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Source: http://www.doksinet Privatizing Human Rights Initiatives: A Pragmatic Approach INTRODUCTION The subject-matter of this conference, “Entrepreneurship and Human Rights,” embraces multiple themes: crossing boundaries from the domestic to the transnational and between the public or government sector – on the one hand – and the private or business and nonprofit (NGO) sector – on the other hand. At the same time, it appears to encompass all sorts of privatization mechanisms and to include any number of human rights legal regimes. From this bounty of potential meanings, I have chosen to speak about U.S corporations transacting business abroad under a variety of privatization mechanisms and, in that context, to identify the major opportunities and the most critical obstacles for enforcing human rights norms within these transactions. That is to say, assuming the opportunity for, and feasibility of, privatizing human rights initiatives abroad, what problems can we anticipate

in developing an effective linkage between private enterprise and human rights? And, what solutions might we employ to dilute or defect, if not eliminate, the effect of anticipated problems? In this paper, I acknowledge a distinct policy preference for privatization and I identify several species of impediments associated with private initiatives as they relate to human rights. One set of impediments has to do with the public sector and the problems associated with developing and, then, enforcing a clearly articulated set of human rights norms. Another set of problems has to do with the limitations inherent in the public sector, generally, and the business sector specifically. A third set of problems has to do with the politics of ideologically driven perceptions about government and business. The paper suggests ways of improving the success rate of privatized human rights as an antidote to the pervasive problem of ideology. I. The Trend Toward Privatization: Its Promise and its

Problems It is commonplace to say that we live in an age of globalization and privatization. But there is nothing really new about global trade and transnational business entities. Nor is there anything particularly new about private companies exercising what might be considered government functions. Think, for example, of the extensive global trade that occurred in the 18th century and recall that, during that era, the British East India Company had its own private army. Moreover, “[t]he history of the United States began with an anti-globalization revolt directed against a particular company, not [just against] the British. [government]: the dumping of tea in Boston harbor was a protest not just against taxes but against the business practices of the East India Company.” 1 1 Harold James, “Is the ‘foreign policy’ of companies and NGOs a new phenomenon,” 21st Sinclair House Debate: Beyond the State?” “Foreign Policy” by Companies and NGOs at 10-11

(HerbertQuandt-Stiftung Bad Homburg v.d Höhe, 2004) “The history of the United States began with an antiglobalization revolt directed against a particular company, not the British monarchy: the dumping of tea in Boston harbor was a protest not just against taxes but against the business practices of the East India Company. Id At 12, citing, Emma Rothschild, The Politics of Globalization circa 1773, OECD Observer, 1 Source: http://www.doksinet What, then, makes our own era of globalization and privatization unique? What makes the difference and inspires conferences like this one? Among the most determinative of the changed circumstances we might identify three that make a critical difference: first, a growing recognition, at both national and international levels, of human rights norms and a consequent and increasingly insistent demand for public accountability for violations of the norms. Second, the development and dissemination of modern technology, which not only extends the

reach of transnational public and private interaction but also renders worldwide awareness of human rights violations (by public or private actors) nearly instantaneous. A third distinguishing characteristic of our own era of globalization is that it is taking place, concurrently, with a political milieu notable for its anti-government bias. It is a milieu in which we have become excruciatingly sensitized to the failings of government (though not, interestingly enough, quite so aware of the shortcomings of the private sector: business entities and NGOs). 2 Therefore, what distinguishes our current Age of Globalization from similar eras in the past is this critical juncture of three phenomena: (1) the mounting demand for observance of human rights norms; along with (2) technologically facilitated opportunities for, and awareness of, horrific and proliferating violations of the norms; and (3) a generalized resistance to problem-solving through government action. It is in this context,

and at this juncture, that we are challenged to determine how best to implement and enforce a corpus of human rights rules. Dec. 2001 NGOs have also shouldered public responsibilities in other eras James notes: “the Teutonic Knights and Knights of Malta [“proto-NGOs” in the Middle Ages] organized defense systems, fostered commerce, provided social networks and services (such as hospitals or schools) and of course did a great deal of fighting.” Id These examples of past eras of globalization and privatization point to the effects transnational activity can have on all sectors of a host society, including its impact on human rights. See also, Mark B. Baker, “Private Codes of Corporate Conduct: Should the Fox Guard the Hen House?” 24 U Miami Inter-American L. Rev 399, 402 (1993), (tracing multinationals to the 15th century) 2 See, e.g, Roy Hrab, “Private Delivery of Public Services: Public Private Partnerships and Contractingout, Research Paper #21 (June 2003) (on file

with the author), citing, Peter Aucoin, The New Public Management: Canada in Comparative Perspective (IRPP 1995); Lester Salamon, “The New Governance and the Tools of Public Action: An Introduction,” in Lester Salamon (ed.), The Tools of Government: A Guide to the New Governance at 1-47 (Oxford University Press: 2002). For a discussion of the politics of privatization, see, Jody Freeman “Extending Public Law Norms Through Privatization” 116 Harv. L Rev 1285 (2003) (demonstrating that privatization can be used to effect a “publication” of human rights norms). For an interesting analysis of the privatization phenomenon, See Julia Black, et. al, (eds) Regulatory Innovation: A Comparative Study (Edward Elgar 2005). 2 Source: http://www.doksinet Certainly, it is not an auspicious time for path-breaking human rights policy implementation by the U.S government 3 One can hardly imagine the current Congress leaping into the breach and creating new laws or regulatory agencies to

protect or extend human rights norms in the private sector. Moreover, the current Supreme Court has taken a moderately restrictive view of these norms in its business-related cases. 4 Nonetheless, we indisputably reside in a business-friendly environment and in an era of increasing privatization. And these two factors may point the way to new venues for developing and sustaining a rights-friendly foundation for entrepreneurship. Put simply, while the traditional source of human rights initiatives has been the public sector, there is reason to believe that, in today’s political climate, the private sector may offer more promise for human rights entrepreneurship. 5 In this context, we are prompted to envision the “privatization” of human rights initiatives. 3 But see, Anne-Marie Slaughter, A New World Order (Princeton and Oxford University Press, 2004) (advocating the development of a matrix of cooperative “government networks” comprised of regulatory agencies for addressing

and resolving pressing transnational problems). See also, Paul Schiff Berman, “From International Law to Law and Globalization.” 43 Colum J Transnt’l L 485 (2005) (describing an interdisciplinary approach to norm formation that does a remarkably better job of explaining the dynamic and organic process of International Law than the traditional perspective). 4 See, generally, Barbara K. Bucholtz, “Employment Rights and Wrongs: ADA Issues in the 2001-2002 Supreme Court Term,” 38 Tulsa L. Rev 363 (2002); “Gestalt Flips by an Acrobatic Supreme Court and the Business-Related Cases on its 2000-2001 Docket,” 37 Tulsa L. Rev 305 (2001); “Private Sector Issues in a Public Sector Retro-lution: The Supreme Court’s Business-Related Decisions in the October 1999 Term,” 36 Tulsa 153 (2000); “Business As Usual in a ‘Dollar Democracy’: A Review of Business-Related cases in the 1998-1999 Supreme Court Term,” 35 Tulsa L.J 485 (2000); “Sticking to Business: A Review of

