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Issues and Methods in Human Rights

Lecture 9 - Are Economic and Social Rights Human Rights?
Lecture 10 - The Right to Food
Lecture 11 - The Right to Work
Lecture 12 - Globalisation, Development and Human Rights

Lecture 9 - Are Economic and Social Rights Human Rights?

Introduction

Preamble: In 1944, President Roosevelt, in his State of the Union address stated: We have come to the clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made. Since, according to second World Conference on Human Rights in Vienna, rights are "universal, indivisible and interdependent and interrelated," we can infer that economic and social rights the right to freedom from want and so on are as much human rights as other civil and political rights. This proposition is not unquestioned. This will lead to a clearer understanding of the benefits and the limitations of thinking about issues of poverty and welfare, of economic and social organisation, in a rights-based framework.

Socio-Economic Context and Historical Background

The Universal Declaration on Human Rights was adopted by the United Nations in 1948. It was decided to draft two conventions (on Civil and Political and Economic, Social and Cultural Rights) in 1951. Thus the formulation of the basic texts on human rights coincided with the period of idealism that followed the Second World War and its collapse under pressure from the emerging cold war. At this time a majority of statesmen still believed that conscious and purposive intervention could bring about significant improvements in economic conditions/performance. Governments in most developed countries were still assimilating the lessons of the so-called Keynesian revolution. Economists, and economic policy-makers, believed that the problems of under-development could be solved by the simple accumulation of capital. See, for example, the discussion in H. W. Arndt Economic Development: the history of an idea. Chicago University Press, 1989 especially ch.1-2.). This helps to explain the prescriptive tone and the interventionist implications of the CESCR.

The origins of a human-rights based approach to the analysis of social and political organisation of course much ante-date the drafting of UDHR in 1948. They can be traced back to the writings of John Locke in the late seventeenth and early eighteenth centuries, the ideas of the so-called founding fathers and the US Constitution and the ideas of the French revolution as expressed in the Universal Declaration of the Rights of Man and the Citizen.

In the twentieth century, many of the ideas contained in Articles 6-8 (on the right to work and on rights of workers in work) were first developed in the inter-war period under the auspices of the International Labour Organisation. Although it can trace its antecedents back to the beginning of the twentieth century, the ILO was only established by the League of Nations in 1919. In part it embodied hopes for the creation of a better world that were widespread in the aftermath of the 1914-1918 war. It was also conceived of as a bulwark against the spread of communism (from Bolshevik Russia and the turmoil of Central Europe) by the capitalist governments of western Europe.

The progressive social and political views implicit in Roosevelt’s New Deal and articulated in his so-called "four freedoms" speech. This had an almost direct influence on both the ideas and the language of the CESCR.

The flavour of the thinking which was prevalent in the early post-war period and which was reflected in the CESCR is captured in T.H. Marshall’s Citizenship and Social Class. In this essay, Marshall traces the evolution of those social/political features that guarantee meaningful citizenship. Based on British history, he identifies three, which he associates with different centuries:

  1. Civil rights, guaranteeing equality before the law, were the achievement of the eighteenth century;
  2. Political rights, allowing for the broader and broader participation in the exercise of sovereign power through extensions of the franchise, were the achievement of the nineteenth century;
  3. Social rights, ensuring that all members of society should enjoy satisfactory conditions of life (as provided for by the Beveridge Report and the legislation it gave rise to), were the achievement of the first half of the twentieth century.

This analysis oversimplifies and embellishes British history since women are not fully enfranchised until well into the twentieth century. The sequence of achievements differed in different European countries: in Germany, for example, the benefits of the Bismarkian welfare state preceded the achievement of political rights, even for men.

The Convention on Economic, Social and Cultural Rights

After the text of the Universal Declaration of Human Rights was agreed in 1948, it was decided to translate the rights it recognised into binding treaty obligations, through the drafting of one (or two) Conventions. This took until 1966!
The delay was due in part to the Cold War and disagreements between Communist and Capitalist governments; to the developing US opposition to the principle of international human rights treaties and to the scope and complexity of proposed obligations.

The decision to draft two conventions was taken in 1951 on the basis of assumed differences between civil and political and economic, social and cultural rights. The difference between these two categories of rights was thought to involve differences in approaches to implementation. It was argued that civil and political rights were legal and could best be implemented through the creation of a "good offices committee". Economic and social rights, on the other hand, were programme rights and could best be implemented by the establishment of a system of periodic reports.

