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Should Human Rights be an Issue for International Economic Institutions?

Joop de Kort*

IntroductionToC

The Universal Declaration of Human Rights (UDHR) of 1948 consists of an impressive set of rights that member states of the United Nations (UN) have pledged themselves to achieve. In itself, the UDHR does not have legal power and primarily is a political document, even if many of its provisions are now binding on states. The UN General Assembly, however, also asked the Commission on Human Rights that had prepared the UDHR to draft a covenant on human rights and draft measures of implementation. This ultimately resulted in two separate covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1966 and both entering into force in 1976. These international covenants are legally binding for those countries that signed and ratified them.

A large number of countries indeed have ratified the aforementioned two international covenants although China for the ICCPR and the United States for the ICESCR are notable exceptions. The ensuing obligations primarily fall upon the State Parties, although there are significant differences between the two covenants. The ICCPR in article 2(1) states that:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth or other status.

The comparable article regarding the State Party obligations in the ICESCR, also article 2(1) reads:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures

Sigrun Skogly (2003) points out the importance and necessity of international cooperation in the latter. Civil and political rights are territorially limited. Secondly, the ICESCR acknowledges the limitation of resources and provides for progressive realisation of the rights. In the ICCPR there is no such reservation. The Committee on Economic, Social and Cultural Rights (1990) indeed argues that article 2 of the ICCPR ‘embodies an immediate obligation to respect and ensure all of the relevant rights.’

This calls to question what type of international assistance and cooperation could best serve the realisation of the economic, social, and cultural rights in member countries. Within the legal profession there is much debate about the obligations of international organisations with regard to the realisation of human rights, both regarding civil and political rights, and economic, social and cultural rights (Bradlow, 1996, Griller, ed., 2003, Darrow, 2003, Skogly, 2003, Abbot et al., 2005, Benedek et al., 2007). Although an important part of that debate is strictly legal, there is ample reference to the conditions under which the (international) laws apply, to the interaction between individual rights and obligations, and to changing conditions as a result of globalisation. The legal discussion thus ventures into the fields of other disciplines, primarily economics. More specifically, the focus of these discussions turns towards the position of the international economic organisations, the International Monetary Fund (IMF), the World Trade Organisation (WTO), and to a lesser extent the World Bank.

This article reviews literature on the role that international economic institutions can play in the realisation of economic, social and cultural human rights. It seeks to answer the question whether or not the realisation of human rights should be (or may become) an issue for international economic institutions. Firstly it defines the two aforementioned sets of human rights more precisely. It describes the differences in character between these rights and the consequences thereof for the policies towards their realisation. It then continues to discuss the distribution of responsibilities in achieving these rights in the framework of a globalizing world. Special attention is given to the role of the UN and its specialized organisations, of which the IMF and World Bank are two. The final section discusses the dilemmas of legal approach versus an economic development approach towards the realisation of human rights.

Human RightsToC

As indicated, the UDHR does not have legal power, while the ICCPR and the ICESCR do. They are binding to the State Parties of the Covenants and States have to submit regular reports on how the rights are being implemented. For both International Covenants as well as for the other Human Rights Conventions there are Treaty Bodies to monitor, by various means, the implementation of the treaties’ provisions. Each Treaty Body also publishes its interpretation of the provisions of the human rights treaty it monitors in the form of general comments. The monitoring bodies can hear complaints from states as well as from individuals (UN-OHCHR, 2005). There are, however, no hard sanctions to force the states to adhere to the covenants. This is particularly true for the ICCPR, which imposes duties on the states to pass laws and to create background realities and institutions that will minimize the violations of the rights mentioned in the covenant. As mentioned above, the ICESCR leaves more room to manoeuvre for the state as it acknowledges the limits of resources and adds international assistance and co-operation to the duties. The full rights mentioned in the covenant have to be progressively achieved.