Business-Related Cases in the 1997-1998 Supreme Court Term, 34 Tulsa L.J 207 (1999) 5 Political ideology and anti-government animus are, of course, not the only reasons why public sector initiatives are not appropriate. The sheer weight of private activity in the world is also a factor See, John Christopher Anderson, “Respecting Human Rights: Multinational Corporations Strikeout,” 2 U. Pa J Lab & Emp. L, 463 467 (2000) (reporting that in 2000 there were approximately 35,000 multinationals, controlling more than ¼ of the world’s assets.) See also, Lucien J Dhooge, “Beyond Volunteerism: Social Disclosure and France’s Nouvelles Regulations Economiques,” 21 Ariz. J Int’l & Comp L 441, 3 Source: http://www.doksinet In common parlance, privatization suggests the relinquishment of government functions to the private sector. But privatization is a term that has been defined so broadly that, as preliminary matter, we might identify the kinds of business-related

initiatives that qualify as “privatized.” For purposes of this analysis I include the following: (1) “outsourcing” or the contracting out of goods and services previously supplied by the government; (2) divestiture of government property or government services to private enterprise; (3) deregulation, by the government, of rules and procedures for operating private entities; 6 (4) public-private partnerships in which governmental activities and authority are shared with private entities; 7 and (5) “very soft law” or “governing without government:” practices whereby private entities voluntarily elect to impose otherwise nonbinding norms of conduct (like human rights norms) on their operations. 8 Given this broad panoply of venues for private enterprise and the public preference for private (business) sector over public (government) sector activity, this would seem to be a uniquely opportune time to expand market-based initiatives into the field of human rights. 9 However,

we can hardly ignore the headline cases involving Unocal in Myanmar (Burma) or 443, 453 (2004) (explaining that, given the growth of the private sector, “the modern global economy is characterized by increasing concentrations of power in private actors.”) 6 See, generally, Ronald A. Cass, “Privatization: Politics, Laws and Theory,” 71 Marquette L Rev 449 (1988) (delineating four basic kinds of privatization and identifying the constitutional limits to privatization); Rob Hrab, “Private Delivery of Public Services: Public Private Partnerships and Contracting-out” pp. 1-16, 45, supra note 2 7 8 Jack M. Beerman, “Privatization and Political Accountability,” 28 Fordham Urb L J 1507, 1519 (2001) Ulrika, Mörith (ed.), Softlaw in Governance and Regulation: An Interdisciplinary Analysis (Edward Elgar Pub. 2005) (discussing the nonbinding rules or codes of conduct and their importance as a “softlaw” regulatory tool, especially in the E.U) 9 See, generally, Lester

Salamon, “The New Governance and the Tools of Public Action: An Introduction” in Lester M. Salamon (ed) The Tools of Government: A Guide to the New Governance, pp 1-10 (Oxford Univ. Press 2002); ES Savas, “Opportunities in Privatization and Outsourcing,” in Robin Johnson and Norman Walzer (eds.), Local Government Innovations: Issues and Trends in Privatization and Manage Competition (Connecticut 2000). 4 Source: http://www.doksinet Chevron Texaco and Royal Dutch Shell in Nigeria, 10 reminding us that for every instance of exemplary corporate conduct in the field of human rights; 11 there is the very real possibility of human rights abuses by private corporations. The danger that corporate conduct might facilitate, or even, initiate human rights abuses should not be downplayed. Amy Chua puts the problem 10 See John Christopher Anderson, “Respecting Human Rights,” 2 U. Pa Lab & Emp L 463 (2000) supra, note 5, (identifying BMW, Volkswagen, Siemens and Bayer as

allegedly violating human rights of citizens in other countries); See also, Daphne Eviatar, “A Big Win for Human Rights,” The Nation at pp 20-21 (May 9, 2005) (identifying approximately two dozen cases filed against multinational corporations for human rights abuses committed in complicity with host country governments and noting that Unocal is the first to reach a money damages settlement.) Chevron Texaco, for example, is being sued for its association with the Nigerian military which allegedly destroyed two villages to protect oil operations in the Niger Delta. Id At 21 For a description of the Unocal case, see infra at notes 45, 46 and accompanying text For a discussion of Royal Dutch Shell’s involvement with military massacres in Nigeria, see, Douglas Cassel, “Corporate Initiatives: A Second Human Rights Revolution?” 19 Fordham Int’l L. J 1863, 1967 (1996). 11 “Workplace improves for gay workers, report says,” Washington Post, cited in, Tulsa World A-8 (June 6,

2005) (quoting the President of the Human Rights Campaign [a national advocacy organization] on the progress of Fortune 500 companies in conferring protections and benefits on gay and transgendered employees, “‘As we suspected, corporate America is well ahead of America generally in terms of extending basic rights to all people.’” The group’s report, “The State of the Workplace for Lesbian, Gay, Bisexual and Transgendered Americans 2004” shows nondiscrimination policies up by 89 percent since 2003. An officer for another advocacy group, Society for Human Resources Management, explains the statistics two ways: “business reasons” (recruiting and retaining workforce talent) and employee relations (the employer wants to be perceived as fair to all of its employees). Id With regard to rampant human rights abuses in Myanmar, Bayer and other companies left the country to avoid being associated with the kinds of abuses Unocal allegedly committed there. Anderson, supra Note 4