Both conventions are divided into five parts. The specific substantive rights are contained in Part III (Articles 6-15.)
The social rights are set out in Articles 10-14

The economic rights are set out in Articles 6-9

The cultural rights are set out in Article 15, or, according to some interpretations, in Articles 13-15. The structure of these substantive rights are:

The language in which these rights are expressed do not make it clear that the governments of states that have ratified the convention have a legal obligation to ensure that citizens enjoy the rights that it contains.

Are Economic Rights Human Rights?

David Beetham (Political Studies, vol. 43, 1995) argues that most of the so-called rights listed in the CESCR can, at most be statements of aspirations or goals rather than of properly constituted rights. He argues that, for an entitlement to be a human right it must satisfy the following conditions:

The economic and social rights specified in the covenant do not satisfy these conditions.

Beetham suggests that it might be possible to define a minimal core of human rights. He proposes:

Beetham claims that that the entitlements in the above list meet the criteria of being both fundamental and universally applicable but can they meet the criterion of specificity?
It attempts to specify a poverty line suggest that even a minimally adequate level of nutrition is difficult to establish. Defining minimum standards for the other entitlements is even more difficult.
This still leaves the other requirements of legal obligation and capacity to act.

Others have argued, however, that justiciability (the ability of courts to provide a remedy for aggrieved individuals) is not a necessary attribute of rights. Political action provides an alternative mechanism for the satisfaction of grievances. More generally, it has been suggested that:

Conclusion

The Covenant on Economic, Social and Cultural Rights should be seen as part of a progressive trend in social thought. As such the aspirations it expresses for mankind are humanist and the mechanisms through which it envisages that these aspirations will be realised are interventionist.

The underlying model, in which individuals are to be enabled to achieve social entitlements through the exercise of economic rights or freedoms, is sound. Further, it is correct that both these social entitlements and the economic freedoms on which they are based contribute to the political goals of freedom and democracy. In this sense, the Vienna Conference was correct to assert that rights are interdependent and interrelated.

But many of the aspirations or entitlements set out in the CESCR are not human rights in the narrow sense defined by Beetham. Furthermore, even if the Covenant were to be rewritten so as to make these entitlements more justiciable, it is not clear that this would be desirable. The courts may not be the most appropriate institutional framework for the resolution of resource allocation problems.

Lecture 10 - The Right to Food

Introduction

Preamble: Articles 11 and 10 of the Covenant on Economic Social and Cultural Rights constitute the core of the UN’s post-war programme of social improvement, supplemented, perhaps by Articles 12-14. Articles 6, 7 and 9 constitute the organisation’s vision of the economic organisation needed to realise this programme. Finally, Article 8 embodies the organisation’s aspirations for a humane and democratic framework of workplace organisation.

Article 11 says:

Article 11(1) of the Covenant on Economic Social and Cultural Rights states: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation.

Article 11(2) of the CESCR further states The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed [to improve methods of production and distribution of food…so as to] ensure an equitable distribution of world food supplies in relation to need.

The Historical and Intellectual Context

The content of both the UDHR and, to a lesser extent, the CESCR were influence by the political spirit of the period in which they were drafted, the late 1930s and 1940s. This included the progressivism of the New Deal and, in particular, the ideas contained in President Roosevelt’s speech on "the Four Freedoms"
The third of these was freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants.
Earlier in his speech he had indicated the policy objectives which would secure this freedom from want:

This implies that, at the time, the economic and social rights agenda was conceived of as setting minimum standards.

In this context, as Art. 11(2) indicates, the emphasis was on providing the poor with access to sufficient food to avoid malnutrition or even starvation.
In conformity with administrative and economic thinking of the time, this was conceived of as essentially a question of aggregate food availability and its equitable distribution. We will see later that such an approach is inadequate, if not mistaken: it is essential also to consider what Amartya Sen calls entitlementsas well.
Again, in the immediate post-war period and in the 1960s, international policy-makers were obsessed by neo-Malthusian fears that the world would not (or could not) produce enough food to ensure that all and particularly the populations of China and India could be adequately fed. Such fears now no longer dominate policy-making. Again, when considering how to ensure food security, the emphasis is more self-reliance than on self-sufficiency.

