Some initial Fair Finance Watch brain-storming
Human Rights and Finance?
While we will be endeavoring to analyze, and provide links to, consumer- and environmentally-relevant laws of various nations, we begin with a consideration of the applicability of international law to the issues of economic exclusion, environmental destruction, and the lack of social and environmental standards of today's growing multinational financial conglomerates.
The Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, states, in Article 1, that "[a]ll human beings are born free and equal in dignity in rights." Article 2 prohibits discrimination (or "distinction") by race, color, sex, language, political or other opinion, national or social origin, property, birth or other status. Article 7 requires "equal protection of the law;" Article 8 requires that there be "effective remed[ies] by the competent national tribunals for acts violating the fundamental rights granted... by the constitution or by law." Article 22 states that "[e]veryone, as a member of society... is entitled to realization... of the economic, social and cultural rights indispensable for his [/ her] dignity and the free development of his [/ her] personality."
While generally enforced against governments (as opposed to corporations, many of which have now grown more powerful than most governments), the Universal Declaration of Human Rights' preamble states that "every organ of society... shall strive... to promote these rights and freedoms and... to secure their universal and effective recognition and observance...". Are corporations "organ[s] of society"? Clearly, yes.
The International Convention of Economic, Social and Cultural Rights, UN Doc. A / RES / 2200 A (XXI), (1966 -- since ratified by over 130 nations), recognizes, at Article 11, "the right of everyone to an adequate standard of living for him [/ her]self and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."
Notably, the United States is not a signatory to the ICESCR. The United States has, however, ratified the American Convention on Human Rights, which the Inter-American Court of Human Right has ruled is violated "when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention." Velasquez Rodriguez Case, Para. 166, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, O.A.S. Doc. OEA/Ser.L/V/III.19, doc. 13 (1988) (judgment of July 29, 1988).
This, then, is a legal theory under which governments' failure to regulate corporations, including financial services firms, may make out a violation of human rights. Also in the United States. the Alien Tort Claims Act of 1789 ("ATCA") provides that the federal "district courts shall have original jurisdiction of 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." 28 U.S.C. Section 1350; click here for a web page dedicated to all things ATCA). Virtually unused for its first 190 years, in 1980, the U.S. Court of Appeals for the Second Circuit in 1980 affirmed ATCA's use to enforce human rights, in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (finding U.S. federal court jurisdiction over a suit by an alien against a Paraguayan government official for torture committed in Paraguay).
An even more promising precedent -- allowing ATCA's use against private individuals -- was established in Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995): "We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals."
Human rights law is in evolution -- in one view, it is struggling to keep up with the consolidation of trans- (and supra-) national power in the hands of corporations. The role of private finance -- credit, stock and bond offerings, derivatives, etc. -- is central, and must be addressed, by consumers, citizens, regulators and tribunals, in the months and years ahead. A different scope of coverage, and of liability, may be found under regional human rights treaties -- including the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, 222; the American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, O.A.S. Off. Rec. OEA/Ser.K/XVI/1.1, doc. 65, rev. 1; and the American Declaration of the Rights and Duties of Man, signed May 2, 1948, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, doc. 21, rev. 6 -- and in regional human rights tribunals, including the European Commission on Human Rights; the African Commission on Human and Peoples' Rights; UNESCO; the International Labor Organization's Committee on Freedom of Association; and, as noted above, the Inter-American Commission on Human Rights.
It is at this crossroads that the Fair Finance Watch initiative begins. Click here to view examples of campaigns that have given rise to the FFW, including analyses of several multinational financial institutions' effects on consumers and the environment, worldwide. Click here for some initial brainstorming, more concrete than the above, on "lender liability." And click here to provide your feedback, your ideas and objections, and to get involved.
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