5 Source: http://www.doksinet starkly in the thesis of her path breaking text, World on Fire. 12 There she states unequivocally that the entrepreneurial dynamics of private companies and the markets they comprise have been antithetical to democratic principles and human rights norms. In her Grotius lecture, she explained that while the conventional wisdom conceives markets and democratic principles as mutually reinforcing, in fact privatized market forces, as they are currently promoted, have exacerbated the most egregious occurrences of genocide since World War II. 13 Clearly, given current realities of power in global relations we stand poised on a fulcrum where private initiatives may tip the balance for or against human rights initiatives. Thus, the question devolves into one of nuance and caution: What obstacles challenge the potential for an effective expansion of human rights through corporate initiatives? What, if anything can we do to surmount these obstacles? The

literature identifies three major obstacles: first, the “cabining” or carving out of specific human rights norms applicable to private sector entities; second, the problem of 12 Amy Chua, World on Fire: How Exporting Free-Market Democracy Breeds Ethnic Hatred & Global Instability (2003). See also, Amy C Chua, “The Paradox of Free Market Democracy: Rethinking Development Policy, 41 Harv. Int’l L J 287 (2000) 13 Amy Chua, Sixth Annual Grotius Lecture, 98 Am. Soc’y Int’l L Proc 1 (2004) 6 Source: http://www.doksinet accountability or enforcement; 14 and third reckoning with the problems posed by the inherently profit-driven mandate of the corporation itself. To these three obstacles, I add a fourth: the overarching problem of ideology as a policy driver in our deliberation on the subject. And finally, as to each obstacle, I draw on existing scholarship, empirical studies and my own anecdotal experience with corporate governance to suggest ameliorating devices, if

not solutions, to the challenges posed by privatizing human rights initiatives. II. Human Rights Norms: The Dual Challenges Of Articulation and Enforcement A. Sources of Human Rights Norms Applicable to Multinational Corporations We begin, as we must, with the rules themselves. And, there, the challenges begin as well, for international law (commonly acknowledged to be the source for human rights iteration) is caught between the Charybdis of multiple rules – a dizzying array of rule regimes which include human rights norms 15 and the Scylla of unenforceability: too many rules; too little muscle. To minimize the rule identification problem, it may suffice for purposes of this paper to narrow the available field to two sets of norms: (1) the Universal Declaration of Human Rights 14 Privatization, in every context, gives rise to problems of accountability. See, Beerman, supra. Note 6 at 1509 -1516 (noting that direct constitutional constraints on privatization, including the

delegation doctrine and the Appointments Clause (at U.S Const art II § 2 cl 2), do not present impediments to most instances of privatization under current Constitutional jurisprudence. See also Daphne Barak-Erez, “A State Action Doctrine For an Age of Privatization,” 45 Syracuse L. Rev 11691171 (1995) (emphasizing that under current state action doctrine many constitutional constraints do not apply to government activities that have been privatized: “While government actions are subject to the civil rights guaranteed by the Constitution, individuals are free to disregard them, as long as this does not infringe upon any other particular law, the Civil Rights Act of 1964 being a prominent example.” “In order to claim an infringement of a constitutional right, it is essential to establish that the State [in the broadcast sense of the notion, either at the state or the federal level] is responsible for the infringement.” Id at 11711172) See also, Richard B Stewart and Cass R

Sunstein, Public Programs and Private Rights, 95 Harv L. Rev 1193, 1206 et seq (an in depth discussion of the jurisprudence of Private Rights of Action) See, Jody Freeman, “The Private Role in Public Governance,” 75 N.YU L Rev 543 (2000) (developing a theory of “aggregate accountability” between public and private actors). 15 Lucien Dhooge reports that the University of Minnesota Human Rights Library lists 275 separate transnational instruments relating to human rights. Dhooge, supra, note 5 at 442 7 Source: http://www.doksinet (Universal Declaration) 16 and (2) the Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises (Human Rights Principles). 17 The Universal Declaration is an obvious choice because of its foundational status and because, by its terms, it can arguably be applied to private parties as well as nation-states. 18 The Human Rights Principles are also an easy choice. Although the Human Rights Principles

are still pending before the U.N Economic and Social Council (ECOSOC), and, therefore, do not yet have the force of international law, 19 their provisions are specifically applicable to business conduct. In fact, both state and non-state institutions rely on them. 20 16 G.A Res 217 A (III), UN GAOR, 3rd Sess, UN Doc 8/8/0 (1948) 17 UN ESCOR Comm’n on Human Rights, 54th Sess., Agenda Item 4, UN Doc E/Sub 2/2002/WG.2//WP1/Add1 (2002); the revised version, E/CN4/Sub2/2003/12 Rev 2 (dated 26 Aug 2003, resolution adopted 13 Aug., 2003) is available at http://www.unhchrch/huridocda/huridocansf/o/64155e7e8141b38cc1256d63002c55e8?OpenDocument For an extensive discussion of the Human Rights Principles, see, Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nations’ Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Social Responsibility in International Law, available at http://www/personal/psu.edu/1cb11 18 “[E]very

individual and every organ of society . ” supra note 16 at 72 But see, Stephen G Wood and Brett G. Scharffs, “Applicability of Human Rights Standards to Private Corporations: An American Perspective, 50 Am. J Com L 531, fn 73 (2002) (“Although the language [of the Preamble] is broad, it does not appear to contemplate the inclusion of corporations”). 19 They have, however, been adopted by the U.N Sub-Commission on the Promotion and Protection of Human Rights and endorsed by, among other advocacy groups, Amnesty International and Human Rights Watch. Dhooge, supra, note 5 at 471; Anderson, supra note 5 at 474-475 20 Among the rights protected by the Human Rights Principles are (1) The Rights to Equal Opportunity and Non-Discriminatory Treatment; (2) The Right to Security of Persons; (3) Workers’ Rights; (4) Respect for National Sovereignty and Local Communities; (5) Consumer Protection; and (6) Environmental Protection. For a discussion of the foregoing, see Dhooge supra.