The Right to an Adequate Standard of Living, or the Right to Food

Asbjorn Eide points out that Article 11(1) recognises that human beings require more than the basic necessities of food, clothing and housing to participate in everyday life of society.
The implicit meaning of the word "adequate" is that everyone should have access to sufficient resources to enable them "without shame and without unreasonable obstacles to be a full participant in ordinary, everyday interaction with other people." This suggests that adequacy implies a standard of living above the poverty line of the society concerned. This interpretation goes beyond a concern with the obligation of states to protect their citizens from starvation in times of famine.
If we accept that Art. 11(1) is not as ambitious as Eide claims but only implies that states should attempt to ensure that their citizens can avoid poverty, this implies the establishment of a poverty line and the provision of a social safety net. This is contentious, because there are intellectual disagreements about the content of poverty and hence the specification of a poverty threshold and there are disagreements about the acceptability of an absolute budgetary commitment to provide the resources necessary for the alleviation of poverty.
Most conceptions of a poverty line contain an allowance sufficient to purchase the food required to attain the necessary standard of nutrition in a way that is culturally acceptable. It is sometimes argued that this can be established scientifically. A further amount to cover the cost of other basic necessities. The value of this is usually considered to be arbitrary.
These two components are reflected in the terminology used in Art. 11(1). Even this interpretation goes beyond a concern with the obligation of states to protect their citizens from starvation in times of famine.

Alston and Tomasevski focus upon the right to food, or, implicitly, on the right to be free from hunger, as stated in Art 11.(2). They recognise that hunger or malnutrition is largely a reflection of poverty. Freedom from hunger is more about the adequacy of entitlements among the poor than about absolute levels of availability of food stocks. They also suggest that the current situation, in which there is extensive poverty, and hence hunger in the world is a consequence of the failure of international law. Alston and Tomasevski suggest that human rights law is on the whole satisfactory but there are serious shortcomings with what they call international economic law, which tends to emphasis property rights and security of contract over the equitable demands of the poor (as reflected in human rights law like the CESCR for instance.) As they argue (on p. 15) As long as international law sustains and fortifies a system which tolerates current levels of hunger and malnutrition in the world, its legitimacy must be open to question. Alston and Tomasevski appear to be arguing for a more explicitly redistributive framework for the management of world food stocks. But this ignores the problem of incentives to produce.

The Problem of Entitlements

As Sen (and others have argued) it is not sufficient to look at aggregate availability of food stocks to determine whether hunger can be avoided. Sen has produced figures to suggest that, in a number of famous instances, famine has coincided with an increase in aggregate availability. Within any functioning legal and economic system, access to food (and, hence avoidance of hunger) is determined by entitlement and endowment. There are five forms of entitlement that one should consider:

  1. trade-based entitlement: a person is entitled to own and use what he or she acquires by exchange with a willing party;
  2. production-based entitlement: a person is entitled to own and use what he or she obtains by arranging its production using his or her own resources;
  3. own-labour entitlement: a person is entitled to own his or her own labour power;
  4. inheritance and transfer entitlement: a person is entitled to own what he or she receives as a gift, willingly given by someone who legitimately owns it, even after the donor’s death.
  5. Social security entitlement: a person is entitled to own any social security payments which by law accrue in those states with functioning social security systems.

In functioning economic systems, hunger or famine, which can be seen as an interlude of acute hunger occur. If the endowments of some individuals are insufficient to entitle them to acquire sufficient food by one of the above mechanisms. If a change in economic conditions makes it impossible for some individuals to acquire sufficient food to avoid hunger. Such a change may be the result of an increase in the relative price of food due to an actual break-down in supply or to expectations of such a breakdown.

  1. Loss of labour power due to ill health;
  2. Loss of earnings, due to unemployment or adverse shifts in the relative price of goods that one produces;

There may be hunger also if such entitlement failures are not compensated by the existence of either a long-term social security system or the introduction of emergency relief.

Dreze and Sen also point out that aggregate availability can affect entitlements in a number of direct and indirect ways. The two approaches should be seen as complementary and not substitutes. One can ask whether the existence of CESCR, or the fact that a country has ratified it, makes it less likely that entitlement failures will occur.

