| Making a case for human rights in the context of globalization or vice versa? |
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| Written by Glenda T. Litong |
| Friday, 04 June 2004 11:52 |
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I. Introduction This paper shall briefly look into the facts relating to the values and institutional, particularly the legal framework, structures of two tides of international movements that the international community is faced with at the moment: the economic kind on one hand, referred to as globalization, and the human rights aspect on the other; and how each tide impact on the other. After which, recommendations in the form of responses to the tide of globalization, which takes into account human rights shall be propounded consonant with the goals of the conference. Offhand, given the experiences so far documented, one would readily conclude that there is a clash of ideologies between the two as translated in their respective institutional and normative systems. This paper will neither attempt to validate nor refute the said observation; at the very least, this paper will attempt to contribute to the ongoing and much debated discourse by making a business case for human rights or vice versa from a very pragmatic way of looking at the international and regional scenario in the context of the author's practice as an alternative lawyer in the Philippines. II. Facts About Globalization, International Trade and Investments As pronounced by its movers and advocates, globalization is meant to alleviate poverty. Its ultimate objective is development, achieved through rapid economic growth. From this perspective, defining globalization would necessarily involve international trade and investments, which are the areas most affected by globalization, and advancement in information and technology. "Globalization refers primarily to the progressive elimination of barriers to trade and investment and unprecedented international mobility of capital. It also refers to the rapidly improved communications systems, which have served to reduce distances between different countries and regions, bringing not only a greater exchange of goods and services but more exchanges between people and information from different countries." While globalization seems to be abstract, it operates through agents and conduits, which are institutional in character in the form of trade arrangements, structural adjustments in fiscal and monetary policies, and information technology, all of which are market-oriented. Globalization was brought about by major political changes whereby highly centralized economies adopted market-oriented reforms. Asia, for its part, has long entered into bilateral and multi-lateral negotiations, which included liberalization of trade by reduction of tariff and non-tariff barriers to free trade. As breaches of said agreements become common, moves towards regionalization was undertaken, which can be seen in the formation of regional trading arrangements and regional trading blocs, which is a major part of globalization. Side by side with these developments is the evolution of the so-called "global firm", a manifest product of globalization, where production and distribution is dictated by the shifts in the global market. To achieve optimum production, the global firm must have the following characteristics:
Having in mind the foregoing backdrop, what then is the concrete impact of globalization, particularly those involving policies on trade and investment, on the lives of the people, particularly the poor? The succeeding discussion pertains to the Philippine experience in trying to comply with the demands of globalization, which is pretty much reflective of other experiences in Asia. Labor Proponents of the economic growth model of development argue that the gains from an open market system shall have a ripple effect and shall trickle down to the lowest strata of society. Since globalization involved the efficient distribution and utilization of the factors of production, it necessarily impacts on labor, particularly on labor standards, and especially on the vulnerable sections of society. While labor is considered to be the most important factor of production, the ultimate power holder is the "firm", and in the case of globalization, the "global firm", which provides the other factors of production like capital and assets. In ensuring its success and well-being, the "global firm" has taken on a character, described earlier, which enables it to achieve optimum production through the employment of strategies which are centered on minimization of costs and procurement of short term gains. These strategies range from utilization of high-technology processes and computers, foreign direct investments and global competitiveness. To increase profits, the "global firm" externalizes costs in the form of foreign direct investments (FDIs), which is perceived to be the impetus of rapid development, particularly in the manufacturing sector, of most Asian countries. Global competitiveness, the sound byte of globalization, is actually the process whereby "labor is pitted against each other to push the wage down" thereby minimizing cost of production. On the other hand, the use of high technology displaces not only workers but traditional industries especially in the Third World, which produces simple goods, relies heavily on agriculture and have industries that are labor-intensive. In the Philippines, the decrease in the employment in the agricultural sector brought about by industrialization does not necessarily translate in the absorption by the industry sector of displaced workers. In fact, the employment rate in the agriculture and the industry sector has been decreasing over the years. The displaced workers from the agricultural and industry sectors go to the informal sector- a