note 5 at 472-475 In addition to the Universal Declaration and the Human Rights Principles, “virtually all major informational governmental 8 Source: http://www.doksinet Guided by these two regimes of international norms, some national-states have attempted to develop their own human rights standards for corporations. France, for example, has implemented a disclosure law, mandating its publicly-held companies to report on their compliance with the Human Rights Principles. 21 In the United States, President Clinton promulgated a set of voluntary standards for corporate conduct abroad, call “Model Business Principles,” 22 which followed guidelines enumerated in the Human Rights Principles and asked corporations to adopt them. And the State Department, in conjunction with the energy industry and NGO groups has developed a similar voluntary code of conduct for energy-related businesses. 23 The private sector itself has relied on these international norms in developing a variety

of human rights codes: Some are industry-based, others are geographically bounded, still others are internal and applicable only to one corporation. The Sullivan Principles and the MacBride Principles set the standards for these private initiatives. The Sullivan Principles were proposed by a member of the Board of Directors of General Motors for doing business in South Africa under Apartheid, and the success of this Code is evinced by the 125 corporate signatories to the Code and their concerted actions under it. 24 Similarly, the MacBride Principles (initiated to address discrimination problems in Northern Ireland) met with success and were adopted by almost half of the eighty publicly traded U.S corporations doing business in Northern Ireland in the mid 1990’s. 25 Another approach has been taken by Business for Social Responsibility organizations interested in international trade and investment developed . [“similar norms for multinational corporate conduct”], Baker,

supra, note 1 at 410. 21 22 Dhooge, supra., note 5 at 447-448 Anderson, supra., note 5 at 482-483 See also, Douglas Cassel, “Corporate Initiatives: A Second Human Rights Revolution,” 19 Fordham Int’l L. J 1963, 1974 (1996) Both authors observe that President Clinton’s initiative was a trade-off for his refusal to link trade and human rights issues in his China policy. 23 See, U.S DEP’T OF STATE, BUREAU OF DEMOCRACY HUMAN RIGHTS & LABOR, FACT SHEET: VOLUNTARY PRINCIPLES ON SECURITY AND HUMAN RIGHTS, available at http://www.stategov/g/drl/rls/2931pfhtm (Feb 20, 2001) and discussed in Dhooge, supra, note 5 at fn 142 and accompanying text. 24 25 For a discussion of the Sullivan principles and related codes, see, Baker, supra. note 1 at 418-419 For a discussion of the MacBride principles, see, Douglass Cassel, “Corporate Initiatives: A Second Human Rights Revolution?,” 19 Fordham Int’l L. J 1963, 1971-1973 (1996) The Arcos Principles 9 Source:

http://www.doksinet (BSR), an association for consultation about best business practices, especially with regard to human rights. 26 BSR is made up of more than 800 small to mid-sized corporations engaged in transnational business. 27 Other corporate associations for encouraging voluntary compliance with codes of human rights norms include The Apparel Industry Partnership Workplace Code of Conduct and the accountability standards set by the Council on Economic Priorities Accreditation Association. 28 Finally, about 10% of the largest multinationals, including Levi Strauss, Starbucks and Timberland, have instituted their own internal codes of conduct. 29 There can be no question that the spread of these codes from the public sector to the private sector is indicative of the increasing pressure being thrust upon multinationals to assume more responsibility with respect to human rights. 30 It also illustrates the discursive nature of constituted a similar code for multinationals

operating in Cuba. BT Mock, “Corporate Transparency and Human Rights,” 7 Tulsa J. Comp & Int’l L 15 (2000) 26 27 28 29 For more discussion about that association, see, id. at 1973 Id. For a discussion of these associations, see Mock supra., note 25 at 22 Cassel, supra. note 22 at 1973, citing, Franklin Research and Development, a “Boston-based social responsibility investing firm.” Id; for a discussion of internal code provisions, see, Baker, supra note 1 at 420-429. 30 Professor Backer points out that the proposed U.N Human Rights Principles (or Norms) alone “point to the evolution of fundamental changes in global thinking about corporation [and suggest] . a shift from a private to a public law basis for corporate regulation. Backer supra, note 17 at 1; 10 Source: http://www.doksinet law’s development, 31 and the need to understand law as “part of a broader set of inter-related, rights-protecting processes.” 32 B. The Problems of Transparency and

Enforcement: Strategies of Amelioration Nonetheless, as a practical matter, all of these voluntary codes of conduct suffer from two obvious shortcomings: disclosure (or transparency) and compliance (or enforcement). 33 That is to say, even assuming the adequacy of the specific norms delineated in any particular code, 34 their effectiveness is in doubt because for the most part, and especially with regard to state or non-state codes developed by American institutions, disclosure and compliance remain voluntary. 35 Quite obviously, no one expects rigorous adherence to rules when disclosure and compliance are merely voluntary. 1. The Business Sector: Strategies of Amelioration 31 Christian Joerges, “The Challenges of Europeanization in the Realm of Private Law: A Plea for a New Legal Discipline, 14 Duke J. Comp & Int’l L 149 (2004) (discussing the “Europeanization” of private law within Western Europe’s nation-states as a “contest of legal disciplines”). 32 Cassel,

supra., note 22 at 121 Nonetheless, it is hard to resist the observation that European countries seem to embrace the processes with more enthusiasm and commitment than the U.S See, eg, Rafael LealArcas, “The Reception of European Community Law in Spain, 1 Hanse L Rev 1 (2005) (discussing the synergistic effect of EU norms and the U.N’s Universal Declaration on Spain’s national law); and, Dhooges, supra., 5 (discussing France’s corporate disclosure law, Article 116 of its Nouvelles Regulations Economiques, as a mechanism for implementing the U.N’s proposed Human Rights Principles) 33 The codes enacted by some European countries have more teeth than the various kinds of U.S voluntary Codes. See, eg, Dhooge, supra, note 5, at 449-452 (delineating the various items of mandatory disclosure required by the French code). 34 President Clinton’s Model Principles, for example were criticized by Human Rights Watch/Asia as “‘far too vague and broadly worded to have any impact

on the specific problem they were meant to address: human rights violations in China.”’ Cassel, supra, note 22 at 1975-1976 See also, infra notes 37-38 and accompanying text. 35 Of the voluntary codes to which U.S corporations subscribe, the Sullivan Principles have the most effective disclosure requirements because the signatories to the Principles are assessed dues each year to hire outside compliance auditors, whose compliance reports are made public. See, Mock, supra note 25 at 21. Mock notes that the Arcos Principles and the Apparel Industry Code also provide for outside audits, though they are not necessarily made public. Internal codes of conduct and industry codes, like the RUGMARK code (for the manufacturers of rugs) are so discretionary and voluntary that they can be considered merely window dressing. Id 11 Source: http://www.doksinet But even assuming the limitations of their voluntary nature, much can and should be done to improve the effectiveness of the codes.