  1. Sen has pointed out that both in Ukraine in 1932-34 and in China in 1958-61, there were famines induced by the industrialisation policies adopted by the governments of the day. It is true that neither state had ratified the CESCR, but it is unlikely that, even if they had, their policies would have been modified.
  2. Sen has also pointed out that while persistent malnutrition is, or was, endemic in India, the country has not experienced a famine in which significant loss of life occurred since independence. This, he attributes to the existence of a free press and the fact that members of the government have to stand for election/re-election at regular intervals.
  3. He argues that while it does not prevent extensive malnutrition (in part because vulnerable groups tend to lack political power) political action and freedom of information can galvanise governments in to taking action to alleviate or avoid acute food crises. For this, human rights law is unnecessary.
  4. Similarly, while authoritarian states may find it easier to avoid persistent malnutrition (after all, for much of the period, the Maoist government in China has been associated with the so-called iron rice bowl) in the absence of press freedom and "bourgeois" democracy they can condone or ignore famines brought about by the rigorous pursuit of other policy objectives. They can also reject or ignore methods of increasing food production which make use of technical and scientific knowledge, as the so-called Lysenko experience in the USSR demonstrates. It is not clear that the acceptance of commitments under human rights law would prevent or inhibit the adoption of such policies.

"Right to Food" Approach

As Alston and Tomasevski conclude, the eradication of hunger and malnutrition has not been a priority concern of the vast majority of governments, whether or not their states have ratified the CESCR. The political will has clearly been absent. In what sense then, might one argue that it is useful to assert the existence of a "Right to Food"? They suggest six ways in which the international community might (or has) gained from the existence of Art 11.:

  1. It serves to underline the ethical dimension of an issue that is too often presented in purely technical terms;
  2. It may make it easier to reject the unjustified but widespread assumption that there exists no alternative to the present framework for making food policy;
  3. It may make it easier to reject the priority claimed for other (often spurious) rights. It may also make it easier to assert the spurious claim to priority for the right to food over other rights.
  4. Acceptance of the right, at least as a moral aspiration, shifts the burden of proof from those claiming assistance to those who would deny it.
  5. Ratification of the CESCR, and inter alia Art 11, lowers the barriers of state sovereignty; certain domestic issues (of inequality, redistribution and the provision of social safety nets) become legitimate issues for discussion on the international agenda;
  6. The accountability of governments (and of international organisations) in terms of the impact of their policies on the poor and their attainment of an adequate standard of living is highlighted.

These are not insignificant political benefits. But none of them lead to radically new ways of conceptualising the problems of poverty. Nor do they suggest fundamentally new policies designed to alleviate the plight of the poor.

Lecture 11 - The Right to Work

Introduction

Preamble: The Right to work, and the rights of workers in work, constitute the core not only of socio-economic rights but also of civil and political rights, as Krzysztof Drzewicki asserts in Economic, Social and Cultural Rights(p. 223.) It is appropriate, that it should form the subject of my second lecture on substantive economic and social rights.

The Right to Work and Rights in Work

Article 6 of the ICESCR asserts that States Parties to the Covenant: recognize the right to work, which means the right of everyone to gain his living by work that has been freely chosen. It shall further the realization of this right through the provision of vocational guidance and training; by ensuring steady economic, social and cultural development and by safeguarding the fundamental economic and political freedoms of the individual.

Article 7 of the ICESCR asserts that States Parties to the Covenant will ensure that all enjoy conditions of work that, as a minimum, provide:

Article 8 of the ICESCR enjoins States Parties to the Covenant to ensure the right of all to form trade unions:

  1. subject to such restrictions as are "prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others. [these qualifications impose a substantial limitation on the freedom of association underwritten by the ICESRC.]
  2. The right of trade unions to form national federations and of national federations to join international trade-union organizations.
  3. The right of trade unions to function freely;
  4. The right to strike "provided that it is exercised in conformity with the laws of the particular country." [This qualification also implies a possibly significant restriction on the right to strike.]
  5. Members of the armed services, the police and state administration may be prevented by law from exercising these rights.
  6. States Parties to the 1948 ILO Convention on Freedom of Association should not use the ICESCR to limit the guarantees provided by the earlier Agreement. [The rights detailed in Article 8 are concerned with political freedoms as much as with economic rights sensu strictu.]