phenomenon brought about by industrialization and is known as the "invisible" sector-which is unregulated and therefore unprotected. To attain global competitiveness, casualization or contingent employment has been a major trend in hiring labor, thereby eroding labor standards, security of tenure and trade union rights, especially in export-processing zones. Not only is casualization the hiring policy in export-oriented industries, it has also been the growing practice among local employers. On the other hand, "global firms" enter into mergers and alliances to cushion themselves from the ill effects of global competitiveness. Also, the demand for cheap labor has affected the sector of labor migrants. Migrant workers are subjected to maltreatment, abuse, rape and other inhuman treatment and are not covered by labor standards law despite regulation. What more in an environment of deregulation- a mandate set by the law which subjected the plight of migrant workers to market forces. Globalization has its most insidious impact on vulnerable groups particularly women and children. Women particularly bear the brunt of industrialization since there is preference for employment of women in soft industries, whether local or foreign employment. Female participation in the informal sector and labor export has increased considerably. Given the Philippine cultural and social realities, industrialization also has its gender dimensions. The presence of children in export-oriented industries is an indication of the "global firm's" strict adherence to the value of economic efficiency. Food Security Food insecurity is brought about by massive land conversions from irrigated agricultural lands to industrial zones (which include massive tracts of land for golf courses and country clubs), land reclamation (which destroys mangroves and marine resources), and utilization of agricultural lands to crops meant for exports (which displaces traditional and staple produce), to accommodate foreign investors. These investor-oriented policies impose a heavy toll on the environment and the ecosystem itself, thereby endangering food security, not only of the nation but the family that depends on the production of agricultural products, mainly the subsistence farmers and fisherfolks. Up to now, the Philippines has no land use law that would make better use of land resources towards achieving sustainable economic development, in the light of large-scale denudation of forest land, indiscriminate and illegal land conversion, dwindling food production, soil degradation, widespread destruction of aquatic life, depletion of fresh water resources, displacement of indigenous peoples, and increasing urban migration, among others, to which industrialization has contributed significantly. Information It is in the arena of free flow of information that globalization has its positive impact, characterized by widespread use of advanced communications and information technology. The dissemination of human rights theory, principles and values ride on the wave of information and communication technology. Technology has enabled and facilitated human rights advocates to network and strategically intervene in the promotion of human rights across borders. Despite the same, access to information infrastructure and cognitive utilization of information still are major problems in the Philippines in view of the failure of industrialization to eradicate poverty and the imposition of structural adjustment policies from international financial institutions, which caused social services, particularly education, to take smaller budget allocations in favor of debt servicing. Hence, the information does not translate into political empowerment in favor of the poor and marginalized, in the absence of economic well-being. Property Massive investments by reason of industrialization have displaced communities in the form of demolitions of "squatters", uprooting indigenous peoples from their ancestral domains and depriving subsistence farmers of genuine agrarian reform in favor of industrial or development sites. At the international level, other influences of globalization that have human rights implications come in the form of new types of transboundary criminal activities like illegal drug trade, trafficking of persons and money laundering, and the proliferation of criminal syndicates that are competing with the "global firm" for economic power. The situations that engender these international criminal activities are the very same situations that enable free trade, i.e., free flow of capital and commodities and new technologies. III. The Relationship Between Globalization and Human Rights The value systems of globalization and human rights seem to be at odds. The value associated with globalization is economic efficiency. As pointed out, "international trade and finance institutions generally work on the economic model, i.e., the system is based upon enhancing the well being of the nations through trade on the theory that gains are maximized through the unrestricted flow of goods across national boundaries, where man is viewed as an economic being that seek to maximize wealth and self-interested satisfaction of personal preferences. The economic model focuses on efficiency, and values outside of efficiency are irrelevant, even pernicious as they complicate or hamper the trading system." On the other hand, the values of human rights hinge on the basic dignity of humanity, which dictates that the individual must not only be the object of development but its subject as well. Development is not only an end-goal but a right and in itself and does not refer merely to the economic well-being but to the total physical" ¦? Further, it means that the individual must not only be the beneficiary of the fruits of development but must also participate in the formulation of the development agenda