Two scholars have offered insightful suggestions Professor Mock, in an address to the American Bar Association suggested three low cost improvements: (1) first, develop uniform standards and reporting procedures; (2) second, mandate annual external audits, underwritten by signatories, and provide that audit reports be made public; (3) third, require signatories to participate in training sessions for their employees; (4) fourth, afford signatories in good standing “certification marks” to be affixed to their products as evidencing their “good corporate citizenship” with regard to human rights norms. 36 All of these measures could be put into operation by the private sector, on a voluntary basis, without incurring substantial administrative costs or expanding the reach of government regulation. At the same time they would significantly improve the effectiveness of the codes and give them more credibility than they have today . as representing something more meaningful than

“mere public relations gimmicks.” 37 Professor Ratner has also added an important and nuanced dimension to the discourse about codes by distinguishing various levels of corporate culpability for human rights violations according to the degree of actual authority the multinational might have in a given situation and the magnitude of the rights at issue. Thus, he identifies four indicia for determining culpability: “[1] the corporation’s ties with the [host] government; [2] its nexus to affected populations, [3] the particular human right at issue, and [4] the structure of the corporate entity.” 38 Each of these factors adds gravitas to code provisions (whether they emanate from a governmental body or from a private source) by engaging the rules within the real world context to which they are to be applied. Ratner explains: “For example, are corporations responsible for human rights abuses if they simply invest in a repressive society? . if they know the [host] government

will violate human rights in order to make an investment project succeed? . if they share with the [host] government information on suspected troublemakers? . if they provide bad working conditions?” 39 This real world dimension could inspire a more serious regard for code building and code enforcement. After all, multinationals do not operate in a vacuum: market opportunities may lead companies to operate in host countries rife with locally sanctioned human rights abuses. Should they refuse to do business there? And if not, how should they operate in that context? Other aspects of the problem arise when societal values in a host country violate social standards of the corporation’s home country. In that context, to what extent are corporations required to resist, criticize or intervene in the affairs of a “sovereign” host nation’s cultural norms? On the other hand, host nations in developing parts of the world often argue that 36 37 38 Id. Anderson, supra., note 10

at 489 (enumerating the several deficiencies of voluntary codes of conduct) Steven R. Ratner, “Corporations and Human Rights: A Theory of Legal Responsibility,” 111 Yale L J 443, 450. 39 Id. at 448 12 Source: http://www.doksinet they should be permitted a certain laxness in standards if they are ever to catch up economically with the industrialized world. To what extent are multinationals required to accede to or to resist that argument? 40 In other words, Ratner’s call for a nuanced and realistic body of rules can take codes of conduct, of every stripe, beyond the realm of platitudes and into the conflicted realm of reality where they are to be applied. If the substantive provisions of codes of conduct are to be taken seriously, even though procedural problems of disclosure and compliance remain, then code drafters must work through the very real problems Ratner’s analysis raises. So, even though we must acknowledge the inherent limitations of codes when compliance is

merely voluntary, there are techniques for enhancing the efficacy of voluntary codes without reliance on public sector enforcement mechanisms. 2. NGOs and Strategies of Amelioration Another private sector avenue which has enhanced the corporate social responsibility effort, generally, is associational activity in the form of NGO oversight and advocacy. NGO efforts have unquestionably raised the bar of corporate accountability by employing a number of different strategies for encouraging or inducing corporate compliance. These include making the public aware of human rights abuses by multinationals and rallying public opinion and concerted activity in response. 41 That concerted activity can include lawsuits, 42 boycotts/endorsements 43 40 James, supra. note 1 at 13-15 “Companies which try to impose better norms will easily be accused of a new sort of imperialism, a human rights imperialism.” 41 42 43 Ratner, supra., note 38, at 447-448 Id. Jenness Duke, “Enforcement of Human

Rights on Multi-national Corporations: Global Climate, Strategies and Trends for Compliance,” 28 Denv. J Int’l L & Pol’y 339, 352 – 353 (2000) 13 Source: http://www.doksinet and, the very innovative and effective socially responsible investing movement. 44 This kind of non-state activism demonstrates that even in an era of anti-government bias strategies can be adopted to enhance voluntary corporate acquiescence in observance of human rights norms. 3. The Public Sector: Strategies of Amelioration But the perennial challenge to privatization remains one of accountability. And transferring the problem of accountability from domestic activities under domestic laws and law enforcement regimes to the international or transnational realm ratchets up the difficulties exponentially. Moreover, it would be foolhardy, indeed, to simply ignore the public sector and the political muscle it can bring to the project. As evidence, what has emerged in recent years as an extremely

effective tool for sanctioning the most egregious instances of human rights abuse is 44 Dhooge, supra., note 5 at 457-458 Both individual investors and institutional investors are encouraged to make investment decisions that include consideration of corporate social responsibility. As an example, Dhooge mentions the human rights policy of the California Public Employees Retirement System (CalPERS) and other institutional investors who measure social responsibility as a part of their portfolio decisions. Institutional of higher education also consider corporate responsibility as a factor in investment decisions-making. See, Erin Strout, “Stanford U Divests Stock in 4 Companies That Do Business in Sudan” (noting that Stanford follows Harvard, in divesting its stock in several companies, including Petro China Company Ltd., whose business in Sudan supports the government there Petro China’s parent corporation is involved in oil production in Sudan. ABB Ltd provides technologies for

basic industries there. Sinopee Corporation and Tatneft are energy corporations operating in Sudan The President of Stanford commented “[I]t was clear that the genocide occurring in Darfur, which appears to be at least partly enabled by these four companies, is in direct opposition to Stanford University’s principles.”) and Erin Strout,” “Harvard U. to Divest Stock in Companies Tied to Sudanese Government,” The Chronicle of Higher Education 6/13/05. 14 Source: http://www.doksinet the venerable Alien Torts Claims Act (ATCA). 45 There is no need here, to review its utility as 45 Alien Tort Claims Act, 28 U.SC § 1350 (2000) (affords federal court jurisdiction for any civil action “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States). For a more complete discussion of the Alien Tort Claims Act (ATCA) see, Marisa Anne Pagnattaro, “Enforcing International Labor Standards: The Potential of the Alien Tort Claims

Act,” 37 Van. J Transnat’l L 203 (2004). 15 Source: http://www.doksinet an effective enforcement mechanism and its application in the Unocal 46case, among others. But there can be no doubt that its prospective effect on future multinational action, as well as its 46 “Unocal” consists of the Unocal Corporation and Union Oil Company of California, doing business in Burma (now, Myanmar) as “Unocal.” The International Labor Rights Fund (ILRF) brought the first international labor rights case on behalf of the Federation of Trade Unions of Burma and the villagers in the Tenasserim region in Myanmar for egregious human rights abuses (including “forced labor, murder, rape and torture”) committed during Unocal’s construction of a pipeline in the area. Three cases were filed against Unocal for these abuses: Doe I. v Unocal Corp, 176 F Supp 880 (CD Cal 1997); National Coalition Gov’t. of the Union of Burma v Unocal, Inc, 176 FRD 329 (C D Cal 1997) and Doe I v Unocal