Without being exhaustive, these rights include:

The distinction of the civil and political rights from the economic, social and cultural rights and the subsequent separation into two International Covenants can be traced back to both philosophical and political arguments. Politically, Jon Mandle (2006: 75) argues that the UN bowed to political pressure from the United States and the Soviet Union who were using the UDHR as an instrument to score propaganda points against each other. The United States, and its western allies, criticized the Soviet Union for not protecting free expression and free elections, while reversely, the Soviet Union, and its communist allies, accused the United States of failing to honour the social and economic provisions. Differences also appeared in the interpretation on the ‘implementation’ to achieve the human rights. Matthew Craven (2001) argues that western countries stressed the importance of international supervision or enforcement and the mobilization of shame, whereas the Soviet type states emphasized the importance of active, national, realisation where international institutions would encourage the provision of assistance and foster co-operation, but would not pass judgment over states. The adoption of two separate International Covenants, therefore, made practical political sense. In an earlier work, Craven (1995) presented a more philosophic argument for the separation in the two distinct sets of rights. In this argument, civil and political rights are termed ‘first generation’ rights, relating to the eighteenth-century French Declaration on the Rights of Man, while economic, social and cultural rights are ‘second generation’ rights, that sprang from the socialist ideals in the nineteenth and twentieth century. The civil and political rights are concerned with individual autonomy and freedom, whereas economic, social and cultural rights are not derived from this ‘natural law’ pedigree. Economic, social and political rights would thus lack the characteristics of universality and absoluteness to be proper human rights. They are not ascribed to an individual by virtue of their humanity, but as a result of their position or role in society. They are embodied in moral ideals which cannot be immediately realized. The distinction is important for libertarian philosophers who advocate a minimal state which prime duty should focus on so-called negative duties of non interference (Buitenweg, 2006). Translated into legal terms, civil and political rights require non-intervention on the part of the state, whereas the implementation of economic, social and cultural rights requires active intervention by the state. Ruth Gavison (2003) argues that negative rights focus on duties on others not to act in ways to infringe upon it, while positive rights are characterized by the presence of duties upon others to act in ways that protect or promote it.

The practical and philosophical arguments to separate human rights into subcategories, however, find few followers in legal thinking (Marks, 2009). Mary Ann Glendon (2001: 185) argues that ‘separating the political/civil liberties from the social/economic rights had a heavy cost: it undercut the Declaration’s message that one set of values could not long endure without the other.’ Gavison (2003: 24) argues that ‘CP and SE concerns reinforce each other as ingredients of human rights.’ The differentiation is with duties, rather than with rights. The Maastricht guidelines state that states have obligations, to respect, to protect and to fulfil.

The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires the State to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights. Thus the failure of the State to provide essential primary health care to those in need may amount to a violation. (International Commission of Jurists, 1998: 693).

The experts that wrote the guidelines explicitly indicate that economic, social and cultural rights impose the same duties as do civil and political rights.

There is a touch of economics in the rejection of the division as well. The obligation not to interfere is used as an argument for a minimal state that concentrates on the provision of a limited number of public goods, while the obligation to provide implies an activist state, with a higher budget. Lawyers, however, point out this is more a matter of size than of principle (Gavison, 2003, Van Hoof, 1985, Marks, 2009). Gavison (2003: 24) explicitly argues that ’the protection of CP rights may require the imposition of positive duties and expenditures no less than these are required for the protection of SE rights.’ She does, however, also admit that ‘many SE concerns do require major redistributions, which may be both unfeasible and unjust.’ (Gavison 2003: 35). But from an economic point of view there is a difference in whether money is spent by the state, for instance to build and operate a legal system that is accessible for everyone and that treats everyone in the same way and money spent through the state, for instance to provide a means of existence for those without an income (De Kort, 2002). This difference matters with respect to the separation of rights into civil and political rights on the one hand and economic, social and cultural rights on the other. Civil and political rights are very much in the realm of the state and define the relationship between the state as a legal entity and its citizens. The state, by abiding by the rules, can minimize the costs of the system as citizens then have no reason to bring action against the state. Economic, social and political rights not only define the relationship between the (individual) citizen and the state, but also between individuals among another, even if these are mediated by the state, as a political entity. In economic terms, civil and political rights primarily concern the production of the state itself, which shows up as income in the national accounts, while economic, social and cultural rights to a large extent concern the redistribution of income through the state. They are not produced by the state. This line of argument is also present with Asbjorn Eide (2001), who argues that a narrow understanding of economic, social and cultural rights and of the corresponding state obligations lead to a widely spread misunderstanding that all these rights must be provided by the state, and that they are costly and lead to an overgrown state apparatus. He points out that ‘the individual is the active subject of all economic and social development and is expected whenever possible to through his or her own efforts and by use of own resources, to find ways to ensure the satisfaction of his or her own needs, individually or in association with others.’

