The past five years have shown a categorical disregard for the human rights of the people of Greece by international creditors. We have witnessed a disregard by states, including notably eurozone states, as well as by European institutions and the IMF, of their human rights obligations when crafting conditionalities. There is a long list of deplorable developments that this European catastrophe has exposed (the catastrophe is Europe’s even if the resulting harms at this point impact Greece) including coercion in the negotiation and conclusion of agreements, ongoing attempts at regime change, and the hollowing out of national democracy (among other examples, the statement of the Euro Summit of 12 July requires Greece ‘to consult and agree with the Institutions on all draft legislation in relevant areas … before submitting it … to Parliament ’). There are many other indefensible developments, including the enactment of extreme neoliberal policies relentlessly challenged by economists on their own terms, for taking the wrong approach to promoting growth and investment. Under the conditionalities set out in the Memorandum of Understanding (MoU) of 11 August 2015 for receipt of the third bailout, court rulings that may require the reversal of spending cuts – for example where social rights violations are found – are framed as ‘fiscal risks’, and the MoU requires a commitment from the Greek government ‘to take offsetting measures as needed to meet the fiscal targets’. Greece has suffered years of recession under the Troika’s austerity plans of 2010 and 2012 accompanied by widespread social malaise. In this new phase, we are also seeing all branches of government that might interfere with the creditors plans rendered ineffectual in breach of the most fundamental requirements of democracy and the rule of law.
In the past five years – the Troika years – Greece has seen budget cuts that have been followed by a 200% rise in the incidence of HIV/AIDS, the return of mother-to-child transmission of HIV (health cuts have meant routine screens are no longer conducted on pregnant women), the return of malaria, drastic labour market reforms, a rise in unemployment, especially among the young and women, and violations of the right to social security. Even an IMF Research Paper of 2013 challenged austerity in finding that ‘fiscal consolidation [austerity] typically raises income inequality, raises long-term unemployment and lowers the share of wage income’. It is thus deeply disingenuous to see in the latest MoU the statement that ‘The economic crisis has had an unprecedented impact on social welfare’. It is the response to the economic crisis that has crushed the people of Greece and brought the new government – elected on an anti-austerity platform – to its knees. What we are seeing is a total disregard for the political rights of the people of Greece not to mention their right to any reasonable form of economic self-determination.
For today I put many of these issues aside to focus on one matter in particular: the failures of the international creditors to undertake human rights impact assessments in the area of socio-economic rights.
In my own work on the subject of austerity and human rights and in the legal brief I wrote recently with Olivier De Schutter for the Special Committee of the Hellenic Parliament on the Audit of the Greek Debt from which a good amount of the summary below is drawn, I was struck by the fact that the actors involved in the negotiation and implementation of the 2010 and 2012 MoUs acted in total disregard of international human rights and that they had not even taken the elementary precaution of assessing the potential impacts on the level of enjoyment of human rights of the measures they were recommending or that they adopted. The Guiding Principles on Foreign Debt and Human Rights, endorsed by the UN Human Rights Council in 2012, require that ‘Lenders should not finance activities or projects that violate, or would foreseeably violate, human rights in the Borrower States. To avoid this eventuality, it is incumbent upon lenders intending to finance specific activities or projects in Borrower States to conduct a credible Human Rights Impact Assessment as a prerequisite to providing a new loan.’ [para. 40] The Guiding Principles on Extreme Poverty and Human Rights, which were adopted by consensus by the Human Rights Council in 2012, also require human rights impact assessment, including where conduct would create a foreseeable risk of impairing the enjoyment of human rights by persons living in poverty beyond the borders of a state. [para. 92] Human rights due diligence, so central to the Guiding Principles on Business and Human Rights adopted by consensus by the Human Rights Council in 2011, is meant precisely to identify and assess the nature of the actual and potential adverse human rights impacts in order to avoid harms (in the context of these Principles harms with which a business enterprise may be involved). In the Pulp Mills case, the ICJ concluded that there is a requirement under general international law for states to undertake environmental impact assessment where there is a risk that the activity may have a significant adverse impact in a transboundary context. It would be difficult to defend the idea that there is an obligation to prevent transnational environmental harms but not transnational human harms. The key point for current purposes is that due diligence, and the duty of vigilance and prevention of human rights harms it implies, impose an obligation on states and other actors acting internationally.