Corp., 110 F Supp 2d 1294 (CD Cal 2000) Unocal recently settled Daphne Eviatar, “A Big Win for Human Rights,” The Nation at pp. 20-21 (May 9, 2005) ILRF has three other labor rights cases pending under ATLA: SINAL TRAIN AL v. Coca-Cola, No 01-03208-CIV, P1 (SD Fla July 20, 2001) (alleging that Coca-Cola and other defendants engaged in a terrorist campaign against union members); Aldana v. Fresh Del Monte Produce, Inc, No 01-3399-CIV (SD Fla) (alleging that Del Monte and other corporations consorted with a private security force to violate human rights of the workforce on a certain plantation; and The Estate of Rodriguez v. Drummond Co, Inc, 256 F Supp 2d 1250 (ND Ala 2003)(filed in 2002 and available at http://www/laborrights.org [alleging similar atrocities against labor unionists.]); and another recent labor-related case, Does I v The Gap, Inc, No CV-01-0031, PP 159-90 (D.NMI July 25, 2002) In addition to these labor-rights cases; several cases have been brought under ATCA for

human rights abuses: Filartiga v. Pena-Irala, 630 F 2d 876 (2d Cir 1980) (this was the first ATCA human right suit); Tel-Oren v. Libyan Arab Republic, 726 F 2d 774 (DC Cir 1984), cert denied, 470 U.S 1003 (1985); Forti v Suarez-Mason, 672 F Supp 1531 (ND Cal 1987); Mujica v Occidental Petroleum, No. CV03-2860-WJR (CD Cal Oct 16, 2003); John Doe v Exxon Mobil, No 1:01 CV01 357 (D.DC June 20, 2001); Bowoto v Chevron Texaco Corp, No C99-2506 SI (ND Cal Aug 30, 2002); and Andi v. Dyncorp (DDC Sept 2001) available at http://www/laborrightsorg For more discussion of ATCA and the cases brought pursuant to its terms, see, Eileen Rice, “Doe v. Unocal Corporation: Corporate Liability for International Human Rights Violations, 33 U.SFL Rev 153 (1998); Shanaira Udwadia, “Corporate Responsibility for International Human Rights Violations,” 13 S. Cal Interdisc L J 16 Source: http://www.doksinet potential for imposing liability in any particular case, is real and significant. Short of the

Damacles sword of litigation under ATCA, there are other public sector initiatives that may reap significant benefits for human rights enforcement in exchange for relatively modest changes in public law. An obvious example is suggested by two forms of privatization: public-private partnerships and “contracting-out.” In the former context, the public entity in the partnership can be made responsible for overseeing the private entity’s conduct in the venture and the public agency can be held accountable for human rights violations that are committed by the private party within the partnership operations. 47 In the context of outsourcing or “contracting out” the provisions of the contract can bind the private party to human rights norms as a part of its contractual obligations. 48 In both cases, the obligations are entered into, voluntarily, as a mere component of the private party’s consideration which it exchanges for the opportunity of a profitable bargain with the

government. The onus of government regulation is thereby made more politically palatable. The same logic of carrot and stick applies to the provisions of loan guarantees by the government. 49 But government regulation by way of these voluntary contractual arrangements obviously has limited applicability and opportunities for government regulation outside the realm of public/private contracts face real political problems. 50 Lobbyists and politicians have been inordinately 359 (2004); and Lorelle Londis, “The Corporate Face of the Alien Tort Claims Act: How An Old Statute Mandates a New Understanding of Global Interdependence, 57 Me. L Rev 141 (2005) For a discussion of the Alien Tort Claims Act that challenges media, corporate and White House “hysteria” about the use of the Act as a strategy for encouraging and enforcing compliance with human rights norms, See, Harold Hongju Koh, “Separating Myth From Reality About Corporate Responsibility Litigation, 7 J. Int’l Econ L 263

(2004). 47 48 49 50 See, generally, Beerman, supra., note 7 See, generally, Freeman, supra., note 2 Duke, supra., note 43, at 350 A more difficult political case to make arises from the argument that trade agreements should be held to the same laborious procedures for Congressional authorization that are imposed on human rights conventions, protocols and treaties. Trade agreements are authorized by “fast track” simple majorities of Congress; treaties require the consent of two-thirds of the Senate, pursuant to Article II of the Constitution. For a more complete discussion of the differences and difficulties to which these differences give rise, see, Connie de la Vega, “Human Rights and Trade: Inconsistent Application of Treaty Laws in the United 17 Source: http://www.doksinet successful in conveying the message that government regulation harms the competitive position of U.S multinationals and the political success of that campaign imposes a serious limitation on

government initiatives to enforce human rights norms. III. From Ideology To Pragmatism: Not all Profit Motives Are Created Equal In addition, the very nature of the corporation may be viewed as an impediment to privatized human rights initiatives. Inherent characteristics of business entities, specifically, and of private sector associations, generally, may limit the success of these initiatives. It is obvious, for example, that many disclosure problems relate to a characteristic common to all private sector associations: the presumption that they have a right to privacy; that in the absence of a valid, enforceable statute or regulation, private associations have no obligation to disclose anything about their operations. Add to that, the corporate culture of secrecy premised on what is perceived to be a necessary precaution to protect valuable corporate information from rapacious competitors and it is no wonder that voluntary disclosure is problematic. 51 It may be worth noting, in

passing, that, with regard to government entities, the presumption runs the other way: transparency is, in the absence of national security concerns, required. Because transparency or disclosure is a predicate for enforcement and a necessary component of compliance, this inherent characteristic of private organizations is a real impediment to successful voluntary human rights initiatives. But, with regard to business organizations, (as opposed to other private associations, like NGOs) the most commonly identified limitation on the efficacy of voluntary compliance with human rights norms is the mission of the business entity, itself: the bottom line. Corporations, it States, 9 UCLA J. Int’l L & Foreign Aff 1 (2004) Privileging economic interests over human rights values in this ostentatious manner is difficult to justify and casts considerable doubt on the political establishment’s qualifications as a world leader in human rights. Id at 4 (noting that the United State’s