It has to be acknowledged the lines cannot be drawn very sharply. Individual citizens may violate the civil and political rights of other citizens, requiring state intervention and reducing the control over the costs of the system by the state. But the provision of economic, social and cultural rights do, to a large extent, require income distribution; they require solidarity between the haves and the have-nots. The costs of enforcing these rights not only depend on the level of solidarity that a society is willing to provide, but also on the number of people that depend on income redistribution. The costs, therefore, are rather unpredictable. If the economy in a country turns bad, for reasons within or outside the reach of economic policy, many people may become dependent on solidarity to maintain an adequate standard of living. To finance the larger call on the system, the state has to increase taxes on an even smaller group of people who finance the solidarity.

More importantly, this solidarity can also be organized internationally, and that is where civil a political rights differ from economic, social and cultural rights. The violation of civil and political rights in China for example did delay its entry to the World Trade Organisation and induced other states to revoke the most favoured nation trade status of China. But the international community can only try to persuade the offending state to comply with the UDHR and the ICCPR. It cannot produce these rights in the violating country itself. The only thing the international community can do to relieve the problems of individuals in countries that see their rights violated is to offer these individuals asylum elsewhere. The situation is different with respect to some of the economic and social rights. If one country violates the right to an adequate standard of living, it is possible, by means of an international transfer of income that other countries provide for these rights. This opens up an entire array of difficult and politically sensitive questions that need to be dealt with. Therefore, lumping all costs for all human rights together and focusing on obligations poses problems for the realisation of economic, social and cultural rights, especially with regard to the position of international organisations.

Who Deliver Human Rights?ToC

At the time the UDHR and the international covenants on civil and political rights and on economic, social and cultural rights were written, the sovereign states indisputably were the most significant actors in the international order and as indicated above, the human rights treaties impose duties on the states. The communist states, following the Soviet Union, indeed guaranteed Soviet citizens the continuous improvement of living standards and other economic, social and cultural rights by inserting those in their constitutions. The Soviet state took full responsibility for the realisation of these rights and could be held responsible for compliance as the foundation of the economic system of the Soviet Union was socialist ownership of production in the form of state property. Western states lacked this full ownership and depended on private economic actors to provide employment and economic growth and to generate sufficient income for the state to discharge its responsibilities. Even if states are the duty bearers for these rights, they cannot directly guide the means of production in a preferred direction (De Kort, 2002: 138). They can only indirectly influence production and then take the possible responses of economic agents into account. Increasing the tax rates beyond a point that economic actors deem fair, for instance, may result in these actors engaging in illegal or semi-legal tax evasion or choosing to remain inactive, thus reducing overall income and tax revenue. The transitions in the communist states have reduced the number of instruments with which they can directly determine the use of the means of production. Furthermore, the increased mobility of the factors of production, especially capital, in the process of globalisation reduces the ability of the state to realize human rights as they have to compete with one another to attract capital and maintain a solid tax base, employment and so on. Daniel Bradlow and Claudio Grossman (1995) argue that sovereigns have lost power to the multinational corporations in terms of the ability to control the human, natural, financial and technological resources located in their territories. It is widely argued that globalisation imposes the need to involve international organisations in the discussion regarding the realisation of human rights. (Benedek, 2007, Darrow, 2003, Hunt, 2003).

