.uk/resources/download/l885.pdf Google Scholar; Laure- Hélène, Piron with Alison, Evans Politics and the PRSP Approach: Synthesis Paper , ODI, Working Paper No. 237, Mar. 2004, available at http://www.odi.org.uk/resources/download/1363.pdf Google Scholar; see also Ferguson, supra note 41.
45 Murphy, supra note 7, at 242-60.
46 As Peter Uvin has remarked, “ [T] he multilaterals are as dependent on the continuation of the money-moving system as are the borrowers; without continued lending and granting to a maximum of countries, their raison d’être would disappear.” Uvin, supra note 25, at 64.
47 See, e.g., Easterly, supra note 44, at 143-45; Murphy, supra note 7, at 107-09; Uvin, supra note 25, at 134-37; Stewart & Wang, supra note 42; Rosemary, McGee with Andy, Norton Participation in Poverty Reduction Strategies: A Synthesis of Experience with Participatory Approaches to Policy Design, Implementation and Monitoring , Institute of Development Studies, Working Paper No. 109, 2000, available at http://www.ntd.co.uk/ids bookshop/details.asp?id=558 Google Scholar.
48 Uvin, supra note 25, at 64 (citing, inter alia, Ravi Kanbur, Aid Conditionality and Debt in Africa, in Foreign Aid and Development 2 (Finn Tarp ed., 2000)).
49 Id. at 64-65.
50 For a thoughtful analysis of these issues, see Mike, Hough Rob, Allen & Enver, Solomon Tackling Prison Overcrowding (Policy Press Oct. 2008)Google Scholar; and for a critique of the punitive youth justice system in the United Kingdom from a human rights perspective, see Rosemary, Bennett Law Creates Underclass of Child Criminals , Times (London), June 9, 2008, § Home, at 1.Google Scholar
51 An important report of the World Health Organization (WHO) in August 2008 singled out the W T O and the World Bank and IMF in finding that reforms pushed by international agencies and commercial and medical interests had resulted in the growing commercialization of health care and in practices detrimental to achieving comprehensive systems for primary care and reducing social inequities in the realization of good health. WHO, Comm’n on the Social Determinants of Health, Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health (2008), an executive summary of which is available at http://whqlibdoc.who.int/hq/2008/WHO_IER_CSDH_08.l_eng.pdf. For a critique of ideological bias in health-sector reform, see Alicia Ely, Yamin Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We Should Care , 10 Health & Hum. Rts. 45 (2008)Google Scholar. On the mixed record on water privatization, see Michael, Goldman Imperial Nature 221–71 (2005).Google Scholar
52 On the empirical relationship between group-based inequalities and conflict, see Horizontal Inequalities and Conflict: Understanding Group Violence in Multiethnic Societies (Frances, Stewart ed., 2008)Google Scholar. For a critique of how UN-supported food aid programs might unintentionally exacerbate racial discrimination, see Asian Centre for Human Rights, Who Funds the Acts of Racism and Racial Discrimination in the ChittagongHill Tracts? Briefing Paper, June 15, 2005, at http://www.achrweb.org/briefingpapers.htm Google Scholar. See also Asian Centre for Human Rights, UNDP and OHCHR in Nepal: A Test Case for Rights , Achr Rev., No. CHR 61 /63/05, Mar. 9, 2005, at http://www.achrweb.org/Review/2005/64-05.htm Google Scholar (sharply criticizing how development incentive structures could play out during the recent conflict in Nepal, within a wider critique of human rights mainstreaming) ; Swiss Ministry of Foreign Affairs, Swiss Agency for Development and Cooperation (SDC), Swiss Cooperation Strategy for Nepal, 2005-2008 (Aug. 2005), available at http://www.deza.admin.ch/ressources/resource_en_63998.pdf Google Scholar (criticizing the national poverty reduction strategy as unimplementable for being “conflict blind”).
53 For arguments along these lines, see Murphy, supra note 7, at 167-69.
54 Uvin, supra note 25, at 153. There may also be a tendency to “try not to rock the boat by under-reporting human rights problems to their (foreign) superiors and by misrepresenting the situation on the ground, including closing an eye to how project funds, employees, and partners are part and parcel of ongoing patterns of discrimination and exclusion.” Id.
55 Article 100 of the UN Charter provides that in performing “their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external” to the United Nations and “shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.” Member states are enjoined “to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.” See also Standards of Conduct for the International Civil Service, in Report of the International Civil Service Commission to the General Assembly, UN GAOR, 56th Sess., Supp. No. 30, Annex II, UN Doc. A/56/30 (2001), available at http://icsc.un.org/resources/pdfs/general/standardse.pdf. Paragraph 8 further elaborates: “It cannot be too strongly stressed that international civil servants are not, in any sense, representatives of Governments or other entities, nor are they proponents of their policies. This applies equally to those on secondment from Governments and to those whose services have been made available from elsewhere.” Paragraph 12 provides that “international civil servants who are responsible for projects in particular countries or regions may be called upon to exercise special care in maintaining their independence” and cautions that if they receive instructions from the host country that they believe to threaten their independence, “they must consult their supervisors.” Amerasinghe, supra note 39, at 394 n.29, observes that conflicts of interest may arise “when a staff member has to perform functions for the organization in his national state and these involve conduct which is not welcomed by his national state.” The impartial, objective, and effective discharge of human rights duties brings particular challenges in this regard.
56 See, e.g., Ryan, Goodman & Derek, Jinks How to Influence States: Socialization and International Human Rights Law , 54 Duke L.J. 621 (2004)Google Scholar; John Gerard, Ruggie What Makes the World Hang Together: Neo- Utilitarianism and the Social Constructivist Challenge , 52 Int’l Org. 855 (1998)Google Scholar; Hans Peter, Schmitz & Kathryn, Sikkink International Human Rights, in IR Handbook, supra note 41, at 517Google Scholar. On the functional importance of the idea of legitimacy in international relations, see Thomas, M. Franck The Power of Legitimacy among Nations (1990)Google Scholar; Jutta, Brunnée & Stephen, J. Toope International Law and Constructivism: Elements of an Interactional Theory of International Law , 39 Colum. J. Transnat’l L. 19 (2000)Google Scholar.
57 Xinyuan, Dai International Institutions and National Policies 102 (2007)Google Scholar. The policy implications of Dai’s theory for “weak” international institutions (i.e., those such as the United Nations, which typically lacks significant “carrots and sticks”) include the fact that alternative (nongovernmental) channels constitute important avenues of influence and should therefore be more actively supported. Of course, no one school of thought completely explains state behavior for all circumstances. For a recent challenge to realist theory and the rational choice approach, see Duncan, Snidal Rational Choice and International Relations, in IR Handbook, supra note 41, at 73, 82-87Google Scholar. For other theoretical accounts of norm compliance, see Kenneth, W. Abbott & Duncan, Snidal Values and Interests: International Legalization in the Fight Against Corruption , 31 J. Legal Stud. S141 (2002)Google Scholar; Richard, K. Herrmann Linking Theory to Evidence in International Relations, in IR Handbook, supra, at 119Google Scholar; Andrew, Hurrell International Society and the Study of Regimes, in Regime Theory and International Relations 49 (Volker, Rittberger with Peter, Meyer eds., 1993).Google Scholar
58 The contribution of “local resources”—funds from developing-country governments—is particularly evident in Latin America. See Murphy, supra note 7, at 211-20 (recognizing, at 218 and 295, some of the contradictions to which this might give rise).
59 The UNDP defines capacity development as “the process through which individuals, organizations and societies obtain, strengthen and maintain the capabilities to set and achieve their own development objectives.” UNDP 2008 Report, supra note 7, at 3. Efforts have been made within the United Nations to broaden the understanding of the “capacities” needed for duty bearers to act and for individuals to be able to claim their rights, including the authority, responsibility, and motivations for action. However, the success of these efforts in practice is not clear. For a more expansive definition of “capacities” relevant to human rights, see the Human Rights Approach to Development Cooperation, available at http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf.
60 For the background to the national execution concept and its actual implementation, see Murphy, supra note 7, at 211-20.
61 See The Secretary-General [Ban Ki-moon], Remarks to Human Rights Field Presences, Geneva, at 2 (Nov. 17,2008) (on file with authors) (stating that “the credibility of [the OHCHR], and of the United Nations as a whole, depends on being close to victims and people in need, and on helping them directly when they face abuse or infringements of their rights. ... [I]t requires us to speak out and intervene when necessary, even when we are threat- ented. . . . Without such vigilance, without such independence, our value and integrity as an Organization would be seriously compromised.”).
62 See the critique by a retired head of UN legal services, François Loriot, Accountability at the United Nations—In Need of a Genuine Enforcement Body, in Accountability, Investigation, supra note 40, at 63. For more provocative accounts, see Mark, Alleyne Global Lies? Propaganda, The UN and World Order (2003)Google Scholar; and Adam, Lebor Complicity with Evil: The United Nations in the Age of Modern Genocide 271 (2006).Google Scholar On A More Positive Note, However, the UNDP was Reported to have been Awarded Top Ranking among Thirty Peer Organizations in the 2007 Global Accountability Report Published by the United Kingdom’s One World Trust, and to Have Scored Highest Overall, Coming in First or Second in three of the Survey’s four Dimensions of Accountability: Transparency, Participation, Evaluation, and Complaint and Response. UNDP 2008 report, supra note 7, at 33.