and in its assessment and evaluation. The immediate manifestation of the seeming incongruence of the value of economic efficiency vis- ƒÆ’  -vis human rights is what is known as development aggression, i. e. where "economic decisions take little or no account of human and environmental costs, that are planned and implemented from the top and without participation of those concerned, and that are imposed on people either by force or by depriving them of the necessary information and means to make a real choice." According to the Oxfam Poverty Report, "trade has the power to create opportunities to create opportunities and support livelihoods; and it has the power to destroy them. Production for export can generate income, employment, and the foreign exchange which poor countries need for their development. But it can also cause environmental destruction and a loss of livelihoods, or lead to unacceptable levels of exploitation. The human impact of trade depends on how goods are produced, who controls the production and marketing, how the wealth generated is distributed and the terms upon which countries trade. The way in which the international trading system is managed bas a critical bearing on all of these cases." Impact of globalization on human rights The Philippine experience, as discussed in the preceding section, has shown to a large extent the negative impact of trade and investment policies in a globalized world on human rights of the people, where the rights to work and at work, right to adequate food, right to education in relation to the right to political participation and right to property, are, not only sacrificed, but violated. In particular, the economic, social and cultural rights are disregarded in the name of free trade. Other human rights that are affected relates to privacy, intellectual property, security, among others. If left on its own, opponents of globalization espouse that it is a threat to human rights in several ways, namely:
The problem therefore revolves primarily on the capacity states to comply with its international obligations; more importantly, state capacity to comply with human rights obligations. This is especially true in the light of transboundary criminal enterprise brought about by globalization. Further, structural adjustments shifted its role from being a mechanism of national debt management into a vehicle for deregulation, trade liberalization and privatization, which reduced the role of the state in national development to one of policing and security. b. Impact of human rights on globalization The proposition of several economic advocates in multilateral financial institutions that any factor that impedes global trade and investment is bad for development may not be gospel truth at all, if the findings of several studies are to be considered. The existence of democracy and representative government propels economic growth in view of the establishment of the rule of law insofar as protecting rights based on contracts and property rights, which is essential to maintaining favorable and secure international trade and investment environment. Trade and investment is more conducive, especially in the tourism industry, in areas where there are no images of repression, political instability, human rights violation or acts of terrorism. There is an obvious relationship between human rights and globalization. Both seek to restrain the power of the state. Both recognize the individual as an economic being, with property rights. However, the failure to respect labor standards and other human rights of the people may create the unneeded tensions politically. The stability of the world's trading system may thus depend on ensuring that an open trading system does not come at the price of human rights. IV. Why Human Rights Over Globalization? Human rights are guarantees, which must be respected and protected not only of the state party but also by the international community. The nature of human rights obligations, particularly those arising out of the Universal Declaration of Human Rights and other treaty-based obligations, shall be discussed in detail in this section. A "business" case for human rights shall also be looked into in an attempt to harmonize the merits of both globalization and human rights. International Human Rights Legal Regime In the early stages of industrialization, human rights have already been recognized, particularly those rights that eliminate the negative impact of globalization, like movement against slave trade and production of destructive weaponry, even if such acts were deemed to be private actions. Human rights theory already supports the claims of rights holders against all others, including non-state actors. In 1919, the International Labour Organization (ILO) was created to avoid competitive distortions during the early movement of international trade and technology and enhance the protection of fundamental rights of workers, which led to the enactment of international labor standards. The ILO engages a tripartite approach where all the relevant actors, i.e., business, labor and government, where involved in its operations. Non-state actors, i.e., labor and business, participate in ILO's law-making and supervisory procedures even if parties to the ILO and its conventions are limited to states. In response to the atrocities committed during the Worlds War II, the United Nations (UN) was created and its Charter entered into force in October 24, 1945. The UN Charter focuses on state responsibility in the promotion and protection of human rights, since the state is seen as the primary threat to human rights. The UN Charter establishes human rights protection as a basic principle as well as a prominent way of furthering the fundamental goals of the UN. Art. 55 (c) provides that the UN will further "universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." Art 