Human Rights and Sovereign Debts in the Context of Property ...

Munich Personal RePEc Archive

Human Rights and Sovereign Debts in the Context of Property and Creditor Rights

Porzecanski, Arturo C.

American University

1 May 2017

Online at MPRA Paper No. 79123, posted 14 May 2017 19:22 UTC

Human Rights and Sovereign Debts in the Context of Property and Creditor Rights

Arturo C. Porzecanski

4400 Massachusetts Ave. NW Washington DC 20016

aporzeca@american.edu



1 May 2017

ABSTRACT

Post-War conceptions of human rights have evolved independently of long-established theory and practice of property and creditor rights, to the detriment of the development and implementation of human rights law. This chapter attempts to build a first bridge between these two fields of law. It begins by recalling the strikingly different origin and implementation of `human' versus property and creditor rights, because the differences have significant implications. Human rights laws are more honoured in the breach than in the observance in most parts of the world, principally because states accepted international standards governing the treatment of their own nationals in their own territory while reserving to themselves the sovereign right to enforce those rights as they saw fit. In sharp contrast, when it comes to property and creditor rights, there are few gaps between principled intentions, legal mandates, and actual enforcement. Property and creditor rights are important for the attainment of other human rights, especially those of an economic nature, and many human rights are connected to, and are rather inseparable from, broadly conceived property rights. There follows a discussion of the still wide gap between aspirational human rights and economic reality. The time has come for human rights scholars to ratchet down their expectations to match the very limited capacity of low-income and formerly communist countries most prone to human rights deficiencies to import the Western European welfare state model. The final section focuses on the poorly understood interconnections between sovereign debts and human rights. Neglect of property and creditor-rights considerations has led many contemporary human rights advocates down an infertile, if not inappropriate, intellectual and policy path. Speculation that contracts governing cross-border debts and investments may not be sufficiently compelling, at least relative to human rights commitments, is unwarranted and counterproductive.

KEYWORDS: Human rights, property rights, creditor rights, sovereign debt, HIPC

JEL CODES: F3, F34, F35, H63, K11, K12, K33, K38

? Copyright 2017 Arturo C. Porzecanski

Introduction*

The ample literature on human rights, including that focusing on economic rights, makes only occasional mention of long-established property and creditor rights. The omission may be rooted in the fact that most of the declarations and conventions on human rights issued in the last five decades gave unduly short shrift to private-property and creditor rights. Here, I begin by reflecting on the strikingly different origins of `human' versus property and creditor rights, because the differences have implications. I subsequently highlight the importance of the enforcement of property and creditor rights for the attainment of other human rights, especially those of an economic nature. There follows a discussion of the wide gap between aspirational human rights and economic reality. Then, I shed light on the poorly understood interconnections between sovereign debt and human rights, because most writings on the topic fail to recognize the trade-offs and incompatibilities that arise because of existing property and creditor rights. Neglect of property and creditor-rights considerations has led many contemporary human rights advocates down an infertile intellectual and practical path.

Origins of human, property and creditor rights

The foremost human rights documents are the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in December 1948, plus two associated treaties, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both approved in December 1966 and effective as of March 1976. Combined, the three documents are commonly known as the International Bill of Human Rights.

The UDHR contains thirty articles that refer largely to civil and political human rights, with articles 17, 23, 25, and arguably 26, enumerating fundamental rights of an economic nature, though they are often referred to as social rights.1 Listed first is article 17, the right to own property, from which no one is to be arbitrarily deprived. In second place (article 23) are the

* Draft of a chapter to be published in Sovereign Debt and Human Rights, edited by Ilias Bantekas and Cephas Lumina (Oxford and New York: Oxford University Press, forthcoming in 2018). 1 See

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rights to free choice of employment; just and favourable work conditions; protection against unemployment; equal pay for equal work; just and favourable remuneration (`ensuring for himself and his family an existence worthy of human dignity'); and freedom to form and join trade unions. Then comes (article 25) the right to an adequate standard of living, which includes `food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood,' with `special care and assistance' provided for motherhood and childhood. Finally, and since a basic education is integral to an adequate standard of living, article 26 recognizes the right to education, which encompasses free and compulsory elementary education, `generally available' technical and professional education, and higher education `equally accessible to all on the basis of merit'.

With the notable exception of property rights, which disappear from view, and the lack of any mention of creditor rights, these basic economic rights are also included and expanded upon in the ICESCR, which follows the structure of the UDHR and the ICCPR and features thirty-one ambitious articles.2 Articles 6, 7 and 8 focus on specific elements of employment rights. Articles 6 and 7 detail the right to work, benefit from vocational training, and enjoyment of fair wages and equal remuneration for equal work; a decent living; safe and healthy working conditions; promotion opportunities; and vacations. Article 8 dwells on protections of trade union rights, and article 9 spells out the right to social security, including to social insurance.

Articles 10 through 14 of the ICESCR cover the rights of mothers and children, including to childbirth-related benefits; rights to an adequate standard of living, including adequate food, clothing and housing; the right `to the enjoyment of the highest attainable standard of physical and mental health'; and the right to education. These entitlements are specified in considerable detail. Governments are to improve food production, conservation and distribution methods, and to ensure an equitable distribution of food supplies relative to needs. They are to reduce infant mortality and to prevent, treat and control epidemic, endemic, occupational and other diseases. Beyond providing compulsory and free elementary education, secondary and university

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schooling is to be made `generally available and accessible to all' ? and to become progressively free of charge. These United Nations instruments spawned similar treaties at the world's regional levels: the European Convention on Human Rights (ECHR), an international treaty that entered into force in 1953; the American Convention on Human Rights (ACHR, 1978); the African Charter on Human and Peoples' Rights (ACHPR, 1981); and the Association of Southeast Asian Nations (ASEAN) Human Rights Declaration (HRD, 2012). All of these treaties feature lists of similar civil, political, social and economic rights ? and all of them recognize some rights to property, with the European and Inter-American system having developed the relatively broadest concept of property under human rights jurisprudence.3 However, as in the case with the UN treaties, these regional undertakings include neither a free-standing right to private property ? the right to acquire property is not specified ? nor do they make any mention of creditor rights. Their protections against expropriation and regulatory takings are weak.4

Property rights, to a greater or lesser extent, are also recognised in several other multilateral treaties born out of the United Nations. These are the International Convention on the Elimination of All Forms of Racial Discrimination (1969); the Convention on the Elimination of All Forms of Discrimination against Women (1981); the Convention relating to the Status of Refugees (1954); and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2003).

The origin of the human rights movement that gave rise to these treaties, and to the greater public awareness ? including within the legal profession ? of the need to expand recognition and observance of civil, political, social and economic rights, has been the subject of debate. By far the most common starting point for modern histories of human rights is the post-World War II period. This is illustrated by the recollections of the late Louis Henkin, widely considered one of the most influential scholars of international law:

International human rights law... began with the Universal Declaration of Human Rights [and ...] did not draw on old international sources, or on ancient notions of natural law, or on Roman law, or on modern sources of international politics, not

3 Chrystin Ondersma, `A Human Rights Framework for Debt Relief' (2014) 36 U Pa J Int'l L 269, 325-26. 4 Jacob Mchangama, `The Right to Property in Global Human Rights Law' (2011) 33 Cato Policy Report 1.

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