63 One of the more troubling and widely reported cases concerns the alleged failure by the United Nations to investigate the actions of a former staff member in UNDP Rwanda who allegedly aided and directly participated in the Rwanda genocide in the early 1990s, and reportedly used his UNDP authority, resources, and equipment for this purpose. See, e.g., Jane, Perlez Rwandan Accused in Genocide Wins Suit for U.N. Pay , N.Y. Times, Aug. 8, 2004, §1, at 3Google Scholar; see also Debra J., Saunders No Further Action Taken , San Fran. Chron., Oct. 19, 2004, at B9Google Scholar; Germany: U.N. Employee Accused of Role in Rwanda , N.Y. Times, July 10, 2008, at A8Google Scholar (reporting arrest of former UN employee in Frankfurt); Mark, Malloch Brown Letter to the Editor, A Rwandan and the U.N. , N.Y. Times, Aug. 13, 2004, at A20.Google Scholar
64 Amartya Sen reminds us of the risks of viewing rights as a purely legal construct, detached from the social processes that drive their recognition. Amartya, Sen Elements of a Theory of Human Rights , 32 Phil. & Pub. Aff. 315, 319 (2004)Google Scholar; John, Gerard Ruggie Business and Human Rights: The Evolving International Agenda , 101 AJIL 819, 839 (2007)Google Scholar.
65 Sir Robert Jennings famously wrote that interpretation of treaties is an art, “though it is a part of the art that it should have the appearance of a science.” Jennings, R. Y. General Course on Principles of International Law , 121 Recueil Des Cours 327, 544 (1967 II).Google Scholar
66 Andrew, Hurrell Norms and Ethics in International Relations, in IR Handbook, supra note 41, at 137, 144Google Scholar. As Hurrell observes,”If indeed ‘organized hypocrisy’ is a useful term, we still need to reflect on the crucial fact that it is just that: organized hypocrisy.” Id.
67 See Amerasinghe, supra note 39, at 404; International Law Commission (ILC), Draft Articles on the Responsibility of International Organizations, Arts. 25-30 [hereinafter ILC Draft Articles], in Report of the International Law Commission, Sixtieth Session, UN GAOR, 62d Sess., Su pp. No. 10, at 262, 271-72, UN Doc. A/63/10 (2008) [hereinafter 2008 ILC Report], A specific instance of inversion of this presumption of the primacy of state responsibility, under general principles of international institutional law, would be where a state has accepted responsibility for the internationally wrongful act of the organization of which it is a member, or else has led the injured party to rely on its responsibility. In these circumstances, according to the ILC, the international responsibility of the state is presumed to be subsidiary. Id., Art. 29.
68 Mégret & Hoffmann, HR Violator?, supra note 38.
69 See Mac, D Arrow Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law 126 (2003)Google Scholar.
70 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174 (Apr. 11)Google Scholar [hereinafter Reparation for Injuries]. On the applicability of international law to international organizations, see Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980 ICJ Rep. 73, 89 (Dec. 20); Christine, Gray The International Court’s Advisory Opinion on the WHO-Egypt Agreement of 1951 , 32 Int’l & Comp. L.Q. 534 (1983)Google Scholar; and Amerasinghe, supra note 39, at 92.
71 Interestingly, the European Community has taken the view that it could adhere to the European Convention on Human Rights, and thus promote the protection of human rights in Europe. Henry, G. Schermers & Niels, M. Blokker International Institutional Law 998 (4th rev. ed. 2003).Google Scholar The European Court of Justice had previously expressed the view that European law (as of 1996) did not permit accession. Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1996 ECR1-01759. However, Protocol 8 was recently annexed to the treaties relating to Article 6(2) of the Treaty on European Union, Dec. 13,2007,2007 O.J. (C 306) 155 (not yet in force), explicitly providing for the accession of the Union to the Convention. A Memorandum of Understanding between the Union and the Council of Europe, CM(2007)74, para. 20 (May 10, 2007), acknowledges that the Union’s early accession to the Convention will be an important contribution to coherence in human rights in Europe. But in an analogue closer to home, the UN Office of Legal Affairs has taken the view that the organization cannot adhere to the 1949 Geneva Conventions since many obligations under those instruments can be discharged only through juridical and administrative powers that the United Nations does not possess, including the authority to exercise criminal jurisdiction over members of armed forces. Schermers & Blokker, supra, at 1118 (3d rev. ed. 1995). This view is consistent with the approach of the Human Rights Committee, which has denied the admissibility of a complaint alleging a violation of the International Covenant on Civil and Political Rights by an international organization. H.v.d.P. v. Netherlands, Hum. Rts. Comm., Communication No. 217/1996 (Apr. 8, 1987), 9 Hum. RTS. L.J. 254 (1988). It remains to be seen whether the practice following the Union’s accession to the Convention might furnish legal and empirical grounds for revisiting this question in the UN context. The authors are grateful to Siobhan Mclnerney-Lankford for discussions on this theme.
72 Mégret & Hoffmann, HR Violator?, supra note 38, at 317.
74 Mégret & Hoffmann, HR Violator?, supra note 38, at 318.
75 By way of analogy one could look to the European Commission’s functional accession to the obligations of its member states under the General Agreement on Tariffs and Trade (GATT) before formally becoming a contracting party to the WTO/GATT after the completion of the Uruguay Round. As a result, the Commission was subsequently treated as a de facto contracting party bound by the provisions of GATT, both within the GATT and the Commission’s legal order. August Reinisch, Securing the Accountability of International Organizations, 7 Global Governance 131,137-38 (2001); see also Mohammed, Bedjaoui The New World Order and The Security Council 7 (1994)Google Scholar (supporting the transitive theory of responsibility).
76 Matthews v. United Kingdom, 1999-1 Eur. Ct. H.R. 251; see Reinisch, supra note 75, at 141.
77 ILC Draft Articles, supra note 67, Arts. 25-30. Draft Article 28 provides:
(1) A State member of an international organization incurs international responsibility if it circumvents one of its international obligations by providing the organization with competence in relation to that obligation, and the organization commits an act that, if committed by that State, would have constituted a breach of that obligation.
(2) Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization.
For the official commentary, see 2008 ILC Report, supra note 67, at 277-92. Draft Article 43 postulates that international organizations that are considered to have a separate international legal personality are in principle the only subjects for which the legal consequences of their internationally wrongful acts are entailed. But this understanding must be read subject to the specific provision for state responsibility under draft Article 28, as well as the primary responsibility of states for international wrongful acts under international human rights treaty law.
78 Mégret & Hoffmann, HR Violator?, supra note 38, at 318.
79 1 The Charter of the United Nations: A Commentary 23-25 (Bruno, Simma ed., 2d ed. 2004)Google Scholar [hereinafter Charter Commentary]; Bardo, Fassbender The UnitedNations Charter as Constitution of the International Community , 36 Colum. J. Transnat’l L. 529, 594–95 (1998)Google Scholar; Christian, Tomuschat Obligations Arising for States Without or Against Their Will , 241 Recueil Des Cours 195, 251–52 (1993 IV)Google Scholar. But this interpretation is not free from controversy. See Jose, Alvarez Constitutional Interpretation in International Organizations, in The Legitimacy of International Organizations 104, 104–10, UN Sales No. E.01 .III.A.8 (Jean-Marc, Coicaud & Veijo, Heiskanen eds., 2001).Google Scholar
80 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155UNTS331 [hereinafter Vienna Convention].
81 Michael, Akehurst A Modern Introduction to International Law 121 (5th ed. 1984)Google Scholar;Charter Commentary, supra note 79, at 18. The UN Charter came into being prior to the Vienna Convention. Article 4 of the Vienna Convention provides that the Convention does not have retrospective application, but that its provisions apply “[w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention.” These rules were also incorporated in the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Mar. 21, 1986, 25 ILM 543 (1986) (not yet in force).
82 Vienna Convention, supra note 80, Art. 31(1) & (3)(b). Furthermore, Article 32 allows for recourse to supplementary means of interpretation, such as the travaux préparatoires, as confirmation of the results of applying Article 31 or for clarification when those results leave the meaning ambiguous or obscure, or are absurd or unreasonable. Articles 31 and 32 should be applied together, with the sources referred to in Article 32 playing an ongoing and important, but secondary, role. John, Ciorciari The Lawjùl Scope of Human Rights Criteria in World Bank Credit Decisions: An Interpretive Analysis ofthe IBRD and IDA Articles ofAgreement , 33 Cornell Int’l L.J. 331, 342 (2000).Google Scholar
83 See Schermers & Blokker, supra note 71, at 856 (4th rev. ed. 2003).
84 Alvarez, supra note 79, at 111. The first method is obviously tantamount to anarchy, but the second is not feasible either given that the ICJ has only limited advisory jurisdiction.
85 Reparation for Injuries, 1949 ICJ Rep. 174, 180 (Apr. 11).
86 Alvarez, supra note 79, at 113. Article 4 of the Draft ILC Articles, supra note 67, emphasizes that the conduct (or practice) of individual officers or organs can be imputed to the organization, including officials and other persons or entities through whom the organization acts. Moreover, draft Article 6 establishes the principle of ostensible authority: “The conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions.” For the commentary to these articles, see Report of the International Law Commission on the Work of Its Fifty-sixth Session, UN GAOR, 59 th Sess., Supp. No. at 104-09, 116-20, UN Doc. A/59/10 (2004).
87 Alvarez, supra note 79, at 112. Article 2(7) of the UN Charter protects only against acts of the United Nations. However, sometimes it has also been interpreted as embodying the general principle of nonintervention. Article 2(7) applies to all UN organs and all of the organization’s activities. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 Icj Rep. 221 (Mar. 30), discussed in Charter Commentary, supra note 79, at 151; iff also infra notes 206-12 and corresponding text.