56 provides that "all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Art. 55". Art. 103 affirms this commitment and provides that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." To specify the "pledge" indicated above, the Universal Declaration of Human Rights (UDHR) was enacted in December 10, 1948, which expressly recognizes the inherent dignity of the human being and the rights attached to such dignity. In its preamble, the UDHR serves to establish "a common standard of achievement for all peoples and nations." The International Convention on Civil and Political Rights (ICCPR) and International Convention on Economic, Social and Cultural Rights (ICESCR), which run the whole gamut of human rights, were both adopted in 1966 and entered into force in 1967. At present, 150 states have ratified the ICCPR while 142 states ratified the ICESCR out 191 member states of the UN. While the emphasis of these international human rights instruments is on state responsibility, they continue to recognize human rights that are violated by non-state actors, including "global firms", international organizations and individuals. Art. 1 and 29 of the UDHR explicitly views that individuals have duties towards each other. Further, Art. 30 provides that "Nothing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein." Individual responsibility is also existent for human rights violations, which constitute crimes under international law. State responsibility in this instance requires that the state where the offender is found should try or extradite the individual and, in few instances, may allow prosecution before an international tribunal. Aside from the foregoing instruments, studies on the aspects of globalization by the human rights organs of the UN (Sub-Commission on the Promotion and Protection of Human Rights and the Commission on Human Rights) where undertaken, and which bodies issued resolutions on trade liberalization and its impact on human rights. The resolutions enjoined all governments and fora of economic policy to take fully into consideration the obligations and principles of human rights in the formulation of international economic policy. On the other hand, human rights law also guarantees rights essential for the furtherance of globalizations, e.g., right to property, freedom of expression and communications, due process for contractual or business disputes, remedy before an independent tribunal. b. Legal Framework of Globalization The institutional structure of international trade and investment is composed mainly of the Bretton Woods multilateral lending institutions and the WTO. The Uruguay Round of the General Agreement on Tariffs and Trade (signed by 117 member countries on April 15, 1994) established the WTO and expanded the substantive reach of international trade regulation to include trade related aspect of IP, trade in services, and trade-related investment measures. In the preamble of the WTO Agreement is an explicit recognition of Art. 55 (a) of the UN Charter wherein it states that " relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand." It also refers to a concept developed in the UN, which is sustainable development. It provided that the international trade and economic relations must allow for the "optimal use of the world's resources in accordance with the objective of sustainable development." Human rights is also considered in the legal instruments and policies related to trade and investments, e.g., ban on importation of products stemming from prison labor, allows trade measures necessary to promote human morals or human, animal or plant life or health (article XX, GATT, 1994; Art. XIV of GATS). However, these expressions are qualified by the chapeau that requires the measures taken not be a means of arbitrary or unjustifiable discrimination or a disguised restriction of trade. In other words, trade is not required to conform to fundamental human rights; rather the reverse is true. ( Shelton) The role of IMF and WB in international finance is highlighted because of the impact of its debt conditions relating to structural adjustment policies on human rights. Initially, poverty alleviation is its main objective but in 1990, the General Counsel of WB determined that "violation of political rights may reach such proportions as to become a Bank concern due to significant direct economic effects or if it results in violation of international obligations." It then came out with a published a report in 1998 on development and human rights emphasizing equality and development and protection of vulnerable groups and instituted its Inspection Panel to hear a narrow spectrum of complaints about violations of Bank policy. On the other hand, IMF limited its involvement in the ensuring private sector confidence through institutional reforms like combating corruption and need to establish transparent operational systems within states, and thereby lay the basis for sustained growth. At the regional level, the ASEAN in particular, while justice and law forms part of the mandate of the organization per the Bangkok Declaration, no mention was made of human rights. It has assumed a non-political stance and limited itself to concerns relating to economic growth, social progress, cultural development and other "soft" issues. It considers human rights as added conditionalities and protectionism by other means on trade, investment and finance. In the same ministerial meeting, it was agreed upon "that while human rights is universal in character, implementation in the national context should remain within the competence and responsibility of each country, having regard for the complex variety of economic, social and cultural realities" and "emphasized that the international application of human rights be narrow and selective nor should it violate the sovereignty of nations." These