The International Labour Organisation (ILO), in particular, is an international organisation that promotes and tries to realize standards and fundamental principles and rights at work through including representatives of employers and employees in the delegations of its member states. In numerous conventions the ILO has specified standards on labour related aspects, many of which have also found their way into the human rights treaties. The IMF and the WTO because of their dominant position in the globalised world and because international financial stability and world trade are defining elements of globalisation are more central actors. The IMF was established in 1944 to assist in maintaining a system of fixed exchange rates and to regulate the international monetary system. Its articles of agreement were amended in 1977 to accommodate the changes in the monetary system. Less developed countries increasingly appealed to the IMF for support and the subsequent macro-economic policy advice focused more on the long term than it had done before. The consultations also might include issues such as labour policies, health care, social security, military expenditures, environmental issues, as well as the importance of the rule of law and good governance (Bradlow and Grossman, 1995, Morais, 2000). The WTO was established in 1995 as the successor of the GATT of 1947. Its mandate is to ensure that trade flows as smoothly, predictably and freely as possible. Its agenda, however, also increasingly includes development issues, as is aptly illustrated by the name of the current Doha trade rounds, the development rounds. In the Doha Ministerial Declaration of November 14, 2001 the WTO explicitly ‘recognizes the particular vulnerability of the least-developed countries and the special difficulties they face in the global economy… and to help the least developed countries secure beneficial and meaningful integration into the multilateral trading system and the global economy’ (WTO, 2001).

The WTO does not have a mandate to intervene in the domestic, distributional questions relating to international trade, but where the interests of a particular sector of a country’s population is not taken into consideration in the trade policy, this can be interpreted as contributing to a violation of some human rights (Dommen, 2005). With respect to the IMF, the Tilburg Guiding Principles state that ‘the World Bank and the IMF have the international legal obligations to take full responsibility for human rights respects in situations where the institutions’ own projects, policies or programmes negatively impact or undermine the enjoyment of human rights’ (Van Genugten et al, 2003). Sergio Pereira Leita (2001), assistant director of the IMF Office in Europe, however, points out that human rights advocates should not expect the IMF to impose human rights conditions on its assistance to countries, as the IMF does not have the expertise required to make judgments in that area. Gianviti (2001: 5) argues that ‘the governing organs of the Fund are not free to impose conditions on the members’ access to the Funds resources if these conditions exceed the Fund’s powers.’ He continues by stating that the Fund has no mandate to ensure that members abide by their international obligations and that it must take other considerations into account. The Fund’s assistance to one country may have an effect on other countries, for instance. The situation for the WTO is different as the WTO is not a specialized agency of the UN and therefore is not bound by all the political and legal manifestations of the UN. Wolfgang Benedek (2007: 147), however, argues that there is an inherent connection between the principles of economic cooperation and human rights and that ‘the special procedures of the Committee on Human Rights (CHR) have increasingly been instrumental in clarifying the relationship between economic, social and cultural rights, and the obligations and policies under the agreements made by the WTO.’ Even if formally the WTO can take the position that it is not under any obligation regarding human rights, in practice, this position is impossible to maintain. Countries that have submitted to obligations in a treaty or agreement or in an organisation are not free to ignore those obligations in other organisations, i.e. the WTO or the IMF cannot advocate policies that could possibly be detrimental to the realisation of human rights as its members are bound to respect, protect and fulfil these rights as a consequence of their ILO or UN or other memberships. Thus, all international organisations are also under obligation to respect, protect and fulfil human rights, even if their mandate does not mention them.

Globalisation, Economic Development and the International Economic OrganisationsToC

The mandates of the international economic organisations focus on economic development. In article 1 (ii) of its article of agreement the IMF (1990) states as one of its purposes ‘to facilitate the expansion and balanced growth of international trade, and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy.’ Similarly, in the introduction Agreement to establish the World Trade Organisation, the parties recognize ‘that their relations in the field of trade and economic endeavour 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, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development’ (WTO, 1994).