88 There is a long and continuing debate about the process for entering reservations to human rights treaties, calling into question the adequacy of an exclusively state-centric conception of international law from a human rights perspective. See Hum. Rts. Comm., General Comment No. 24 (52), UN Doc. CCPR/C/21/Rev.l/Add.6 (Nov.11, 1994); cf. Report of the International Law Commission on the Work of Its Fifty-ninth Session, UN GAOR, 62dSess.,Supp.No. 10, at 113-15, UN Doc. A/62/10 (2007) [hereinafter 2007ILC Report] (reflecting the view that reservations to human rights treaties are governed by the principle of state consent). For discussion, see Reservations to Human Rights Treaties and the Vienna Convention Regime (Ineta, Ziemele ed., 2004).Google Scholar
89 Andrew, Clapham Human Rights Obligations of Non-State Actors 145–49 (2006)Google Scholar; Nonstate Actors and Human Rights (Philip, Alston ed., 2005)Google Scholar; Sergey, Ripinsky & Peter Van, Den Bossche Ngo Involvement in International Organizations (2007)Google Scholar. On mechanisms through which international organizations themselves can shape international law, see Darrow, supra note 69, at 142-47.
90 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 22, para. 22 (June 21) [hereinafter Namibia Opinion]; see Charter Commentary, supra note 79, at 28 -29; Alvarez, supra note 79, at 113.
91 By comparison with institutional practice, formal charter amendments under explicit constitutional mechanisms have been few in number and have not in the general course involved significant changes in the powers and duties of international organizations. Schermers & Blokker, supra note 71, at 720-37 (3d rev. ed. 1995).
92 Charter Commentary, supra note 79, at 29.
93 Id. at 30 (emphasis added).
94 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151, 201-02 (July 20) (Fitzmaurice, J., sep. op.).
95 The Commentary’s formulation is deliberately cautious. Responding to Fitzmaurice’s statement, see id.., it ventures that such practice by the organization must not be completely disregarded. “[E]ven if it is not universally accepted and cannot, therefore, reach the significance of a quasi-authentic interpretational appraisal,. . . this practice contains ‘a message’ which the interpreter must at least take notice of and which must be considered as an important interpretational possibility.” Charter Commentary, supra note 79, at 30.
96 For an explanation, see Alvarez, supra note 79, at 121-23.
98 Some commentators suggest that the implied powers question should be seen as an aspect of teleological or purposive interpretation. See, e.g., Charter Commentary, supra note 79, at 31.
99 For a fuller discussion of implied powers and some outstanding controversies, see Amerasinghe, supra note 39, at 92-104; Darrow, supra note 69, at 115-22,138 -42; Alvarez, supra note 79, at 121-23; and Dapo, Akande The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice , 9 Eur. J. int’l l. 437 (1998)Google Scholar.
100 For a lengthy sampling of the implied powers commonly attributed to international organizations, see Amer- Asjnghe, supra note 39, at 101, and to the United Nations in particular, id. at 103. They include concluding treaties and international agreements, exercising jurisdiction over the functions of the organization and the official duties of its staff, bringing claims and having claims brought against them, and settling disputes, among others, subject to the express provisions of constituent instruments. The UN implied powers have been taken to extend to exercising territorial jurisdiction by administering territory, conducting or authorizing military operations, and controlling and maintaining armed forces.
101 UN Charter, Art. 1(3).
102 Charter COmmentary, supra note 79, at 37.
103 For an analogous argument in connection with the human rights obligations of the Security Council, see Reinisch, supra note 38, at 857-58.
104 GA Res. 217A (III), UN Doc. A/810, at 71 (1948).
105 Charter Commentary, supra note 79, at 18; Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. Int’L & Comp. L. 287,323-25 (1995/96); Louis, Sohn The New International Law: Protection of the Rights of Individuals Rather Than States , 32 AM. U. L. Rev. 1, 17 (1982).Google Scholar
106 Proclamation of Teheran, May 13, 1968, International Conference on Human Rights, Teheran, Final Act, UN Doc. A/CONF.32/41, UN Sales No. E.68.XIV.2 (1968), reprinted in 63 AJIL 674, 674 (1969).
107 The main recognized sources of international law, including customary law, are codified in Article 38(1) of the Statute of the International Court of Justice (also including international conventions, the general principles of law recognized by civilized nations, and, subsidiarily, judicial decisions and the teachings of the most highly qualified publicists of the various nations). On customary human rights law, see Akehurst, supra note 81, at 39; Bruno, Simma & Philip, Alston The Sources of Human Rights Law: Custom, Jus Cogens and General Principles , 1992 Austl. Y.B. Int’l L. 82 (1992)Google Scholar.
108 See, e.g., Hurst, Hannum Human Rights, in The United Nations and International Law 131, 149–51 (Christopher, Joynered., 1997)Google Scholar; Oscar, Schachter International Law in Theory and Practice: General Course in Public International Law , 178 Recueil Des Cours 21, 333–42 (1982 V)Google Scholar.
109 For further such arguments, see Thomas, Buergenthal The World Bank and Human Rights, in The World Bank, International Financial Institutions and the Development of International Law 95, 96 (Edith Brown, Weiss et al. eds., 1999).Google Scholar
110 Varun, Gauri Social Rights and Economics: Claims to Health Care and Education in Developing Countries , 32 World Dev. 465, 465 (2004).Google Scholar
111 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [ICESCR]Google Scholar; OHCHR, Open-Ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, available at http://www2.ohchr.org/english/issues/escr/intro.htm Google ScholarPubMed. The UN General Assembly approved the draft Optional Protocol on December 10, 2008, the sixtieth anniversary of the UDHR. Economic, Social and Cultural Rights: Legal Entitlements Rather Than Charity, Say UN Human Rights Experts, UN Office at Geneva, Press Release (Dec. 10, 2008), available at http://www.unog.ch/ Google Scholar (follow “News and Media” hyperlink; then follow “Press Releases and Meeting Summaries” hyperlink; search “Optional Protocol”).
112 Philip, Alston Ships Passing in the Night: The Current State of the Human Rights and Development Debate as Seen Through the Lens of the Millennium Development Goals , 27 Hum. Rts. Q. 755 (2005).Google Scholar
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114 Simma & Alston, supra note 107, at 102.
115 Id. at 103. On the problem of demonstrating compliance, see Herrmann, supra note 57, at 129.
116 See Charter Commentary, supra note 79, at 40.
117 Namibia Opinion, supra note 90, paras. 129-31.
118 To similar effect, see Reinisch, supra note 38, at 858.
119 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 ICJ Rep. 47, 57 (July 13) (affirming UN competence to establish an administrative tribunal for staff disputes, and hinting, see id. at 57, at a duty to do so: it would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals . . . that [the United Nations] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them”); see Reinisch, supra note 38, at 858.
120 Senior Vice President and General Counsel [World Bank], Legal Opinion on Human Rights and the Work of the World Bank (Jan. 27, 2006), available at http://www.ifiwatchnet.org/?q=en/node/335 Google Scholar. While authoritative, this opinion deals with issues that remain controversial within the bank, and was neither requested nor approved by the bank’s Executive Board. Subject to this important caveat, the opinion notes the balance in the UN Charter between the principles of sovereignty and noninterference in domestic affairs, and the core UN principle of human rights, observing that early on, the balance was interpreted in favor of sovereignty. With the exponential growth of international human rights law, the opinion finds that the balance has “shifted in favor of protecting human rights, with the concept of sovereignty having itself been transformed by the evolution of human rights standards and the pursuit ofhuman rights enforcement at all levels of international law in global, regional and domestic fora.” Id., para. 16. The opinion further argues that the bank should take account of violations or nonfulfillment of obligations with an economic impact, and human rights violations that lead to a breach of international obligations relevant to the bank, such as those under binding decisions of the Security Council. The opinion concludes that the bank’s “Articles of Agreement permit, and in some cases require, the Bank to recognize the human rights dimensions of its development policies and activities since it is now evident that human rights are an intrinsic part of the Bank’s mission.” Id., para. 25; see also Roberto, Dañino The Legal Aspects of the World Bank’s Work on Human Rights , Dev. Out-Reach, Oct. 2006, at http://www.devoutreach.eom/oct06/SpecialReport/tabid/l518/Default.aspx Google Scholar; World Bank, FAQ, Human Rights, at http://www.worldbank.org/ Google ScholarPubMed; Galit, A. Sarfaty Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank , 103 AJIL (forthcoming 2009).Google Scholar
121 Jorge, Taillant Using Human Rights Tribunal to Force Bank Compliance: Uruguayan Paper Mill , Bretton Woods Update, No. 49, Jan. 26, 2006, at http://www.brettonwoodsproject.org/art-507742 Google Scholar; Centre on Housing Rights and Evictions, Written Submissions to the Committee on Economic, Social and Cultural Rights at Its Thirty-first Session (Nov. 2003), available at http://www.cohre.org/store/attachments/Guatemala%20Shadow%20Report%20to%20CESCR.pdf.
122 International Finance Corporation and International Business Leaders Forum, Guide to Human Rights Impact Assessment and Management, Road-Testing Draft (June 2007), available at http://www.iblf.org/resources/general.jsp?id=123946.
123 François, Gianviti Economic, Social, and Cultural Human Rights and the International Monetary Fund, in Non-State Actors and Human Rights, supra note 89, at 113.Google Scholar
124 See, e.g., Clapham, supra note 89.
125 Commentary on the Draft Convention on the Law of Treaties Between States and International Organizations and Between International Organizations,  2 Y.B. Int’l L. Comm’n, pt. 2, at 56, UN Doc. A/CN.4/ SER.A/1982/Add. 1 (Part 2), quoted in Reinisch, supra note 38, at 859.