Duties to assess human rights impacts apply both to the creditors – the Euro Area Member States, the IMF and now the ESM – and to Greece itself. The European Social Rights Committee, in Pensioners’ Union of the Agricultural Bank of Greece (ATE) v Greece, (Complaint No. 80/2012 16 Jan. 2012) expressed its surprise at the fact that the (former) Greek government failed to undertake even a minimum assessment of the impact of measures on vulnerable groups for which it has been held internationally responsible. In its recent review of Greece, the UN Committee on the Elimination of Discrimination Against Women provided the following recommendation as a response to the crisis:
“Due to the seriousness of the situation and lack of any gender-sensitive approach to the current crisis policy within the State party, the Committee recommends that all important policymakers in Greece, including the European Union institutions and the IMF, cooperate in setting up an observatory to fully evaluate the impact on women of the many measures taken during the economic and financial crisis. Furthermore, a comprehensive gender equality policy should be developed in order to respond to the crisis and make sure that the obligations under the Convention and the aim and spirit of the Treaty of the functioning of the European Union, which requires that in “all its activities the Union shall aim to eliminate inequalities, and to promote equality, between men and women”, can be fully implemented by the State party.” [para. 40]
The failures by Greece and the Euro Area Member States (as well as by the European Commission, European Central Bank, and the Council of the EU when it imposed on Greece deficit reduction measures) to conduct appropriate human rights impact assessments were not compensated for by the IMF during the 2010-2015 period. Quite to the contrary, the IMF – by its own admission – does not consistently conduct prior social impact assessment, despite the potentially regressive impacts of the measures adopted in order to comply with IMF conditionalities: between 2006 and 2010, nine of the 18 countries in an IMF case study sample [see para. 26] were subject to programme conditionality affecting the prices of products consumed by the poor. It is also worth noting that the ‘specific’ terms and requirements provided for in the Memoranda with Greece of 2010 and 2012 which are categorical on the extent of Troika oversight and explicit in their substantive prescriptions come after ‘prior action’ policy, that is measures that a country agrees to take before the IMF’s Executive Board approves financing or completes a review. The approach by all creditors to the third bailout has followed this same familiar model.
As for the EU, the implication of the applicability of both the EU Charter of Fundamental Rights and international human rights law to the acts of the EU is that that the European Union and its institutions should strengthen their assessment of impacts on fundamental rights of the legislation or policies that relate to the Economic Monetary Union, in particular as regards the recommendations addressed to countries under financial assistance. Despite commitments by the European Commission to fundamental rights impact assessment and the development of methodologies to those ends over the past years, impact assessment has been absent from the crafting of the series of conditionalities imposed on Greece.
It is hardly surprising that, in the absence of such impact assessments, the human rights duties of the parties concerned tend to be disregarded in the name of macroeconomic adjustment. A study on austerity in the EU Member States prepared for the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) concluded that:
“… it rarely appeared that the spending cuts introduced during the crisis were specifically targeted at the wasteful uses of public resources. Rather, it seems that many of the imposed measures were horizontal, indiscriminate cuts across the policy areas they targeted, in order to meet financial savings that were determined in advance. [I]n Greece, in order to meet the goal of reducing the number of public employees by a certain number, the entire structure of the national broadcaster was abolished. Spending cuts should not be horizontal – they should be based on detailed evaluation of the effectiveness, efficiency, relevance and added value of public expenditure, and should include a public consultation.” [p. 165]
A 2014 enquiry by the European Parliament on the role and operations of the Troika with regard to the euro area programme countries concluded that ‘too little attention has been paid to alleviating the negative economic and social impact of adjustment strategies in the programme countries’. The Report ‘deplores the fact that too often the one-size-fits-all approach to crisis management has not fully considered the balance in the economic and social impact of the prescribed policy measures’. [para. 45] Panagiotis Roumeliotis, Greece’s former alternate Executive Director at the IMF from 2010-2011, was asked in June 2015 at a hearing of the Special Committee of the Hellenic Parliament on the Audit of the Greek Debt [notes on file with author] about the veracity of a written statement he delivered to the IMF on 9 May 2010 in which he claimed that: ‘The program [for Greece under the Standby Arrangement/MoU] includes measures to protect the most vulnerable segments of the population. My authorities are committed to an equitable and fair distribution of the adjustment burden. The tax burden for the rich will increase, while the minimum pension and family allowances will be preserved’. In his testimony he offered an altogether different account:
“I did not see measures to protect those groups, on the contrary they saw cuts. No one said the minimum wage should not be reduced, and it was. To say we will protect the most vulnerable groups is theoretical. Instead they suffered the most. The results were an increase in unemployment, an increase in poverty; we did not work on protecting the vulnerable social groups and what we saw was their further marginalization. Yes, there was a general reference in the first MoU [to protecting the most vulnerable] but [in the IMF meetings] they go measure by measure and discuss, for example, how to reach the target deficit, the primary surplus etc. There is no discussion on vulnerable social groups.”