sentiments were reiterated over time, further declaring that the international trading system would be undermined "if the trend of state, provincial and other local authorities in countries outside this region seek(ing) to impose trade sanctions against other States on grounds of alleged human rights violation and non-trade related issues." Essentially, ASEAN believes that issues of environmental protection and human rights must not be linked to development and economic cooperation. On the other hand, the ASEAN, on its own or jointly with the European Commission, had issued declarations and statements on human rights, e.g., agreements relating to the nature of the cooperation that the same "should serve their people by promoting greater prosperity, social justice and human rights," that "the (Foreign) Ministers were of the view that international cooperation to promote and encourage respect for human rights and for fundamental freedoms for all without distinction to race, sex and religion should be enhance," and that they "emphasized their common commitment to the promotion of and respect for human rights and fundamental freedoms on the basis of the Charter of the United Nations, the Universal Declaration of Human Rights, and the Vienna Declaration and Programme of Action." In particular, the ASEAN adopted during its 14 th General Assembly the Kuala Lumpur AIPO Declaration on Human Rights, which declares that "it is likewise the task and responsibility of member states to establish an appropriate regional mechanism on human rights." The declaration was reiterated during the 26 th ASEAN Ministerial Meeting in the same year, through a Joint Communique, which states that the Foreign Ministers "in support of the Vienna Declaration" ¦ agreed that ASEAN should also consider the establishment of an appropriate regional mechanism on human rights." The Vienna Declaration referred to the World Conference on Human Rights sponsored by the United Nations, which reiterated the "need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already exist." Practically all ASEAN states have signed the international human rights conventions. Despite the same, differences abound among the members on the meaning and nature of human rights. Legal systems of the countries vary as well, including the degree of political openness to the perceived Western concept of human rights. c. The Primacy of Human Rights One needs to differentiate between human rights instruments vis- ƒÆ’  -vis all other multilateral treaties, including trading agreements. "Human rights are not multilateral treaties of the traditional type; their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction." The UDHR has acquired the status as a principle of international customary law under international law. Constant references to it as a fundamental source in multilateral discussion within the UN and other fora, international treaties and legislative/judicial proceedings of many countries, and the signatures and ratifications of the greater majority of the international community are clear indications of this status. Under Art. 38 of the International Court of Justice, international custom as evidence of a general practice accepted as law and opinio juris is a source of international law. In the case of UDHR, state practice is shown in the signatures and ratifications. Opinio juris, the belief that such conduct represents legally permissible behavior, is shown in several UN General Assembly Resolutions indicating the stand of the international community on pressing issues, like the supremacy of human rights. Furthermore, the ratifications of the majority of states of the ICCPR and ICESCR, which gave rise to treaty-based obligations, have contributed to the transformation of the UDHR as legally binging obligations upon States. Clearly, the UDHR is legally binding on all countries and it is binding erga omnes (flowing to all), wherein all states have a vested legal interest in the protection of such rights. Lastly, the UDHR is also considered as a binding principle of jus cogens (compelling law) within the meaning of Art. 53 of the Vienna Convention on the Law of Treaties. In view of the foregoing, it cannot be doubted that the UDHR is supreme over any other international or regional trading agreements, and states have the obligations to promote, respect, protect and fulfill the human rights, fundamental freedoms and the development of the people. Human rights must be used as standards and norms even in the arena of international trade and investment. d. A "Business" Case For Human Rights International trade and investment and human rights rely on rules. Adherence to the rule of law is essential pre-requisite to the long-term conduct of trade and investment as it secures economic stability and private sector confidence. The rule of law includes human rights. Certain human rights, mentioned earlier, securing business interests are requisites to this rule of law. However, efforts to incorporate human rights principles and norms in trade law has encountered difficulties, like, states affirming the jurisdiction of the ILO or other bodies on the matter, opposing any discussion on worker rights during WTO meetings, and opposing the use of unilateral and multilateral trade sanctions for HR violations. This is a double standard on the part of business. What the private sector does not want to consider is that there is a "business" case for human rights. Benefits that could accrue to business when they promote human rights include effective risk management, avoidance of litigation, shareholder confidence, enhanced reputation, staff and public goodwill and other competitive advantages. Significant financial losses can also be incurred when unethical operations result in labor strikes, community uprisings or bad publicity. Greater awareness of human rights by the people has placed