126 Darrow, supra note 69, at 167-68 (Inter-American Development Bank); Statement by Omar Kabbaj, President of the African Development Bank Group at the Opening Ceremony of the All Africa Conference on Law, Justice, and Development, Abuja, Nigeria (Feb. 4, 2003), available at speeches/.
127 The European Bank for Reconstruction and Development is unusual among multilateral development banks in having the promotion of human rights explicitly within its Articles of Agreement. While this mandate has been interpreted somewhat restrictively in practice and the ideological motives can be questioned, former IMF deputy general counsel Herbert Morais has argued that the human rights mandate of the bank “reflect[s] an important evolution in the thinking of the international donor community that suggests a larger role and responsibility for the [international financial institutions] generally in promoting good governance, including the rule of law and respect for human rights in their member countries.” Herbert, V. Morais The Globalization of Human Rights Law and the Role of International Financial Institutions in Promoting Human Rights , 22 GEO. Wash. Int’l L. Rev. 71, 92 (2000) Google Scholar; see also Herbert, Morais The Bretton Woods Institutions: Coping with Crises , 90 ASIL Proc. 433 (1996).Google Scholar
128 Pierre, Klein La responsabilité des organisations financiers et les droits de la personne , Revue Belge De Droit International [Rev. Belge D.I.] 97, 113 (1999) Google Scholar; Simma & Alston, supra note 107, at 104-06. Due diligence can be understood as “the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Black’s Law Dictionary (8th ed. 2006).Google Scholar
129 For a philosophical justification of “do no harm,” see Thomas, Pogge World Poverty and Human Rights 132 (2002)Google Scholar. On its relevance to humanitarian aid, see Mary, Anderson Do No Harm: How Aid can Support Peace— or War (1999).Google Scholar The “do no harm” requirement has also moved into the international aid policy lexicon. See OECD Development Assistance Committee (OECD-DAC), Action-Oriented Policy Paper on Human Rights and Development (2007), available at http://www.oecd.Org/dataoecd/50/7/39350774.pdf Google Scholar (“Donors should promote fundamental human rights, equity and social inclusion, respect human rights principles in their policies and programming, identify potential harmful practices and develop short, medium and long-term strategies for mitigating the potential for harm.”).
130 Exchange of Letters Constituting an Agreement Between the United Nations and Belgium Relating to the Settlement of Claims Filed Against the United Nations in the Congo by Belgian Nationals, Feb. 20,1965, 1965 UN JURID.Y.B. 39.
131 Standards of Conduct for the International Civil Service, supra note 55. Paragraph 3 provides: “The values that are enshrined in the United Nations organizations must also be those that guide international civil servants in all their actions: fundamental human rights, social justice, the dignity and worth of the human person and respect for the equal rights of men and women and of nations great and small.” Paragraph 14 provides: “Freedom from discrimination is a basic human right. International civil servants are expected to respect the dignity, worth and equality of all people without any distinction whatsoever.”
132 Jean, J. A. Salmon De quelques problémes posés aux tribunaux beiges par les actions de citoyens beiges contre l’O.N. U. en raison defaits survenus surle territoire de la République democratique du Congo , 81 Journal Des Tribuneaux 713 (1966)Google Scholar; Paul De, Visscher De I’immunité de juridiction de I’Organisation des Nations Unies et du caractère discretionnairede la comphence de protection diplomatique , 25 Revue Critique De Jurisprudence Belge 449 (1971)Google Scholar (note on decision of September 15, 1969, by the Brussels Court of Appeals), cited in Reinisch, supra note 38, at 858-59.
133 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/8/5 (Apr. 7, 2008) [hereinafter 2008 Ruggie Report]; see also Clapham, supra note 89, at 195-270; Non-State Actors and Human Rights, supra note 89; David, Kinley & Junko, Tadaki From Talkto Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law , 44 VA. J. Int’l L. 931, 944–52 (2004).Google Scholar
134 Clapham, supra note 89, at 150-51; Slgrun I. Skogly, the Human Rights Obligations of the World Bank and the International Monetary Fund 193 (2001); 2008 Ruggie Report, supra note 133. The objects of protection need not be confined within the territory of the duty holder. The principle of extraterritoriality of obligations to respect and protect socioeconomic rights is relatively well established, in the absence of any express territorial limitation in the ICESCR. See Matthew, Craven The International Covenant on Economic, Social and Cultural Rights 147–50 (1995)Google Scholar; Olivier de, Schutter Le protocols facultative au Pacte international relative aux droits economiques, sociaux et culturels , 39 Rev. Belge D.I. 7 (2006)Google Scholar; cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136,180-01, para. 112 (July 9). But this principle is not confined to socioeconomic rights. See Hum. Rts. Comm., General Comment No. 31 , para. 10, UN Doc. CCPR/C/21 /Rev. 1 /Add. 13 (May 26,2004) (stating that states parties to the Civil and Political Covenant must respect and ensure the rights laid down in that Covenant to anyone within the “power or effective control” of that state party, even if not situated within its territory). The conditions and limits regarding the exercise of extraterritorial jurisdiction are, of course, separate questions. For a comprehensive discussion of extraterritorial jurisdiction in the human rights field, especially in regulating transnational corporations, see Olivier de Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, Background Paper, Seminar of Legal Experts for the Benefit of the Special Representative of the Secretary-General on Human Rights and Transnational Corporations, Catholic Univ. of Louvain and Free Univ. of Brussels (Nov. 3-4, 2006), available at http://www.reports-and-materials.org/01ivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf.
135 See Louise, Arbour The Responsibility to Protect as a Duty of Care in International Law and Practice , 34 Rev. Int’l Stud. 445, 447–48 (2008)Google Scholar.
136 2008 Ruggie Report, supra note 133; see, e.g., Committee on the Elimination of Racial Discrimination, Concluding Observations (Canada), para. 17, UN Doc. CERD/C/CAN/CO/18 (May 25,2007) (recommending that a state party “take appropriate legislative or administrative measures” to prevent adverse impacts on the rights of indigenous peoples in other countries from the activities of corporations registered in that party). Regional human rights systems have reached similar conclusions.
137 GA Res. 48/141 (Dec. 20,1993). Paragraph 3(a) of this resolution recognizes that “the promotion and protection of all human rights is a legitimate concern of the international community.” Paragraph 4(a) specifies that the high commissioner’s function is to “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights,” as well as to prevent violations (para. 4(f)), enhance international cooperation for the promotion and protection of human rights (para. 4(h)), and coordinate the human rights promotion and protection activities throughout the UN system (para. 4(i)), therefore acknowledging human rights protection as a systemwide commitment.
138 However, for limitations on the duty to protect in the context of state responsibility for actions of private security contractors, see Philip, Alston The “Not-a-Cat” Syndrome: Can the International Human Rights Regime Accommodate Non-state Actors? in Non-State Actors and Human Rights, supra note 89, at 3Google Scholar, 8-9. On limitations of this duty in the context of state responsibility to regulate the activities of multinational corporations, see Olivier de, Schutter The Accountability of Multinationalsfor Human Rights Violations in European Law, in id. at 221, 233-35.Google Scholar
139 This term is often attributed to Audrey Chapman, A “Violations Approach”for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 HUM. RTS. Q. 23 (1996). It is useful, up to a point, in underscoring the reality that socioeconomic rights, in similar fashion to civil and political rights, are amenable to varying degrees to quantification and adjudication. However, the loose or uncritical use of this concept in the aid and development policy context can generate conceptual rigidity, erecting categorical blinkers around arbitrarily defined clusters of issues assumed (wrongly) to be inimical to development cooperation, and thus frustrating dialogue on the nuances and complexities of development and human rights problems.
140 The United Nations has issued specific guidance to senior officials on how to carry out their human rights responsibilities, including those connected with capacity building, advocacy, and handling human-rights-related information. UNDP, Guidelines for Country Teams (on so-called Common Country Assessment (CCA) and UN Development Assistance Framework (UNDAF)) (Feb. 15, 2007), available at http://www.undg.org/docs/6860/2007%20CCA%20and%20UNDAF%20Guidelines%20FINAL.doc. On guidance for senior officials, see ACC, The United Nations System and Human Rights: Guidelines and Information for the Resident Coordinator System (Mar. 2000), available at http://www.undg.org/index.cfm?P=133; and Inter-Agency Standing Committee, Human Rights Guidance Note for Humanitarian Coordinators (June 2006), available at http://www2.ohchr.org/english/countries/field/docs/HRguidance-coordinators.pdf. While in serious need of updating, the guidance makes clear that resident coordinators and UN development operations are not mandated to undertake individual human rights monitoring, investigations, or casework. How human rights challenges and responsibilities should be met in practice is understood to depend on the context and capacities of the country team concerned, as well as on the particularities of the country situation. Senior officials—including resident coordinators and humanitarian coordinators—are encouraged to liaise with the OHCHR and other specialized bodies in this respect, not to act as de facto legal advisers.
141 ILC Draft Articles, supra note 67, Art. 34(1). Paragraph (2) makes it clear that “injury” includes any damage, whether material or moral.
142 Id., Art. 40(2). “Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible international organization.” Id., Art. 40(3).