It is clear that development is closely related to the realisation of human rights, most notably the economic, social and cultural rights. The question, however, is whether the realisation of human rights should take precedent over development, or probably more correct, that the realisation of human rights should be independent of the level of economic development. In economic terms, human rights can be defined as a normal economic good, which will be in higher demand once incomes become higher. Alan Sykes (2005: 71), for example, argues that human rights cost money, and therefore, ‘an increase in “expenditures” on human rights must be accompanied by a decrease in expenditures on other things that people desire. The expenditure necessary to create and enforce human rights will tend to be less burdensome, other things being equal, in wealthier societies’. Indeed, wealthier countries generally have better human rights conditions. Even if human rights are inalienable and cannot be ranked, poorer countries may find themselves confronted with a choice about which right to honour first and which one to leave for later. The right to adequate housing for example, can be realized easier if the prevailing housing conditions are of a low standard and are thus less expensive. The prevailing standards are also an issue in trade negotiations. Developed countries argue that the prevailing conditions in developing countries give them an unfair trade advantage in many products. Developing countries argue that the demand to comply with human rights, given the prevailing conditions, is in fact is an act of protectionism by the developed countries. This turns the focus on the question of how countries can support development and what role the international economic institutions can play in the development of less developed countries.

Jagdish Bhagwati (2004) and Martin Wolf (2004) strongly argue in favour of globalisation as the best way to development. Bhagwati (2004: 245) also argues against including non-trade issues in the trade agreements. For example, imposing labour standards on poor countries would harm their exports, which are usually labour intensive products, and thus hurt development (while protecting jobs in rich countries). He further notes that if there was a Social Clause on labour rights, it would permit other countries to exclude products from the United States on the grounds that it is not honouring the right to unionize and subsequently lays down the question whether the United States would accept that the definition of their labour laws would be subject to the interpretation of the broad concepts of the Social Clause by members of the WTO Appellate Body. The argument can be summarized as giving development (through globalisation) priority over other issues and once development starts, there will be demand for non economic issues, including human rights. Others have taken a less optimistic view with regard to globalisation. Dani Rodrik (2007), for example, emphasizes the importance of institutions in realizing the benefits of globalisation and mitigating the costs. Other economic texts that are less appreciative of globalisation include, among others, Stiglitz (2002) which points to the importance of capital market volatility and Reinert (2007) that takes an historical perspective to show that current economic powers rose to that position through protective strategies. To be fair to Bhagwati, he does not deny the importance of policies and institutions to realize the benefits of globalisation, but he emphasized how wrong headed policies can prevent poor countries from benefitting from globalisation.

Development has also become an important subject in the UN, which, in 2000, formulated eight millennium development goals (MDG) to be achieved by 2015 (UN, 2000). They are to:

To a large extent the MDGs reiterate the economic, social and cultural rights as they are laid down in the ICESCR, but they are broken down into quantifiable targets and measured by indicators. For instance, the UN resolves ‘to halve, by the year 2015, the proportion of the world’s people whose income is less than one dollar a day and the proportion of people who suffer from hunger and, by the same date, to halve the proportion of people who are unable to reach or to afford safe drinking water’ (UN, 2000: art. 19). According to Thomas Pogge (2008: 11) this particular goal is a diluted version of the pledge at the 1996 World Food Summit to reduce the number of undernourished people to half their present level no later than 2015. In the MDG the goal is to halve the proportion of those living in extreme poverty, thus taking advantage of the population growth. The Millennium Development Goals Report of 2008 claims that some key successes have been achieved, but that greater effort is required in other areas. Additional resources have to be mobilized by both the developing and the developed countries to address longstanding and long term challenges (UN, 2008: 5). Development aid, however, has fallen which jeopardized the commitments for 2010. Even if developed countries have committed themselves to provide 0.7 per cent of their GNP as official development assistance (ODA), very few countries actually reach this level. International income redistribution, therefore, falls short of providing the solidarity that is needed to provide an adequate standard of living for all individuals.