business under scrutiny. The norms of human rights relating to property, contract, fraud and competition should be considered as appropriate business norms as well. After all, business is entirely dependent on the effective functioning of society and the global environment. V. Responses to Globalization From the Human Rights Perspective The track record so far of state compliance with human rights in the context of globalization is not very heartwarming. It seems that states try to isolate its responses to globalization from their obligations under international human rights law. This is happening not only in the international level but also at the regional level, as can be gleaned from the declarations of ASEAN. It can no longer be ignored that responses to globalization is linked to human rights. In the face of obvious hesitation of states to take into consideration human rights in their development agenda in compliance with international and regional trade agreements, efforts of advocates for human rights must not wane and rather, must be pursued more vigorously. At the international level, responses to globalization within the context of human rights have achieved considerable mileage. The following initiatives, which has also been adopted at the regional level, relates to the strengthening of the international human rights regime in the context of globalization: Human rights activities and institutions have posited the primacy of human rights law. The primacy of human rights over other international legal regimes cannot be ignored by states as they have submitted themselves to this fundamental principle and as evidenced by the prevailing general principles of international law on the matter relating to state practice. Human rights advocates approach the phenomenon of globalization from a rights-based approach and has engaged, even capacitated, states to adopt said approach in their economic decision and policy making. Focus on state responsibility for the actions of non-state actors. There is growing insistence on the responsibility of states, for the behavior of non-state actors within their respective jurisdictions. The inaction or omission of states on human rights violations committed by non-state actors has been the subject, and continues to be a fertile ground for test case litigations. Test case litigations are " ¦ Even actions of states before international organizations are being looked into. Voting in favor of actions that contravenes human rights is considered a violation of its obligations under the treaties, particularly the IESCR which mandates minimum core obligations on the part of state parties irrespective of resource or other constraints. Also, state responsibility also pertains to home and host states over the actions of global firms. International law has increasingly regulating non-state behaviors directly. This finds support in the earlier discussion on human rights law governing private or non-state actions that impedes on human rights, particularly art. 29 and 30 of the UDHR. Institutionalization of private market mechanisms like corporate code of conducts and consumer purchasing schemed to influence corporate behavior. Economic activity is not the sole responsibility of states. In the realm of economic, social and cultural rights, its realization is not entirely dependent on state action; business entities, particularly the transnational and multinational companies, are actors whose decisions greatly impact on human rights. Human rights law asserts that economic, social and cultural rights set the limits of globalization. There is thus a growing clamor for the development of codes of corporate conduct, formation of venues wherein stakeholders to the issue of globalization and human rights participate and existence of grievance mechanisms for the enforcement of accountability of non-state actors. International organizations cannot escape accountability for its actions in case of violations of human rights. As mere creations of states, international organizations cannot lawfully do collectively what states cannot lawfully do individually. In order to reach corporate behavior, efforts have been directed towards the utilization of market mechanisms and other forms of private regulation like corporate social responsibilities, with emphasis on its implementation. Restructured international governance mechanisms. Efforts geared towards ensured participation of state as well as non-state actors, which includes the private sector, NGOs and civil society, in international governance have been undertaken as embodied in several UN documents like UN Millenium Declaration, UN Global Compact Initiative and reports by UN Special Rapporteurs. Based on the foregoing discussions, the issue most pertinent to pose would be: What can be done at the regional level that would advocate for human rights in the context of free trade? Strategic interventions are needed to strengthen human rights in an environment of free trade and investment, having the following in mind. First, primacy of human rights, as articulated earlier, must be brought to the attention of policy makers at the regional and state level. Human rights advocacy requires that it is articulated and human rights mainstreamed or integrated in decision and policy making in all branches and agencies as well as processes of the state. There is thus a need for a body of work that details the impact of economic decisions on economic, social and cultural rights. This can come from research or studies, test cases or consultations or other social fora that engages a wide spectrum of stakeholders on the impact of globalization and its conduits and agents. A state that is fully aware of its obligations in international law and the primacy of human rights over any other international obligations is in a better position to articulate the same at the regional