143 For example, as regards responsibility vis-à-vis safeguards, the director general of the International Atomic Energy Agency wrote: “Although there may be circumstances when the giving of satisfaction by the Agency may be appropriate, it is proposed to give consideration only to reparation properly so called. Generally speaking, reparation properly so called may be either restitution in kind or payment of compensation.” Sigvard Eklund, Note, IAEA Doc. GOV/COM.22/27, para. 27 (June 24,1970), in UN Doc. A/CN.4/545, annex (June 25, 2004) (on file with Codification Division, UN Office of Legal Affairs), quoted in 2007 ILC Report, supra note 88, at 208 n.526. The practice, however, seems more consistent and instructive in the area of “satisfaction” than that of restitution or compensation. Id. at 210-11.
144 Letter from the Secretary-General to the Acting Permanent Representative of the USSR, UN Doc. S/6597 (Aug. 6, 1965), reprinted in 1965 UN Jurid. Y.B. 41. The view that the United Nations placed its responsibility at the international level was maintained by Salmon, J. J. A. Les accords Spaak—U Thant du 20 février 1965 , 1965 Annuaire Français De Droit International 468, 483, 487.Google Scholar
145 2007 ILC Report, supra note 88, Commentary, at 202.
146 Id. at 203.
147 Id. at 204.
148 UNDP’s Aid Watch initiative in Sri Lanka, aimed at improving transparency and accountability in aid delivery, may be one model worth replicating. UNDP, Tackling Corruption, Transforming Lives: Accelerating Human Development in Asia and The Pacific 84 (2008), available at http://www2.undprcc.lk/resource_centre/pub_pdfs/P1084.pdf Google Scholar. One could also look to the range of mechanisms used in the field of business and human rights. Caroline, Rees & David, Vermijs Mapping Grievance Mechanisms in the Business and Human Rights Arena (Corporate Responsibility Initiative of the John F. Kennedy School of Government, Rep. No. 28, Jan. 2008), available at http://www.reports-and-materials.org/Rees-Vermijs-Mapping-grievance-mechanisms-Jan-2008.pdf.Google Scholar
149 Existing UN operational guidance, see supra note 140 and corresponding text, reflects these requirements to some extent, for example, by providing basic information on available human rights grievance procedures at the international level and to whom complaints about possible violations should be channeled. But this guidance is badly out of date, and needs to be situated in the context of the primacy of national recourse mechanisms where these exist, including judicial and administrative mechanisms.
150 Clapham, supra note 89, at 150-01.
151 Id. at 137-59; Darrow, supra note 69, at 111-94; Skogly, supra note 134, at 193; cf. Siobhán, McInerney-Lankford Human Rights and Development: Some Institutional Perspectives , 25 Neth. Q. Hum. Rts. 459 (2007).Google Scholar
152 See, e.g., Mac, Darrow A Human Rights-Based Approach to Development: Theoretical and Operational Issues for the World Bank, in 2 World Bank Legal Review: Law, Equity, and Development 385 (2006)Google Scholar; Sarfaty, supra note 120. On organizational culture and distortion of research and knowledge management functions, as well as lending decisions, see Goldman, supra note 51, at 151-80; Ravi, Kanbur International Financial Institutions and International Public Goods: Operational Implications for the World Bank, in Challenges to the World Bank and IMF: Developing Country Perspectives 251, 263 (Ariel, Buira ed., 2003).Google Scholar
153 ILC Draft Articles, supra note 67, Art. 12. The organization incurs international responsibility for such aid or assistance if “(a) That organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that organization.”
154 See Clapham, supra note 89, at 220 - 25 (discussing the evolution of the doctrine of complicity in connection with transnational corporations); Andrew, Clapham & Scott, Jerbi Categories of Corporate Complicity in Human Rights Abuses , 24 Hastings Int’l & Comp. L. Rev. 339 (2001)Google Scholar (discussing different putative categories of complicity in general). While there is no definitive judicial pronouncement on the meaning of “complicity,” the Unocal test of “knowing practical assistance or encouragement that has a substantial effect on the perpetration” of the violation in question is frequently cited, and substantially reflects the criteria in the ILC Draft Articles. Doe I v. Unocal, 395 F.3d 932, 947 (9th Cir. 2002); see supra note 153 and corresponding text.
155 Multilateral lenders and UN agencies have often found themselves to be prized partners for investors and private consortia, given the political risk insurance brought by the good brand name of the United Nations, together with the multilateral lenders’ relatively advanced social safeguard policies. But partnership cannot be bought at any price. The partnership of the World Bank with private consortia in the Chad/Cameroon pipeline project in the late 1990s drew criticism both externally and internally from its own Inspection Panel, including on human rights grounds. World Bank Inspection Panel, Investigation Report: Chad-Cameroon Petroleum and Pipeline Project (Loan No. 4558-CD); Petroleum Sector Management Capacity Building Project (Credit No. 3373-CD); and Management of the Petroleum Economy (Credit No. 3316-CD) 6 0 - 6 3 (n.d.), available at http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ChadlnvestigationReporFinal.pdf; Genoveva, Hernandez Uriz To Lend or Not to Lend: Oil, Human Rights, and the World Bank’s Internal Contradictions , 14 Harv. Hum. Rts. J. 197 (2001)Google Scholar. The UNDP’s more recent association with Shell in Nigeria has similarly been questioned. Matthew, Russell Lee On Water, UNDP Talks Human Rights, While Enabling Violations in Africa and Asia, with Shell and Coca-Cola , Inner City Press, Nov. 9, 2006, at http://www.innercitypress.com/undpll0906.html Google Scholar. For a provocative critique targeted at the United Nations, see Lebor, supra note 62.
156 See UN Global Compact, Overview of the United Nations Global Compact (June 30, 2009), available at http://www.unglobalcompact.org/AboutTheGC/index.html.Google Scholar
157 See UN Global Compact, Principle Two (Dec. 18, 2008), at http://www.unglobalcompact/AboutTheGC/TheTenPrinciples/index.html Google Scholar; see also Report of the High Commissioner for Human Rights to the 56th Session of the General Assembly, UN GAOR, 56th Sess., Supp. No. 36, at 19, UN Doc. A/56/36 (Sept. 28,2001) (to similar effect).
158 Human Rights Watch et al., Recalibrating the Regime: The Need for a Human Rights-Based Approach to International Drug Policy 24, Beckley Foundation Drug Policy Programme, Report No. 13, Mar. 2008, available at http://www.hrw.org/sites/default/files/related_material/beckley0308.pdf (“Human rights abuses that emerge as the result of drug enforcement policies, laws or activities—including denial of harm reduction interventions such as methadone or access to sterile injecting equipment—have been well documented. . .. Yet despite this damaging impact at the national level of the interpretation and application of the UN drug control treaties, there has been little condemnation from the UN drug control machinery of such abuses [,] . . .run[ning] the risk of complicity in those violations.”).
159 On easy rescue in philosophy and criminal law, see Jeremy, Bentham An Introduction to The Principles of Morals and Legislation 164 (Laurence, J. Lafleur ed., Hafner 1948) (1789)Google Scholar; Nancy, Levitt The Kindness of Strangers: Interdisciplinary Foundations of a Duty to Act , 40 Washburn L.J. 463 (2001)Google Scholar; Jeremy, Waldron On the Road: Good Samaritans and CompellingDuties , 40 Santa clara L. Rev. 1053 (2000)Google Scholar; Daniel, Yeager A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers , 71 Wash. U. L.Q. 1 (1993)Google Scholar; Ken, Levy A Call for Reasonable Bad Samaritan Laws: Why Letting Die Should Be Punished Almost as Severely as Murder (2008), at http://works.bepress.com/cgi/viewcontent.cgiiarticle=1004&context=ken_levy Google Scholar. A legal duty to undertake “easy rescue” has been recognized by the criminal codes of fifteen European nations but sparingly, it seems, in English-speaking parts of the world. Joel, Feinberg Harm to Others 127 (1984)Google Scholar.
The idea of indiference as sin is captured powerfully by Elie Wiesel, a former prisoner at Auschwitz. Elie, Wiesel The Perils of Indifference: Lessons Learned from a Violent Century, Remarks at the White House’s 7th Millennium Evening (Apr. 12, 1999), available at http://www.americanrhetoric.com/speeches/ewieselperilsofindifference.html.Google Scholar
160 The paradigmatic cases concern failure to rescue a person lying face down in a puddle, failure to warn a blind person of an open manhole, failure to report a lost child in a wood, and passive witnessing of serious crimes such as violent sexual assault and murder. The human rights analogues would, by definition, typically involve actions or omissions of the state.
161 For a rebuttal of some of the well-established critiques of the “easy rescue” doctrine generally, see Levy, supra note 159. Not unexpectedly, many liberal scholars have mobilized against this doctrine as an abridgment of narrow conceptions of individual freedom, sovereign self-rule, or personal autonomy of the putative duty bearer. See, e.g., Malm, H. M. Liberalism, Bad Samaritan Law, and Legal Paternalism , 106 Ethics 4 (1995)CrossRefGoogle Scholar. This doctrine has not fared well in common law countries as a result, and in the United States only Vermont, Minnesota, and Rhode Island have enacted such laws. Feinberg, supra note 159, at 127. Communitarians and solidarists would generally not be so troubled, and moved more by the ethic of common humanity.
162 GA Res. 60/1, para. 126 (Oct. 24, 2005).
163 Accra Agenda for Action, para. 13(c) (Sept. 4,2008), quoted in note 204 infra, available at http://siteresources.worldbank.org/ACCRAEXT/Resources/4700790-1217425866038/AAA-4-SEPTEMBER-FINAL-16h00.pdf. It should be emphasized, however, as many states do, that commitments of the signatories of the Paris Declaration on Aid Effectiveness do not constitute, represent, or bind the UN General Assembly. Nevertheless, the aid policy discussions within the United Nations are significantly influenced by the Paris Declaration and associated agreements. Paris Declaration on Aid Effectiveness, Mar. 2,2005, available at http://www.aidharmonization.org/down-load/253712/FINALPARISDECLARATION.pdf; see infra note 172.