International solidarity then may rely on the policies of the international economic organisations. Globalisation has increased the interdependencies of countries and virtually made it impossible for countries to address economic and social issues independently. Globalisation thus has weakened the sovereignty of states, and made it more important to create some international order in which human rights occupy a central place (Brus, 2006). The international economic organisations already play an important role in global economic policy. Their policies are determined by developed and less developed countries alike and reflecting the increased importance of developing countries in the global economy and arena they increasingly take the interests of developing countries on board (De Kort, 2006). Whereas most international organisation have to rely on naming and shaming of violators of human rights on the one hand and on offering assistance in creating the legal framework and the enforcement mechanisms for human rights on the other hand, the IMF and the WTO in particular are in a good position to ‘organise’ solidarity between the developed and the developing world. Both organisations are among the few international organisations that actually have some clout over their member states. This sets them apart from other specialised organisations under the UN umbrella, such as the ILO.

Under Article IV of the IMF articles of agreement the IMF also engages in bilateral discussions and consultations on the countries economic developments and a wide range of policies, but it can also exercise considerable direct influence over the policies of the countries that are reliant on its funding for assistance. For example, through its so called Heavily Indebted Poor Countries Initiative (HIPC), the IMF can make demands on its debtors in return for debt relief (IMF, 2008). With its dispute settlement mechanism, the WTO also has an instrument to bind members to agreements. Even if the agenda contains predominantly economic (and technical) issues, the interdependency of these issues with human rights related topics bring these topics into the realm of the international community. However, there is a risk involved. The effectiveness of the IMF and the WTO arises from their specialisation and in part from the technical nature of their mandates. It is, for example, easier for rich countries to support countries in financial crisis through the IMF, as it eliminates the need to go through a potentially sensitive and likely slow political process at home to free the means. Including a wider range of topics in the discussions of the international economic organisations would also require them to solicit expertise from other organisations thus slowing down and complicating their policies. It might very well have counterproductive effects in both the policies currently within their specific mandates and for the wider range of issues.

This does not imply that the international economic institutions can ignore the demands that arise from human rights covenants and other treaties. The IMF established an independent evaluation office to evaluate IMF general policies and completed country operations (Boisson de Chazournes, 2007: 235). This office is free to consult with other parties. An important issue, of course, is that international organisations primarily acknowledge sovereign states as the actors and neither individuals nor interest groups have access to the deliberations at these levels. The ILO is an exception to that rule with its representation from trade unions and employers. Given the reduced discretion by national governments in a global economy, interest groups increasingly address the international organisations with their demands (Rodrik, 2000, Carrasco, 1996, Tuerk, 2003).

Where does this leave Human RightsToC

The interaction of economic development with human rights is an important topic in the global institutional setting. The UN and some of its specialized institutions work hard to ensure that human rights are respected, protected and fulfilled. There are many declarations, covenants, and other legal documents establishing an international order to discharge these functions. The international community, however, does not have many instruments for the realisation of rights as the international order is primarily built on the cooperation of sovereign states. States are responsible for the realisation of human rights, but many do not have the means to do so, especially in the domain of economic, social and cultural rights. The issue of human rights thus becomes closely linked to economic development and (international) solidarity. The international economic organisations do not have formal mandates specifically addressing human rights, but they do have mandates regarding economic development. Furthermore, they have real powers to enforce agreements under their auspices. That puts them in a favourable position compared to other specialized UN organisations.

The function of the international economic organisations exceed the direct transfer of income (although a debt relief program does exactly that), but offers the developing countries the benefits of a global economy. The legal framework regarding human rights and preferential treatments should ensure that developing countries actually reap a large share of the benefits. The legalities of human rights should not, however, work as a straitjacket for the international institutions. It is important to study the effects of rules and regulations on the behaviour of states and other economic actors and to tailor the system to best respect, protect and fulfil human rights.

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The author thanks Rory Little and the anonymous referees for the suggestions for improvement.