failure to secure a seat on the UN Commission on Human Rights in 2001 maybe partially attributable to the comparative short shrift it affords human rights treaties. Another troubling problem area of public law is the state action doctrine. Many scholars have decried its narrow interpretation and limited applicability to private activity, even privatized activity that was, traditionally governmental. See, eg, Barak-Erez, supra, note 14 at 1192 See also, Gillian E Metzer, “Privatization as Delegation,” 103 Column L. Rev 1367 (2003) (proposing that privatization be interpreted as a form of delegation under the state action doctrine, thereby broadening the doctrine’s coverage). 51 As the headlines have reminded us from Enron to A.IG, information, at least truthful information, may not be forthcoming even when mandated by law (like the reporting requirements under the Securities Exchange Act). References to the corporate governance debacle, from Enron to AIG, are legion For a recent

chapter in the (still) unfolding drama, see, Paul Fain, “U. of California to Share in $2 – Billion Settlement of Lawsuit Stemming From Enron’s Bankruptcy”, The Chronicle of Higher Education, 6/13/05. 18 Source: http://www.doksinet is said, must maximize shareholder wealth. Historically, that rule was strictly enforced 52 Today under the modern view, corporations can expand their mission to other purposes, including social responsibility. But only to a limited extent 53 The bottom line remains the bottom line In fact, some commentators continue to take exception to the notion that corporations should give any cognizance to social responsibility as a tenable corporate goal because it detracts from what is said to be their obligation to their shareholders. 54 Scholars have struggled over the decades to come up with an Ur-theory, with a way of viewing the business corporation that captures its essence and explains its behavior but, to a large extent, their efforts have been

constrained by competing ideologies. 52 See, e.g, Dodge v Ford Motor Co, 204 Mich 459, 170 NW 668 (Mich 1919) (holding that reducing the selling price of Fords in lieu of declaring special dividends was an inappropriate use of surplus assets); see, generally, William Allen, “Our Schizophrenic Conception of the Business Corporation,”’ 14 Cardozo L. Rev. 261 (1992) 53 See, Anderson, supra., note 5, at 471: “Generally, corporations are bound only to their corporate charters, their Shareholders, and existing statutes. The American Law Institute’s Principles of Corporate Governance state that a corporation: ‘1. Is obliged, to the same extent as a natural person, to act within the boundaries set by law; 2. May take into account ethical considerations that are reasonably regarded as appropriate to the responsible conduct of business; and 3. May devote a reasonable amount of resources to public welfare, humanitarian, educational and philanthropic purposes.’” Quoting,

Principles of Corporate Governance: Analysis and Recommendations § 201(b) (Tentative Draft No. 11, 1991) For a recent example of corporate secrecy proclivities, see Alex Berenson, “Despite Vow, Drug Makers Still Withhold Data, The New York Times, A-1 (May 31, 2004). 54 Milton Friedman has long been the leading spokesman for that position. See eg, Cassel, supra note 10, at 1977 (quoting Friedman to the effect that corporate social responsibilityis a “’fundamentally subversive doctrine,’” in Milton Friedman, The Social Responsibility of Business is to Increase Profits, N.Y Times, Sept. 13, 1970 (Magazine) at 32, 125) See also, Amir. N Licht, “The Maximands of Corporate Governance: A Theory of Values and Cognitive Style,” 29 Del. J Corp L 649 (2004) For a more complete discussion of theories about the nature of the corporation, see, Wood and Scharffs, supra., note 18 at 541-545 19 Source: http://www.doksinet Ideology has not only driven the debate about corporations,

it has also posited a false dichotomy between corporations and government. 55 This taint of ideology appears to be a critical impediment to maximizing the efficacy of human rights initiatives in the private sector . . and in the public sector As an empirical matter, we need to ascertain the extent to which privatization, as it is currently structured, rests on ideology. Ideology, of whatever political stripe always asks us to subscribe to a theory on the basis of faith buttressed by cherry-picked evidence that may only partially describe (and partially distort) the realities that drive outcomes. To make a leap of faith that may leap over important information is certainly folly if we are to take the project of human rights enforcement seriously. 56 There may, however, be a way around this ideological impasse. The approach I have in mind is, in a word, pragmatism: that timehonored workhorse of American problem-solving By supplanting ideology with pragmatism we free-up conceptual space

for fresh insights about human rights implementation. There can be no doubt that our conceptual analysis has been shackled by viewing the public sector as somehow “bad” and the private sector as invariably “superior”: by demonizing government and reifying the market. Pragmatism frees us from this moralistic burden by viewing each of the three sectors in society (the government; the business sector and the not-for-profit sector) as, simply, tools for achieving an array of societal goals. A pragmatic view begins with an analysis of the strengths and weaknesses of each sector and then assesses the most effective contribution each can make in achieving a particular societal goal: like implementing human rights norms, for example. These characteristics have been well described in the extant scholarship. That scholarship tells us that not only does government have the power to make and enforce its rules, in a constitutional democracy its transparency and accountability lend those

rules (and their enforcement) legitimacy. The gravitas of that legitimacy can never be replicated by associations in the private sector because they are so clearly not representative of, nor accountable to, the larger society of which they are a part. But private associations, have the advantages of flexibility, quick responsiveness and the ability to address special problems without the encumbrances of the democratic processes, bureaucracies and majority support which are prerequisites to government action. And as between the two categories of private associations (businesses and NGOs) business is constrained by those projects it deems profitable while NGOs are famously free to respond to societal problems which the democratic majority ignores (an 55 For a monumental study of the folly of ideology and its deleterious effects on public values, see, Laura A. Dickinson, “Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law, Wm.