164 Munir, Akram Statement on Behalf of the Group of 77 and China at the Operational Activities Segment of the 2007 Substantive Session of the ECOSOC, para. 7 (July 12, 2007), available at http://www.g77.org/statement/ Google Scholar.
165 Delivering as One: Report of the Secretary-General’s High-Level Panel, UN Doc. A/61/583, at 7 (Nov. 20, 2006).
166 Id., para. 51.
168 UN Doc. A/61/836 (Apr. 3, 2007).
169 SWC Report, supra note 12, paras. 3-4.
170 Joint Statement by G-77 and NAM on Informal Consultations of the General Assembly on United Nations System-wide Coherence: Human Rights, para. 5 (July 24, 2007), available at http://www.g77.org/statement/.
171 SWC Report, supra note 12, paras. 136-41. After reciting the human rights architecture and programs in the UN system, including the OHCHR’s role in mainstreaming human rights in development, the cochairs concluded, pragmatically, that to “avoid duplication . . . overlap and. . . pursuing issues in channels that are likely to prove fruitless, the broad membership has formed the general view that consideration of this work should continue to be taken up in these various settings and not within the framework of the continued discussions on System-wide Coherence.” Id., para. 141.
172 The Paris Declaration, supra note 163, signed by 125 countries and over forty international organizations and civil society organizations, contains an important statement of principles and defines various commitments to improve the delivery of aid. The basic principles are national ownership, alignment of aid with national systems, harmonization between donors, managing for results, and mutual accountability. The United Nations signed the Paris Declaration, and refers to its principles in practice, but that does not substitute for the intergovernmental discussions in the TCPR and SWC. While the technical efficiency gains promoted in the declaration are no doubt important, it does not operate as an effective accountability framework, and numerous human rights tensions are apparent. See Marta, Foresti David, Booth & Tammie, O’Neill Aid Effectiveness and Human Rights: Strengthening the Implementation of the Paris Declaration (Oct. 2006), available at http://www.odi.org.uk/resources/download/1538.pdf.Google Scholar
173 SWC Report, supra note 12, para. 7.
174 GA Res. 62/208, paras. 89-96 (Dec. 19, 2007).
175 Id., paras. 3, 5. Under the latter provision the General Assembly “[r]ecognizes that the strength of the United Nations operational system lies in its legitimacy, at the country level, as a neutral, objective and trusted partner for both programme countries and donor countries.”
176 Administrative Instruction, UN Doc. ST/AI/2000/13, para. 4.2 (Oct. 25, 2000).
177 UNDP Strategic Plan 2008-2011, supra note 13, para. 16.
178 The practical significance of this conclusion should not be overstated. The deletion of a human-rights-based approach from the UNDP’s Strategic Plan for 2008-2011 in deference to a “human development approach” was probably based as much on political or tactical reasons as substantive concerns, given that the programming implications of a human-rights-based approach were never considered by the Executive Board in any serious way, and a programming approach drawing upon human development theory could well amount to much the same thing. Moreover, disagreements about human rights, and a human-rights-based approach, did not unduly hamper the approval by the same member states of the Strategic Plans of UNICEF, the United Nations Population Fund, or the United Nations Development Fund for Women. See UNDP, Human Rights and Human Development (Human Development Report, 2000)Google ScholarPubMed. Human capability theories of Amartya Sen are also apposite in this context.
Sen argues that expansion of freedom is both the primary end and the principal means of development. Sen’s approach reestablishes the word “freedom” as referring to the enhancement of “human capabilities,” which involve processes of decision making and opportunities of people to achieve the substantive freedom to lead the lives they have reason to value and to enhance the real choices they have. The broad consonance of this influential theory of development with basic precepts of human rights is clear. See Amartya, Sen Development as Freedom (1999)Google Scholar. The UN record in implementing a human rights approach is mixed at best, owing in part to shortcomings in evaluation methodology, as well as persistent difficulties in penetrating the cosmetic or rhetorical levels and addressing the underlying power relations and structural constraints at play. See, e.g., Darrow, supra note 152; see also UVIN, supra note 25 (a more wide-ranging critique).
179 UNDP Strategic Plan 2008-2011, supra note 13, at 25-28, 35-36.
180 For the first guiding principle for international civil servants, see supra note 131 (quoting Standards of Conduct for the International Civil Service, para. 3). The secretary-general has strongly supported this vision: “The true measure of success for the UN is not how much we promise, but how much we deliver for those who need us most. . . . We simply need to live [the UN purposes and principles] every day: step by step, program by program, mandate by mandate.” Ban, Ki-moon Acceptance Speech on Appointment as the 8th Secretary-General of the United Nations (Oct. 13, 2006), available at http://www.un.org/news/ Google Scholar.
181 Antonia, Handler Chayes & Abram, Chayes Regime Architecture: Elements and Principles, in Global Engagement: Cooperation and Security in the 21st Century 65, 68 (Janne, E. Nolan ed., 1994).Google Scholar
182 International relations theory posits the norm-following logic of “appropriateness” in counterpoint to the rationalist logic of “consequences.” This is not to suggest any irreconcilable dichoromy between the two, however, or between rationalism and normative or cognitive approaches more generally. As Hurrell points out: How we calculate consequences is often far from obvious and not easily separable from our understanding of legal or moral norms. . . . At any point in time it may indeed be helpful to think of actors making choices between consequentialist calculations and normative appropriateness. But over time the obviousness of certain sorts of norms (for example against slavery or military conquest) becomes such an accepted part of the international political landscape that it becomes part of how actors routinely calculate consequences.
Hurrell, supra note 66, at 144.
184 Generally speaking, unless there is clear indication to the contrary, when an international organization (such as the United Nations) binds itself by treaty, such as the UN Charter, it also binds all subsidiary organs, including the UNDP and other funds and programs. Subsidiary organs of the United Nations, including the UNDP, regularly enter into commercial contracts and agreements with states in their own names; however, there appears to be ambiguity about the extent to which the UNDP has international legal personality independently of the UN Organization. For example, in 1991 when the UNDP signed an agreement with a government to establish a new international organization, the UN Office of Legal Affairs strongly criticized it. Schermers & Blokker, supra note 71, at 993-94 (4th rev. ed. 2003).
185 For a discussion of the relationship between these goals (or MDGs) and human rights and for suggestions on how to minimize the tensions and ensure that MDG-based development work is consistent with human rights, see OHCHR, Claiming the MDGS: A Human Rights Approach (2008)Google Scholar; see also Alston, supra note 112.
186 The more notable examples include UNDP, supra note 178; and UNDP, Power, Not Scarcity: the Global Water Crisis (Human Development Report, 2006).
187 For overviews, see United Nations Development Group, UN Country Coordination: Working Together for Development 56-58 (Synthesis of Resident Coordinator Annual Reports 2007) (July 2008)Google Scholar; UN Doc. E/CN.4/2003/128 (Mar. 20,2003) (written submissions by the UNDP to the former Commission on Human Rights). The former report, UN Development Group, supra, at 57, indicates that Bulgaria, Laos, the Philippines, Turkmenistan, Ukraine, and Vietnam were among the countries seeking UN support in connection with their international human rights treaty obligations in 2007. The UN country team in Ecuador has been among those active in supporting the Universal Periodic Review (UPR) process at the national level, and the UNDP is supporting the government of Bahrain in establishing a human rights and UPR database to facilitate the analysis of the human rights situation in that country. UNDP Human Rights and Justice Community of Practice Meeting, Geneva, Apr. 29,2008, UPR: Involvement of the UN System (2), at http://europeandcis.undp.org/uploads/public/file/OHCHR_presentation_UPR( 1).ppt#11 Google Scholar; Green Technology, Model for the World (Dec. 3, 2008), at http://green.tmcnet.com/news/2008/12/03/3828750.htm Google Scholar.
188 For the legal opinion, see supra note 120. The bank’s flagship World Development Report in 2006, with a certain degree of schizophrenia reflective of the diversity of contributors, contained important evidence-based arguments about why human rights matter in development. World Bank, World Development Report2006: Equity and Development (2006)Google ScholarPubMed [hereinafter World Bank 2006 Report]. The IFC’s work on human rights impact assessment is innovative and noteworthy in this regard, as previously mentioned, as is the World Bank Institute’s research on certain civil and political rights. Daniel, Kaufmann Human Rights and Governance: The Empirical Challenge, in Human Rights and Development, Google Scholar supra note 42, at 352. Groundbreaking research has been conducted under the aegis of the bank’s Development Economics Group on socioeconomic rights claims, and in the Social Development Group—in collaboration with the Inter-American Development Bank and the UN Economic Commission for Latin America—on a rights-based approach to social policy. Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Varun, Gauri & Daniel, M. Brinks eds., 2008)Google Scholar; World Bank, Realizing Rights Through Social Guarantees: An Analysis of New Approaches to Social Policy in Latin America and South Africa , Report No. 40047 (Feb. 1, 2008), available at http://www.worldbank.org/ Google Scholar.
189 ILC Draft Articles, supra note 67, Art. 35(1).
190 2007 ILC Report, supra note 88, at 205.