as well as international trade fora. Despite the declarations of ASEAN relating to the compartmentalization of trade and investments vis- ƒÆ’  -vis human rights, there is a window of willingness on its part to talk and cooperate on the issue of human rights. Again, advocacy on the primacy of rights over trade obligations must be surfaced and brought to their level. Second, activities that aim at strengthening and capacitating the state must be undertaken. The rights-based approach must be incorporated in the strategies of state formulation and implementation of programs and policies that address the needs of the people. This could mean holistic and integrated reforms in the political as well as economic landscapes of states, including judicial reform. Reforms in the judiciary, the rule of law and the justice system are also needed in ensuring a favorable investment climate, which must not be at the expense of human rights. The state can take on an "interventionist" attitude, as differentiated from being "protectionist", the latter relating to policies on the manner by which goods flow across and within the national borders. An "interventionist" state means that the state prepares an environment where every sector of the economy can participate and no one enjoys a sizable amount of advantage over the other. Third, legal empowerment of the people is needed since this is the other side of the rights-based approach, where people can assert their entitlements against the state as the duty-holder, not only for its actions but for the actions of non-state actors as well. The people must also be the recipient of the body of work that upholds the primacy of human rights. A special concern relates to the people's access to justice in case of human rights violations, given the initiative to advocate for the primacy of human rights. VI. Conclusion The promise of a higher standard of well-being for every individual put forth by globalization has remained cast in stone and has not benefited its supposed beneficiaries, the people. Approaching development from a purely economic perspective has not worked and will continue to fail if the basic human entitlements of the people are not addressed and not taken into account in pursuing economic growth. In particular, as long as structures that impede equality, equitable distribution of wealth and human rights exist, development shall fail its subjects. On the other hand, business has a lot to gain in ensuring the well-being and dignity of human beings in terms of higher productivity by reason of secured and contented labor force and less cost in the absence of litigation, bad goodwill and industrial chaos. In this arena, only the State has the resource and the machinery to put into effect policies and programs that would cushion the negative effects of globalization and to capacitate itself to ensure that globalization realizes its promise of development to the people. It would be an irony of sorts that the same development agenda being implemented in the name of the people are the very same instrumentalities that perpetuate and continue their poverty and marginalization of the people, particularly the poor. Reference: ASEAN and Human Rights: A Compilation of ASEAN Statements on Human Rights. Working Group for an ASEAN Human Rights Mechanism, 2003. Dinah Shelton, Protecting Human Rights in a Globalized World, http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/25_2/06_FMS.htm, 3 June 2004. Habbard, Anne-Christine and Guiraud, The World Trade Organization and Human Rights,International Federation for Human Rights (FIDH) Position Paper, http://www.fidh.org/rapports/wto-fidh.htm, 3 June 2004. Kaisahan Tungo Sa Kaunlaran ng Kanayunan at Repormang Pansakahan, A Citizen's Guide to the Proposed National Land Use Act. Mining Ombudsman Annual Report 2001-2002 , Oxfam Community Aid Abroad, November 2002. Mining Ombudsman Annual Report 2003 , Oxfam Community Aid Abroad, September 2003. Raquedan, Joel, Globalization and Human Rights, 1998 Philippine Peace and Human Rights Review. Sandoval, Raymond Vincent, Human Rights Treaty and Customary International Law, Human Rights Agenda, Vol. 8, Issue 6, November-December 2003, Institute of Human Rights, University of the Philippines Law Center, Quezon City. Villaroman, Noel, An ASEAN Human Rights "Mechanism': Transforming Dream Into Reality, The Human Rights Agenda, Volume #5, Issue #6, June 2000, Institute of Human Rights, University of the Philippines Law Center, Quezon City. Raquedan, Joel, Globalization and Human Rights, 1998 Philippine Peace and Human Rights Review, Institute of Human Rights, University of the Philippines Law Center, Quezon City, p. 348. Ibid., p. 353. Kaisahan Tungo Sa Kaunlaran ng Kanayunan at Repormang Pansakahan, A Citizen's Guide to the Proposed National Land Use Act, pp. 2-5. Dinah Shelton, Protecting Human Rights in a Globalized World, (citation) Raguedan, supra, p. 380. Shelton, supra. Ibid. Mining Ombudsmand Annual Report 2003, Oxfam Community Aid Abroad, September 2003, p. 6. Par. 7, Joint Communique of the 24 th ASEAN Ministerial Meeting, Kuala Lumpur, Malaysia, 19-20 July 1991. Par. 15, supra. Par. 35, Joint Communique of the 30 th ASEAN Ministerial Meeting, Subang Jaya, Malaysia, 24-25 July 1997. Par. 11, Joint Declaration of the ASEAN-EC Ministerial Meeting, Brussels, Belgium, 21 November 1978. Par. 7, Joint Declaration of the 9 th EC-ASEAN Ministerial Meeting, Luxembourg, 30-31 May 1991. Par. 25, Joint Declaration of the 11 th ASEAN-EU Ministerial Meeting, Karlsruhe, Germany, 22-23 September 1994. Sandoval, Human Rights Treaty and Customary International Law, Human Rights Agenda, Vol. 8, Issue 6, November-December 2003, Institute of Human Rights, University of the Philippines Law Center, Quezon City, pp. 12-15. Raquedan, supra., p. 412. Like it? Share it!
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