The collection of "rights" contained in these three articles are heterogeneous and Drzewicki suggests the following typology, or categorisation:

The Right to Work—historical background

Work on developing a corpus of international regulation of employment and conditions of work preceded the adoption of the UDHR in 1948, let alone the drafting of the ICESCR in the 1950s and 1960s. Rather this was undertaken by the International Labour Organisation in the inter-war period. The ILO has continued to be active in this area since the Second World War. The ILO was established under the auspices of the League of Nations in 1919. It was a response to fears of bolshevism and revolutionary unrest among workers that were sweeping across much of Europe at the time. As its constitution asserts, it was based on a belief that there is an intimate connection between labour conditions, social justice and peace: "conditions of labour involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled" (Para 2)

Even before the creation of the ILO there had been some attempts at the international regulation of conditions of work:

It is not clear how effective these general acts and conventions were, particularly in countries that were not formally signatories to them. The ILO continued to develop Conventions dealing with these and other issues, throughout the inter-war period and more recently. For example, on slavery:

These instruments contain relatively weak supervisory mechanisms. Other human-rights based agreements outlawing slavery etc., however, contain much stronger monitoring measures and procedures.

The Content of Employment-related Rights

The right to work, as formulated in Article 6 of the ICESCR.
It involves the exclusion of slavery. This was recognised by the ILO convention of 1926 and reiterated by the post-war Protocol and the Supplementary Convention. It is implicit in the ICESCR itself. This involves the exclusion of forced and compulsory labour. This was recognised by an ILO Convention (No. 29) on the topic, adopted in 1930. Convention 29 was supplemented by a further Convention (No. 105) adopted in 1957. In addition to these "freedoms from…", it contains the "freedom to…" choose one’s occupation and to choose one’s place of work. (Freedom of migration for workers.). Although the ICESCR itself does not do so, some other international nstruments (for example the European Social Charter) contain restrictions of freedom of choice for certain vulnerable groups of workers. 

Article 6 of the ICESCR asserts that States Parties the Covenant "recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work"

Drzewicki points out that in certain socialist countries (like the USSR) this "right to work" acquired the status of a guaranteed human right. Even here, recourse to labour or other courts was not envisaged in cases where an individual failed to gain employment. Fully justiciable subjective rights to work were limited to particular sub-categories of workers—for example, war and military-disabled or those found unfit for a previously performed job on account of an industrial accident or an occupational disease. For other workers in these states and, more generally on an international plane, Drzewicki suggests that the formulation of the right to work/employment has remained in such general and ambiguous provisions that it is difficult to confirm its existence as an internationally recognised human right. It may satisfy the universal and fundamental criteria suggested by Beetham, but it is not justiciable. Nor should it be: if the courts had the power to impose workers on either private or public employers, it would undermine economic efficiency.

The Right to Work and the Labour Standards Debate

Drzewicki asserts that a characteristic feature of the arguments proposed by those who oppose the introduction of work-related rights involves the claim that such rights will lead to deterioration in the competitiveness of the economy, or the industries producing particular goods. He suggests, further, that the position of those advancing such arguments was strengthened by agreements made during the Uruguay Round of GATT. He claims that accepting the arguments of opponents of work-related rights will lead to so-called social dumping and a rush to the bottom! He states, finally, that the most appropriate way to avoid this outcome "is to include social clauses in trade agreements, that is provisions on the observance of minimum labour standards established by the international community."

This last claim is controversial to say the least. It has been rejected at least twice by a majority of members of the ministerial conferences of the WTO; It has been raised on a number of occasions by the US delegation and is seen by many as an attempt to introduce a measure of protectionism to limit movements towards free trade. It is discussed at some length by Arvind Panagariya, whose arguments I summarise here.

Panagariya points out that since there is no reason to believe that optimal labour standards are uniform across time and space, the observation that such standards differ between countries cannot be taken to imply that in one of them standards are sub-optimal. If, however, standards in the labour market are inappropriate, the first-best policy is to attack the distortion at source; once this is done, free trade remains the optimal policy. This is to be preferred to the introduction of a second distortion, in the form of minimum labour standards and penalties for countries which fail to observe them. Finally, if there is reason to believe that labour standards are inappropriate and one wishes to "attack the distortion at source," is the link between trade and labour sufficiently close to make "trade sanctions" the most appropriate instrument of policy? Panagariya argues that the link is too weak. Rather, he suggests that core labour standards should be pursued through the development and adoption of relevant Conventions at the ILO.