191 The Oxford Dictionary defines “neutral” partly by reference to impartiality, but also as “having no strongly marked characteristics.” Concise Oxford English Dictionary 959 (10th rev. ed. 2002).Google Scholar
192 The UN Charter in Article 101 (3) stipulates that UN staff will adhere to the highest standards of efficiency, competence, and integrity. On the nondiscrimination requirement, see Standards of Conduct for the International Civil Service, supra note 55, para. 14.
193 Concise Oxford English Dictionary, supra note 191, at 711; see supra note 55 (quoting Standards of Conduct for the International Civil Service, paras. 8, 12) (authoritative explanation for purposes of the United Nations).
194 For example, in the UN peace missions in the Democratic Republic of the Congo and Sudan, the UN Office for the Coordination of Humanitarian Affairs is physically situated outside the otherwise “integrated” mission.
195 UNICEF, for example, argues: “Neutrality for an organization that has taken on a rights-based approach must not. . .be an obstacle to tackling human rights violations. . . .It does not negate the need for some form of action, whether through strategic advocacy, simple presence, political demarches, local negotiations, etc.” UNICEF, 4.2: UNICEF’s Humanitarian Principles (July 2003), available at http://www.unicef.org/pathtraining/session4_pm.htm.
196 Uvin argues that practitioners of a human rights approach to development must abandon any pretense of neutrality and focus instead on “structural issues of inequality and power, on dynamics of exclusion and discrimination, and on institutions and processes of accountability and redress. Human rights provide the development practitioner with an intellectual language for conceptualizing these changes and a well-developed lens for approaching matters of institutional change, accountability, and politics.” Uvin, supra note 25, at 181-82.
197 “Conditionality,” in the development field, refers to obligations stipulated by donors as a prerequisite for aid, debt relief, or access to subsidized credit.
198 See, e.g., World Bank, Conditionality in Development Policy Lending , Report No. 41581 (Nov. 15, 2007).Google Scholar Some donors have spoken of a “postconditionality approach,” based on long-term dialogue and positive support to help countries meet their commitments. UK Foreign & Commonwealth Office, Department for International Development, Partnerships for Poverty Reduction: Rethinking Conditionality (Policy Paper, Mar. 2005), available at http://www.dfid.gov.uk/Documents/publications/conditionality.pdf Google Scholar. Participating states and organizations at the Accra High Level Forum on Aid Effectiveness pledged a number of reforms to conditionality practices so as to strengthen country ownership and the predictability of aid flows. The commitments include drawing conditions from developing countries’ national policies, limiting the number of conditions, and making public all conditions relating to disbursements. Accra Agenda for Action, supra note 163, para. 25.
199 IMF, Independent Evaluation Office, Structural Conditionality in IMF-Supported Programs (Jan. 3, 2008), available at http://www.ieo-imf.org/eval/ Google Scholar; Booth, supra note 43, at 3; Tony, Killick Conditionality and IMF Flexibility, in The IMF, World Bank and Policy Reform 253 (Alberto, Paloni & Maurizio, Zanardi eds., 2007).Google Scholar
200 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, 1456 UNTS 85.
201 The right to adequate housing, including protection against forced evictions, is protected under Article 11(1) of the ICESCR. See Comm. on Economic, Social & Cultural Rights, General Comment 4, The Right to Adequate Housing (Article 11(1) of the Covenant) (Dec. 13, 1991), UN Doc. E/1992/23, Annex III, at 114; General Comment 7, The Right to Adequate Housing (Article 11(1) of the Covenant): Forced Evictions (May 20, 1997), UN Doc. E/1998/22, Annex IV, at 113. The Committee Against Torture has interpreted the right to freedom from “torture or other cruel, inhuman or degrading treatment or punishment” to include a prohibition against demolition of housing where the above legal conditions are not met. Comm. Against Torture, Complaint No. 161 /2000, Dzemajl v. Serbia & Montenegro (Nov. 21, 2002), Report of the Committee Against Torture, UN GAOR, 58th Sess., Supp. No. 44, at 85, UN Doc. A/58/44 (2003).
202 Foresti, Booth, & O’Neill, supra note 172. Moreover, the OECD-DAC, while clearly dominated by the North, has offered guidance on how principled responses to human rights violations could be reconciled with partner governments’ legitimate concerns about conditionality. According to the OECD-DAC:
In responding to serious human rights situations, the focus should be on harmonised, clear signals and targeted actions that do not penalise the most vulnerable in society. Rather than reducing aid in response to human rights concerns as a first resort, donors should seek to deliver aid through a range of aid instruments and channels to continue supporting poverty reduction, and where possible, targeting their assistance to achieve progress on human rights. Establishing human rights as part of the development partnership will help enhance predictability, and provide a basis for open and transparent dialogue where needed.
OECD-DAC, supra note 129, princ. 9.
203 On inflation targeting, see Action Aid, Confronting the Contradictions: The IMF, Wage Bill Caps and the Case for Teachers , Apr. 2007, available at http://www.actionaid.org/main.aspx?PageID=581 Google Scholar (follow “Downloads, Confronting the Contradictions” hyperlink); IMF, Independent Evaluation Office, Report on the Evaluation of Poverty Reduction Strategy Papers (PRSPs) and the Poverty Reduction and Growth Facility (PRGF) (July 6, 2004), available at http://www.ieo-imf.org/eval/.Google Scholar
204 UN internal policy guidance has long recognized and sought to accommodate these tensions. ACC, Guidelines on the Functioning of the Resident Coordinator System, supra note 29. More significantly still, participating countries and organizations at the Accra High Level Forum on Aid Effectiveness committed themselves to engage in “open and inclusive dialogue on development policies.” They recognized that parliaments were essential to ensuring country ownership of the development process and undertook the following:
a) Developing country governments will work more closely with parliaments and local authorities in preparing, implementing and monitoring national development policies and plans. They will also engage with civil society organisations (CSOs).
b) Donors will support efforts to increase the capacity of all development actors—parliaments, central and local governments, CSOs, research institutes, media and the private sector—to take an active role in dialogue on development policy and on the role of aid in contributing to countries’ development objectives.
c) Developing countries and donors will ensure that their respective development policies and programmes are designed and implemented in ways consistent with their agreed international commitments on gender equality, human rights, disability and environmental sustainability.
Accra Agenda for Action, supra note 163, para. 13.
205 Foresti, Booth, & O’Neill, supra note 172.
206 The ordinary adjectival meaning of “sovereign” is “possessing supreme or ultimate power,” an idea that on its face sits uneasily with the principle of equality between states, although in international relations the more particular meaning is “acting or done independently and without outside interference.” Concise Oxford English Dictionary, supra note 191, at 1373Google Scholar. For an extensive discussion of the history of this term, including the travaux preparatoires of the San Francisco Conference, see Charter Commentary, supra note 79, at 68-91. The Commentary wains of the “untamed side” of sovereignty, reflecting its “strong political dimension” rather than a tendency to observe legal rules with care. Id. at 90.
207 “ The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law,” according to Max Huber, “have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.” Island of Palmas (Neth./U.S.), 2 R.I.A.A. 8 2 9 , 8 3 8 (Perm. Ct. Arb. 1928) (Huber, sole arb.).
208 Thomas, J. Biersteker State, Sovereignty and Territory, in IR Handbook, supra note 41, at 157, 167Google Scholar (“Social construction links identity with practice, and sovereignty is an inherently social concept. States’ claims to sovereignty construct a social environment in which they can interact, ‘the international society of states’. . ..”) (citation omitted).
209 Charter Commentary, supra note 79, at 81.
210 Jean-Marc Coicaud, International Democratic Culture and Its Sources of Legitimacy: The Case of Collective Security and Peacekeeping Operations in the 1990s, in The Legitimacy of International Organizations, supra note 79, at 256, 111.
211 Abram, Chayes & Antonia Handler, Chayes The New Sovereignty: Compliance with International Regulatory Agreements 27 (1995)Google Scholar, discussed in Kal, Raustiala & Anne-Marie, Slaughter International Law, International Relations and Compliance, in IR handbook, supra note 41, at 538, 548Google Scholar; Schmitz & Sik-kink, supra note 56, at 520; see also Francis Mading, Deng et al., Sovereignty as Responsibility: Conflict Management in Africa (1996).Google Scholar
212 Charter Commentary, supra note 79, at 160-68; Arbour, supra note 135; Oscar, Schachter The UN Legal Order: An Overview, in The United Nations and International Law 3, 20–21 (Christopher C., Joynered., 1997).Google Scholar
213 Uvin, supra note 25, at 61.
214 The literature is vast. See, e.g., Joel, Capellan & Simonpeter, Gomez Foreign Aid and Human Rights: The Latin American Experience , 27 Revista De Ciencia Polftica 67 (2007)Google Scholar; Cosmas, Mbuh The Seductive Discourses of Development and Good Governance, in Beyond the ‘African Tragedy’: Discourses on Development and The Global Economy 123, 129 (Malinda, S. Smith ed., 2000)Google Scholar; Eric, Neumayer Is Respect for Human Rights Rewarded? An Analysis of Total Bilateral and Multilateral Aid Flows , 25 Hum. Rts. Q. 510 (2003)Google Scholar; Eric, Neumayer Do Human Rights Matter in Bilateral Aid Allocation? A Quantitative Analysis of21 Donor Countries , 84 Soc. Sci. Q. 650 (2003)Google Scholar; John, Toye Interest Group Politics and the Implementation of Adjustment Policies in Suh-Saharan Africa, A]. Int’l Dev. 183 (1992).Google Scholar
215 As the Commentary neatly puts it in the context of an analysis of Article 2(7), “A State’s domestic jurisdiction is not more or less infringed upon because some other State’s violations of human rights have not been targeted at the same time.” Charter Commentary, supra note 79, at 162.
