Non-State Actors and Human Rights. Edited by Philip Alston. Oxford, UK: Oxford University Press, 2005. 350pp.
Non-State Actors and Human Rights, primarily about business corporations and human rights, is basically a legal reference source. However, it contains little information on one set of important non-state actors, namely, human rights advocacy organizations, and it is written in a relatively dense style. Both features make it unsuitable as a general work in the social sciences, especially for students. Nevertheless, it contains excellent information on legal rules and legal obligations concerning human rights standards that are increasingly discussed in relation to for-profit enterprises.
Eleven authors, most of them lawyers and/or law professors, combine to produce eight chapters. The first two chapters, by Philip Alston and August Reinish, present a general overview. They note that whereas public international law is state centric, there are in fact many different types of actors beyond the state in modern international relations. The central question is posed: what are the obligations, if any, of these many different actors in the light of internationally recognized human rights? Soon enough it becomes clear that all of the authors are sympathetic to these human rights norms and wish to see the broadest impact for them, whether in regard to intergovernmental organizations, non-governmental organizations, for-profit enterprises, non-state parties employing violence, and so on. While from time to time there is brief discussion of IGOs and NGOs, with passing mention of various armed groups, most of the book is concerned with corporate standards and behavior. This is also very clear in the sizable bibliography of 18 pages. The largest sections of this bibliography are about "Multinational Enterprises and Human Rights in International Law," and "Multinational Enterprises and International Human Rights Law in U.S. Courts."
Alston, by casting the net of the book so widely, cannot but fail to conclude that with so many disparate non-state actors, one finds a great variety in their legal status under international law.
Reinisch, who finished his chapter in 2002 (although the book was published in 2005) covers many fundamental points, such as the continuing key role of states in holding corporations indirectly accountable under the norms of internationally recognized human rights. In discussions of such concepts as extra-territoriality and jus cogens , his emphasis remains on notions of legal obligation. On the other hand, it has often enough been noted that one of the great problems on this subject has been the frequent absence of political will on the part of certain states at certain times to hold accountable corporations for the violations of human rights committed within state jurisdiction. There is legal obligation in theory; then there is practice largely driven by economic self-interest.
The one chapter to deal with NGOs in any depth is by Menno T. Kamminga. Here too, one finds a legal approach stressing definition, capacity to conclude treaties, capacity to participate in treaty making, capacity to bring international claims, and liability under international law. How human rights NGOs try to bring their influence to bear on corporations is not really broadly analyzed. Kamminga does deal with the charge that human rights NGOs are undemocratic and unrepresentative. He writes: "NGOs that are not perceived as working for the common good, that are not entirely independent of governments, or that have no mechanisms for internal accountability will attract few individual supporters and little funding and will have little impact on the international plane" (111).
Francois Gianviti provides the one chapter devoted to IGOs, or more precisely to the International Monetary Fund. He makes the well known interpretation that there is scant linkage between the IMF, being mostly a technical monetary agency, and human rights.
Celia Wells and Juanita Ellias provide an overview of the multinational or transnational corporation in relation to international law. This is followed by what is, to this reviewer, the most useful chapter in the volume, that by Ralph G. Steinhardt on corporate responsibility in relation to internationally recognized human rights. His analysis is based on a four-fold scheme: corporate self-policing; national regulation; civil liability; and international regulation. His discussion of civil liability particularly in U.S. courts, centering on alien tort claims, comprises a trenchant review of that subject. Mostly up to date (he finished it in 2004), it provides the necessary background for understanding quite recent developments involving an effort by the George W. Bush administration to shrink the domain of litigation made possible by the path breaking case of Filartiga v. Peña in 1980. His long chapter is a model of scholarship and can usefully serve as a foundational approach to the pros and cons of trying to bring corporate behavior under the big tent of internationally recognized human rights.
The follow-on chapter by Olivier de Schutter addresses the impact of European law on corporations in relation to human rights. A small book itself (the chapter covers 87 pages), it is written in obtuse legalese and will no doubt prove to be of interest only to legal specialists on that subject. It lacks a hard hitting central thesis.
Finally David Weissbrodt and Muria Kruger discuss the "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights" that the U.N. Sub-Commission on Human Rights (which is made up of independent experts) adopted in 2003. This is yet another code of conduct without enforcement or implementation measures, despite the argument of the authors that it is somehow in a different domain. Were it to be endorsed by other U.N. organs, it might achieve special and salient status. At the time of this review, the discredited U.N. Human Rights Commission, comprised of States, has not rushed to endorse it or provide strong measures for application. Whether the projected U.N. Human Rights Council, also to be made up of States, will treat it any differently remains to be seen.
In sum, this book, especially the chapter by Steinhardt, is a useful reference source on the precise subject of corporations and the international law of human rights. It is unfortunate that the title does not accurately convey this primary coverage.
David P. Forsythe, University of Nebraska-Lincoln