Panagaria also points out that the USA has ratified only one of the seven traditional "core" ILO conventions. Only 73 of the organisations 175 members have ratified all seven conventions. The least ratified convention is that on the minimum age of employment (and hence on the acceptability of child labour) which has been ratified by only 101 members. He suggests that this demonstrates that the claim that "there is general agreement on the so-called core labour standards among WTO members" is questionable. If this is the case, then, one might legitimately suspect the bona fides of those making this argument; rather the desire to impose so-called minimum labour standards may be a means of protecting jobs in developed economies.

Lecture 12 - Globalisation, Development and Human Rights

Introduction

Preamble:In the last thirty years or so there have been significant changes in the nature of the international economy. Economists and others often describe this process of change as globalisation.

These changes have been driven by at least three factors:

It is this third component: the contribution of international organisations to the process of globalisation and its impact on economic and social rights that forms the topic of today’s lecture.

Globalisation and Development

One can characterise attitudes (and analysis and policies) towards development before 1970 in the following terms:

In the 1970s, a number of developments (some of which were fortuitous) resulted in a radical change of analysis and policy towards the problem of development. Policy-makers in certain, East Asian, countries questioned the appropriateness of the import-substitution strategy. Instead, they adopted programmes of export-led growth: They identified relatively simple industrial products that they could produce on competitive terms. In the early 1970s, oil-producing countries managed to establish a Cartel, OPEC, which was successful in substantially raising the price they received for petroleum. As a result, they accumulated substantial sums of hard currency that their economies were unable to absorb in the short run. These sums were deposited with western banks, which were thus forced to seek borrowers.

This changed the nature of the international capital market. More countries were freed from the need to rely upon aid, or loans from international agencies like the World Bank. The emergence of this international capital market was facilitated by the collapse of the fixed exchange-rate system that had been established at Bretton Woods. In time, this led to the erosion of capital controls. The emergence of an international capital market was supplemented by the expansion of foreign direct investment, due to the liberalisation of money markets, and the willingness of governments to facilitate the repatriation of profits.

These developments had two consequences:

By 1979, further, the Chinese government had largely abandoned its doctrinaire commitment to the planned economy. Effectively, it adopted elements of a market economy and, increasingly an export-led growth strategy. Between the mid 1970s and the end of the century, the Republic of China enjoyed an average rate of growth close to 10 percent per annum. By 1990, the government of India, too, had started to abandon its policies of managed capitalism. As a result, the rate of growth in the 1990s has been much higher than it was in the 1970s or 1980s. In about 1965, the countries of the world were divided into three groups:

In the second half of the 1990s, the world is still divided into three but the characterisation and membership of the groups has changed:

In terms of global poverty or access to economic and social rights, the last thirty or forty years have witnessed some progress. But this has been largely due to the successful growth policies adopted in the NICs and particularly in India and China. The situation in the poorest countries may even have deteriorated.

Stabilisation, Adjustment and Human Rights

Under the Bretton Woods Agreement the World Bank and the International Monetary Fund had different remits. The Bank was expected to provide funds for the reconstruction of Europe and for long-term development in the third world. The Fund was expected to manage the international monetary system and to provide short-term assistance to countries experiencing temporary balance-of-payments difficulties. (Fundamental disequilibrium was to be corrected by devaluation.) The collapse of Bretton Woods and the emergence of an international capital market in the 1970s led to a change in the remits of the two organisations in the 1980s:

Both the Bank and the Fund are financial institutions. That is, they either lend their capital or they borrow on the market and lend to those countries whose credit rating does not permit them to borrow or only permits them to borrow of less advantageous terms. This means that both organisations are, and must be, concerned with the ability of those who borrow from them to repay the loans that they receive. There is substantial evidence to suggest that character of a country’s governance and the policies adopted by its government affects its ability to repay (See, for example, Assessing Aid: what works and what doesn’t and why; World Bank, 1998; or The Economist 26.06.1999, p. 23) It is this that led the two organisations to introduce, or extend, the principle of conditionality to their assistance in the 1980s. That is, they typically offered financial assistance to countries experiencing balance of payment difficulties conditional on the government adopting a so-called stabilisation programme.