& Mary L Rev (2005) 56 For example, much of the anti-government/pro-businesses justification for privatization of government services rests on ideological assumptions that business projects are more efficiently operated than government services. But empirical studies reveal that the ideological model is flawed See, Janna J Hansen, “Limits of Competition: Accountability in Government Contracting,” 112 Yale L.J 2456 (2003). 20 Source: http://www.doksinet inherent limitation of government or “government failure”) and which the business sector shuns as unprofitable (an inherent limitation of the business sector or “market failure”). And, to come full circle, both kinds of private sector associations fail the legitimacy test (they can not act or speak for the society as whole) because private organizations are neither transparent nor accountable to the public and, as a consequence, do not have the authority or power to bind society to any particular rule regimes. 57

Taken as a whole, pragmatism would view the three sectors as mechanisms which should work individually and cooperatively to benefit society. As a foundational premise, pragmatism would serve as a valuable corrective for misconceived expectations driven by ideology. It would bring to the table an empirically-driven logic without an a priori affinity for one sector as against another. Not only would a pragmatic “take” on the problem of enforcing human rights relieve us of ideological constraints in understanding how the three sectors work together, it could also be used to great advantage in developing fresh insights about the inherent dynamics of each sector. Take, for example, the business sector. Much is made in the literature about the profit motive of the corporation. But what the literature has failed to uncover and what is evident to a close observer of corporate operations is that not all profit motives are created equal. There are shortterm profit motives and there are

long-term profit motives and, often, they are dichotomous: working at cross purposes. Furthermore, among the principal stakeholders of the corporation: the shareholders, the directors, top management and the rank and file employees, some in each group will have long-term interests in the corporation, others will have short-term interests in the corporation. 58 In fact, in the domestic corporate scandals of Enron et al and in the transnational scandals of Unocal et. al, a principal driver of both kinds of scandals was that short-term profit motives so clearly prevailed over, and at the expense of, long-term profit motives within the governance mechanism of those corporations. This dominance of short-term interests in today’s corporate culture is attributable in large measure to the privileged position given to the professional C.EO (the so-called “portable CEO”), his or her hand-picked Board of Directors and the “executive gypsies” 59 that comprise the management team in the

C.EO’s entourage 57 For a more complete discussion of the roles of the three sectors and their strengths and weaknesses, see, Lester M. Salamon, America’s Nonprofit Sector: A Primer (2 ed 1999), quoted in, James J Fishman and Stephen Schwarz, Nonprofit Organizations at 37- 38 (Foundation Press 2000). 58 For an insightful exploration of short-term and long-term investment expectations, see, Lynn A. Stout, “Are Stock Markets Costly Casinos? Disagreement, Market Failure, and Securities Regulation,” 81 Va. L Rev 611 (1995) 59 “Executive gypsies” (like the term “portable C.EO” describes the transient nature of business executives who upgrade their resume by moving from corporation to corporation. In that professional environment, successes are largely measured by short-term gains in the stock market. For a description of this “Corporate ‘Relo’ Class”, see Peter T. Kilborn, “The Five Bedroom, Six-Figure 21 Source: http://www.doksinet Put most cryptically,

short-term interests favor quick profits (even the appearance of quick profits). The advantage of short-term interests, is that they can inspire innovation and risktaking But they can also tempt all manner of fraud, and corruption, and the most egregious forms of illegality. Long-term interests look beyond short-term quarterly returns to a trajectory of sustained profitability which requires stable infra-structures to support predictable and growing markets. Stable infra-structures and growing markets need, among other things: an enforceable rule of law; a trained workforce; adequate transportation and educational services; and expansion in the consumer base that represents a corporation’s market share. Furthermore, short term profit motives may undermine human rights initiatives while long term profits motives are usually consistent with human rights norms. 60 In short, and without undue fear of Rootless Life: For the Corporate ‘Relo’ Class, Good Jobs, Good Schools and

Goodbyes,” The New York Times, A-1 (June 1, 2005). For a discussion of how short-term interests prevail in Corporate Boardrooms, see Maureen O’Connor, “The Enron Board: The Perils of Groupthink”, 71 U. Cin L Rev 1233 (2003); William Arthur Wines and J. Brooke Hamilton III, Observations on the Need to Redesign Organizations and To Refocus Corporation Law to Promote Ethical Behavior and Discourage Illegal Conduct, 29 Del U. Corp L 43 (2004). 60 For discussions outlining the advantages that accrue to long-term corporate bottom lines in environments where human rights norms are observed, see, Louis Uchitelle, “Globalization: It’s Not Just Wages: For Whirlpool, High-Cost Germany Can Still Have Advantages,” The New York Times, C-1 (June 17, 2005) (among the infrastructure advantages in Germany Whirlpool listed a highly trained workforce, new technologies and “first-rate centers of production.”); see also, Cassel, supra, note 22 at 1978-1979 (citing, John J. Keller of

Citibank for the proposition that, “in the long run, educated and healthy workers are needed for economic development, which in turn increases business opportunities,” and quoting the Under Secretary of State for Economic Affairs, “‘a world community that respects democracy and human rights will provide a more hospitable climate for American trade and commerce . Repression fosters instability in the long run and puts investment at greater risk of expropriation or loss.’”) As Harold James puts it, It is a crude fallacy to think that the development and growth of the state necessarily brings disadvantages for enterprise or business culture. On the contrary, to the extent that the 22 Source: http://www.doksinet contradiction, one could say that the worst corporate scandals of the decade, from Enron to Unocal, were caused by a systemic flaw in corporate governance law that creates an imbalance in the two distinct kinds of interests that we commonly broad-brush as “the

profit motive.” Corrective measures in corporate governance law can redress the imbalance between these two competing profit motives. A pragmatic perspective uncovers important distinctions in corporate drivers that point the way to corporate governance correctives. And changes in corporate governance law that rebalance power within multinational corporations will inure to the financial benefit of domestic investors and the human rights interests of citizens abroad. Improvements in the success rate of human rights initiatives will require a broad multidimensional approach in which multinational corporations, acting alone, or collaboratively with and responsively to, government and NGOs can play an important role. 61 Replacing an ideological perspective with a pragmatic lens would assist the project significantly. strengthening of the state made business life much more predictable, wealthy generation became easier . [and] the constitutional ordering of the popular will made life

more certain. James, supra., note 1 at 12 61 For an excellent discussion of the interdisciplinarity required to deal adequately with the complexities of an evolving international law in our age of globalization, see, Berman, supra., note 3 I argue, here, that changes in corporate governance law can contribute to the success of human rights implementation to the extent that they rebalance profit motives to protect long-term corporate interests. Other techniques for internalizing incentives for beneficent corporate behavior are to be found in the marketplace, itself. See, e.g, Barbara K Bucholtz, Coase and the Control of Transboundary Pollution: The Sale of Hydroelectricity Under the United States-Canada Free Trade Agreement of 1988, 18 Boston College Envt’L Affairs L. Rev 279 (1991); see also, Janet Koven Levit, “The Dynamics of International Trade Finance Regulation: The Arrangement on Officially Supported Export Credits, 45 Harv. Int’l L J 65 (2005). 23 Source:

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