216 See, for example, the resources, compliance tools, and links available at the Web site of the Business Leaders Initiative for Human Rights, Legacy—Opening Memo, at http://www.blihr.Org/#, and the human rights impact assessment tool kit for companies produced by the IFC, supra note 122.
217 “The G-77 and China fully appreciates the importance of promotion of human rights, particularly the right to development for achieving sustained economic growth and sustainable development, in accordance with relevant General Assembly resolutions.” Farhat Ayesha, Statement on Behalf of the Group of 77 and China, Explanation of Position Regarding Decision on Agenda Item: 3 UNDP Strategic Plan 2008-2011, para. 5 (Oct. 5,2007), available at http://www.g77.org/statement/. The fact that the Executive Board required the UNDP to uphold internationally recognized human rights supports this view.
218 Declaration on the Right to Development, GA Res. 41/128, annex (Dec. 4,1986). The 1993 Vienna World Conference, the 1995 World Summit on Social Development in Copenhagen, the 2000 Millennium Summit, the 2005 World Summit, and the TCPR itself all affirm a broad and holistic vision of development in its social, economic, cultural, and political aspects.
219 Research by the World Bank Institute based on the assessment of large sets of cross-country empirical data suggests that civil and political rights may causally affect a country’s socioeconomic outcomes and performance. Kaufmann, supra note 188. Moreover, there is evidence that substantial violations of political and civil rights can have negative impacts upon a country’s growth performance. Robert, Barro Determinants of Economic Growth: A Cross-Country Empirical Study (1997).Google Scholar
220 UNDP, International Cooperation at a Crossroads: Aid, Trade and Security in an Unequal World (Human Development Report, 2005)Google Scholar; World Bank 2006Report, supra note 188; Daniel, M. Brinks & Varun, Gauri A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World, in Courting Social Justice, supra note 188, at 303, 303Google Scholar “([L]egalizingdemand for [socioeconomic] rights might well have averted tens of thousands of deaths in the countries studied in this volume [Brazil, India, Indonesia, Nigeria, and South Africa] and has likely enriched the lives of millions of others.”); Andy, McKay & Polly, Vizard Rights and Economic Growth: Inevitable Conflict or ‘Common Ground? Overseas Development Institute, Rights in Action, Mar. 2005, available at http://www.odi.org.uk/ Google Scholar; Edward, Anderson & Andy, McKay Human Rights, the MDG Income Poverty Target and Economic Growth, Background paper for UN/OHCHR Africa and Asia Regional MDGs and Human Rights Dialogues for Action (forthcoming 2009, on file with authors)Google Scholar.
221 Horizontal Inequalities and Conflict, supra note 52.
222 For an eloquent and powerful reminder of this imperative, see Dan, Seymour & Jonathan, Pincus Human Rights and Economics: The Conceptual Basis for Their Complementarity , 26 Dev. Pol’y Rev. 387 (2008).Google Scholar
223 For example, Pakistan, speaking on behalf of the G-77/NAM, issued numerous public statements in 2007 questioning the relevance of human rights to the UN operational activities for development. Yet Shaukat Aziz, then prime minister of Pakistan, was one of three cochairs of the High-Level Panel on System-wide Coherence, urging strong human rights reforms to UN operations. See Delivering as One, supra note 165. Furthermore, the UN system’s development programming in Pakistan, approved by the government, explicitly included a human rights approach and advocacy for the ratification of key international human rights instruments. See UN Development Group, United Nations Development Assistance Framework, Pakistan 2004-2008, at 23 (2003), available at http://www.undg.org/docs/7923/undaf.pdf Google Scholar; UN Development Group, 2006 Resident Coordinator Annual Report, Pakistan, available at http://www.undg.org/ Google Scholar.
224 On the latter concern, see Noëlle, Crossley Multilateralism Versus Unilateralism: the Relevance of the United nations in a unipolar World (2008)Google Scholar; Jed, Rubenfield Unilateralism and Constitutionalism , 27 N.Y.U. L. Rev. 1971 (2004)Google Scholar. On other concerns, see Hamid Yar, Hiraj Statement on Behalf of the Group of 77 and China During the Thematic Discussion at the 2007 Substantive Session of the ECOSOC (July 3, 2007), available at http://www.g77.org/statement/ Google Scholar; Challenges to The World Bank and IMF, supra note 152.
225 For example, it is difficult to reconcile the objection of G-77/NAM in connection with a human-rights-based approach to development programming with the statement on behalf of the Group of 77 and China by Farhat Ayesha of Pakistan quoted in note 217 supra. One could object to the instrumentalization of human rights as conveyed in the statement, but the recognition of the conceptual and functional relationship between human rights and development emerges clearly.
226 See Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, paras. 3-4, 17-23, in Report of the International Law Commission, Fifty-eighth Session, UN GAOR, 6lst Sess., Supp. No. 10, at 400, 408, 413-16, UN Doc. A/61/10 (2006); Campbell, McLachlan The Principle of Systemic Integration and Article 31(3) (c) of the Vienna Convention , 54 Int’l & Comp. L.Q. 279 (2005).Google Scholar
227 For a critique of the aggressive assertion of the liberal vision of rights, see Makau, Mutua The Complexity of Universalism in Human Rights, in Human Rights with Modesty 51 (András, Sajó ed., 2004)Google Scholar; and for a more far-ranging and provocative critique of the neoliberal tradition and perceived tactics of its main proponents, see Naomi, Klein The Shock Doctrine: The Triumph of Disaster Capitalism (2008)Google Scholar.
228 The topic of universality is old and remains controversial. While it has not been directly at issue in recent intergovernmental debates on human rights and development, translating and implementing the values and standards expressed in international human rights treaties clearly has both an aspirational dimension in the sense that there will always be room for improvement, to varying degrees, in the human rights situation in all countries, and a very concrete and pragmatic dimension to the extent that human rights standards are now, through decades of accumulated jurisprudence at the international and national levels, increasingly amenable to precise elaboration. The multilateral character, impartiality, independence, and universal membership of the United Nations give it a unique role and legitimacy in supporting national authorities’ efforts to socialize and give effect to the human rights obligations undertaken on their people’s behalf. The universality debate assumes greatest practical importance in these diverse national and local settings. While demographic survey evidence discloses common values and ideals the world over, we must at the same time acknowledge the complexity of underlying arguments about the universality of the dominant international human rights discourse and normative structure, which was influenced heavily by (although by no means bound within) Enlightenment philosophical traditions and liberal thinking about the relationship between the individual and the state. Yet if we take seriously the requirement for a deliberative legitimation of rights, and if embraced as an opportunity rather than rejected as a threat, differences and tensions can be seen as constructive and even essential in enabling an inclusive dialogue and strengthening conceptual and normative foundations for a more enduring system of justice founded on genuinely shared human rights values. For fuller discussion, see Brooke, A. Ackerly Universal Human Rights in A World of Difference (2008)Google Scholar; Amy, Bartholomew Human Rights and Post-Imperialism: Arguing for a Deliberative Legitimation of Human Rights , 9 Buff. Hum. Rts. L. Rev. 25 (2003)Google Scholar.
229 For a thoughtful analysis of some of the main geopolitical trends and fault lines, focusing on human rights voting patterns in the General Assembly, Security Council, and Human Rights Council, see Richard, Gowan & Franziska, Brantner A Global Force for Human Rights? An Audit of European Power at the UN , European Council on Foreign Relations Policy Paper (Sept. 2008), available at http://ecfr.eu/content/programmes/C36/.Google Scholar
230 For example, while participating states and development institutions at the Accra High Level Forum on Aid Effectiveness agreed by consensus that human rights should be taken into account in development and aid policy decisions, there was no corresponding commitment in the conclusions on South-South cooperation. Compare Accra Agenda for Action, supra note 163, para. 13(c), quoted in note 204 supra, with id., para. 19(e) (providing that “South-South co-operation on development aims to observe the principle of non-interference in internal affairs, equality among developing partners and respect for their independence, national sovereignty, cultural diversity and identity and local content”).
231 These were among the recommendations of the former secretary-general’s High-Level Panel on System-wide Coherence. See supra note 165 and corresponding text.
232 Richard, Longhurst Review of the Role and Quality ofthe United Nations Development Assistance Frameworks (UNDAFs) , Overseas Development Institute, May 2006, available at http://www.undg.org/archive_docs/8770-Review_of_the_Role_and_Quality_of_UNDAFs.pdf Google Scholar.
233 Advocacy need not be public, and all UN agencies may have a role to play, depending upon the issue and circumstances, which would transcend “good cop, bad cop” caricatures of development and human rights practitioners. Beyond the examples discussed above, see UNAIDS, UNAIDS and Broad Coalition Working Towards the Release of Nine Men Who Have Sex with Men in Senegal Who Have Been Convicted and Imprisoned, Press Release (Jan. 15, 2009), available at http://www.unaids.org/en/KnowledgeCentre/Resources/PressCentre/PressReleases/. Homophobia, criminalization of consensual adult sexual behavior, and denial of human rights represent major barriers to effective HIV responses. In this case, public human rights advocacy was led by UNAlDS headquarters, while the UNAIDS country office worked with the UNDP, bilateral donors, civil society, and public sector partners toward the release of the detainees in question.
234 Schmitz & Sikkink, supra note 56, at 522 (citing Paul Gordon, Lauren Power and Prejudice: The Politics of Racial Discrimination (1996)).Google Scholar
235 Michael, Ignatieff Human Rights: The Midlife Crisis , N.Y. Rev. Books, May 20, 1999, at 58, 58–59.Google Scholar