Given that an IMF program is in place, countries have found it possible to restructure their debt, deferring repayment or agreeing debt-for-equity swaps or other such arrangements. It is not clear that this has resolved the debt crisis since the loans will still have to be repaid sometime. Further, debt-for-equity swaps have placed (or run the risk of placing) much of the assets of third world countries in foreign hands, creating a hostage for future economic nationalists to hold to ransom. 

Criticism of this approach, by human rights activists, spokesmen for various NGOs and for particular political groups in LDCs, focuses on two features:

  1. The tendency for the Bank and the Fund to concentrate of reducing expenditure on social programmes to the detriment of the poor.
  2. The fact that, even after "rescue" these states remain highly indebted with all that that implies for future development programmes.

It is true that early stabilisation programmes did not place sufficient emphasis on the inclusion of social safety nets. This was pointed out by Cornia, Jolly and Stewart (in Adjustment with a Human Face in the 1980s;) The organisations learned that lacking sufficient domestic support, adjustment programmes were liable to be abandoned. Bank and Fund practice, in the 1990s in transition economies was more sensitive and sympathetic to the plight of the poor.

It is also true that many states remained highly indebted, even after "rescue" by international agencies. In the 1990s, the Bank and the Fund have designed the HIPCI (highly indebted poor countries nitiative.) Under which they will forgive some or all of a country’s debt provided that the resources are devoted to improving the lot of the poor or the poorest. This has been criticised by some spokespersons for NGOs as too little and much too bureaucratic. There are two problems with a more informal and more generous approach to debt forgiveness:

But, it can certainly be argued that the world needs a procedure for countries similar to that of bankruptcy for companies, which would allow them to put disastrous mistakes behind them.

On the whole, the so-called Bretton Woods institutions can be held exclusively responsible for the failure to ensure the economic and social rights of so many of the world’s poor: The governments of many LDCs must bear a major share of the responsibility. Also, as we shall see shortly, the commercial policies of countries like the USA, or the European Union, have also had an impact.

International Agencies and Human Rights Treaties

The argument of the last section, simply put, was that while the activities of the Bank and the Fund may have had a deleterious impact on the position of the poor in certain countries of the third world, particularly in the 1980s. They have modified their actions over the last decade or so and now show more concern for their impact on the position of both the poor in particular countries and poor countries as well. These organisations are not the only "actors in this particular play" and the governments of both the LDCs and countries of the foist world must bear a part of the blame for the plight of the poor. There is a further issue, to be discussed: how far, if at all should these (and other) international institutions by bound by human rights treaties in the design and implementation of their policies?

The first point to make on this question is that the signatories of both the ICCPR and the ICESCR are states. Nether the Bank nor the Fund are signatories and thus should not be obliges to implement these covenants. Further, Art 24 of the ICESCR states: "Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant." The Bank and the Fund are specialized agencies referred to in this article. The Bank’s Charter explicitly prohibits it from taking political factors into consideration in deciding whether or not to make loans. Implicitly, the Fund’s articles of association do the same. This, together with Art 24 would seem to prevent either agency from applying human rights conditionality in implementing their policies.

The situation facing other agencies/institutions (and notably the ILO and the WTO) is less clear. As we have seen in a previous lecture, the ILO has explicitly embraced the economic, social (or civil and political) rights contained in Arts. 7 and 8 of the ICESCR. Indeed, it formulated them earlier than the UN itself. Presumably, it is happy to be constrained by other provisions of these (and other) covenants. But, it, too, is covered by the exemptions contained in Art 24 of the ICESCR. Insofar as the provisions of the ICESCR and the ICCPR can be said to constitute "mandatory provisions of general international public law" they will be binding on all subjects of international law and, in particular, on the WTO.

Much of the agenda of both human-rights activists and so-called anti-globalisers who work for NGOs like Oxfam is misdirected. The policies of the Bank, the Fund and the WTO have not inhibited but rather facilitated significant progress in development. This has resulted in reductions in world poverty. Much of the improvement has been in china and, to a lesser extent in India and in other NICs. Achievements in Africa have been modest if positive at all. For this, however, governments must bear much of the blame. The suggestion that these agencies should apply conditionality deriving from Human Rights Instruments in certain respects conflicts with the charters of the relevant agencies and with the provisions of the Covenants themselves. It would also undermine the present division of responsibilities and specialisation of function that this facilitates.


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