The MoU for the third bailout offers a nod to ‘social justice and fairness’ and a reference to what may be Prime Minister Tsipras’ only win in the protracted ‘negotiations’, ‘a basic social safety net in the form of a Guaranteed Minimum Income (GMI)’ (in his commentary on the MoU, former Finance Minister Varoufakis remarks that the Troika’s GMI will merely take from one poor Greek family to give to another). But there is little in the MoU to suggest that the scheme is meant to serve the interests of humans. The Euro Area Member States, EU institutions, IMF, and IMF Member States, have all failed to meet the most basic of requirements to prevent human rights harms in the policies they pursued and the ESM (and ESM Member States i.e. eurozone states) are on the same track with this new MoU. There was, and it seems there still is, no intention to undertake the ex ante and ex post impact assessment that forms a basic expectation of international human rights law and EU law and policy, including guarantees of consultation by persons likely to be affected by the policies and access to information and transparency regarding public access to the results of assessments.
As an aside, the references in the MoU of 2015 to ‘oversight and transparency of reporting standards’ as part of the controversial €50 billion privatisation Fund, that, in line with the statement of the Euro Summit of 12 July 2015, ‘will be established and have in its possession valuable Greek Assets’ and will be supervised by the relevant European institutions [p. 25], fail as an exercise in procedural whitewashing of the main aim which is the selling off of Greece. In a recent piece, Etienne Balibar, Sandro Mezzadra and Frieder Otto Wolf drew attention to the planned alternative to Grexit – the reduction of Greece to a neoliberal protectorate (Lafazanis prefers ‘neo-colony’) and the expropriation of its national resources.
States and international organisations have willingly failed to see the eurozone crisis, and the responses to it, not only as a financial and economic issue but also as a human one. They failed effectively to acknowledge that stabilising economies through austerity measures at best secures socio-economic rights only indirectly and tenuously and, at worst, violates them egregiously. It is hard to fathom how decades of experience from elsewhere in the world on the human costs of structural adjustment failed to inform decision-making in Europe, while over half a century of standard-setting in the area of socio-economic rights regionally and internationally went virtually unnoticed. I hope, indeed predict, that the near future will see harnessed every legal and political opportunity to reclaim, reconstruct and redress this grave affront to justice and the deeply misguided view of who it is the economy is meant to serve. Europe is indebted to the people of Greece and to every European in whose name this travesty is being executed.
At the hearing in Athens in June, Panagiotis Roumeliotis, Greece’s former alternate Executive Director at the IMF, was also asked whether during the exchanges on the MoU he or the Executive Director raised at any point in time the fact that Greece had human rights obligations that had to be taken into account in the negotiation of the conditionality, including regarding the right to social security, labour rights and the rights of women. Mr Roumeliotis looked into the TV camera, to the besieged people of Greece, and said:
“Unfortunately during the IMF discussions we don’t raise human rights. We [Member States] never refer to them. Such issues – while I was serving at the IMF – were never raised. We never have such discussions. Reform would be good.”