As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Diane Desierto. You can read all the posts in this series here.
Do communities and populations have any means of knowing what the real price is of the development decisions made on their behalf by their respective States? Are they always just doomed to reckon with seeking redress after-the-fact for any negative externalities that result from these development decisions (e.g. environmental, health, climate change, labor, alongside a whole host of human rights impacts from these development decisions), resorting to a variably asymmetric (and quite imperfect) spectrum of local, regional, or international dispute settlement processes? These questions were foremost in my mind throughout 2019, especially given the responsibility of working with fellow Experts for the UN Office of the High Commissioner for Human Rights and the UN Open-Ended Intergovernmental Working Group on the Right to Development with respect to the consultation process and drafting of the legally binding instrument on the Right to Development. Likewise, in a year when the Nobel Prize (technically the Bank of Sweden Prize) for Economics was awarded to development economists Esther Duflo, Abhijit Banerjee, and Michael Kremer (who pioneered the export of Randomized Control Trials (RCT) methods in medical research into experiments on human subjects (mostly the poor) to determine the efficacy of development-funded interventions, but generally without such RCTs being conducted using any universal or global code of ethics), what has been argued by Duflo et al. as the relative end of poverty visibly exemplified by the Chinese model of development (an amalgam of ‘authoritarian capitalism’,“market authoritarianism”, or “capitalism with Chinese characteristics”) certainly provokes much rethinking into what development is under international law, and what costs States can legally and legitimately incur to realize that development.
Most importantly, at a time when the Intergovernmental Panel on Climate Change (IPCC) has issued various reports pointing to the rapid escalation of environmental risks for the entire planet (see 2019 reports on increased risks given climate change impacts on the oceans and cryosphere, land, and global warming of 1.5 degree Celsius) alongside magnified (and often more open) violations (if not dismissals) of human rights around the world (see human rights global reports here, here, and here), can States’ decision-makers still afford to craft development plans without putting the question of negative externalities from development projects at the forefront of policymaking?
Six books in 2019 – three in the legal domain, three on economics and economic policy-making – were particularly provocative as I sought legal and other perspectives on the above questions. Sonia E. Rolland and David M. Trubek’s Emerging Powers in the International Economic Order: Cooperation, Competition and Transformation (CUP, 2019) is one of the rare sharp books about emerging economies, comprehending the pragmatist, hybridized, sequenced, selective, and eclectic development approaches taken by countries such as China and India. These approaches are often shorn of any hard ideological commitment to a neoliberal economic system, but ultimately are also less concerned with radically overhauling an international economic system that currently serves their national interests. In Rolland and Trubek’s assessment, emerging economies have an ongoing “love-hate” relationship with the international economic system that helped foster their meteoric rise to economic dominance but are also riven with many institutional and normative inequalities at the World Trade Organization or international investment treaty system. Notwithstanding the paradoxical attitudes towards the international economic system, Rolland and Trubek acutely hypothesize that emerging powers would rather seek ‘rebalancing’ rather than radical overhaul of trade and investment standards and institutions, especially when alternating strategies of cooperation and competition stand to reinforce emerging powers’ national interests. This does lead one to question if ‘Third World’ or ‘developing world’ criticisms of current international economic law are not only animated by lingering historical memories of colonial and imperial control of natural resources, but also possibly by unacknowledged instrumentalist motivations of creating a ‘Global South’-version of ‘empire’. Significantly, Rolland and Trubek did not delve into the internal asymmetries within the constellation of trade and investment between and among the ‘Global South’ – when some emerging economies can themselves more heavily leverage market dominance, capital sources, rules and institutions as against smaller countries.
Mathias Risse and Gabriel Wollner’s On Trade Justice: A Philosophical Plea for a New Global Deal (OUP, 2019) argues for a reoriented view of the State as the primary “agent of trade justice”, who must rethink the prevailing international economic system’s laws and structures by entering into a “New Global Deal” – one that eliminates exploitation in any form by completely instantiating human rights into the global system of production, consumption, distribution, investment, and capitalization. While the book itself is rich in analytical philosophy arguments envisioning and idealizing a human rights-premised global economy, it is nonetheless quite sparse on governance and operational details for complete realization of human rights in the international economic system. As a philosophical argument, however, the book sketches a powerful image of an exploitation-free ‘New Global Deal’ – and certainly led me to ask why it is that we remain very far today from human rights centrally forming both the raison d’etreof, and evaluative metric for, States’ development decision-making.
Randall S. Abate’s Climate Change and the Voiceless: Protecting Future Generations, Wildlife, and Natural Resources (CUP, 2019) cautions that the “human-caused” crisis of climate change cannot be addressed effectively by a “human-centered, development-focused regulatory framework”. Abate argues for an “ecocentric paradigm” as distinguished from the “anthropocentric paradigm”: “The anthropocentric paradigm under which the world currently operates is an approach…[where] humans consider themselves the dominant and most important life form…the ecocentric paradigm, by contrast, embraces the inherent value of nature without regard to its value for humanity.” (p. 11). To this end, Abate sees more promise for the vulnerable and voiceless in the international system, due to recent international legal developments regarding the “rights of nature” as recognized in the May 10, 2018 Advisory Opinion of the Inter-American Court of Human Rights on the relationship between the environment and human rights. To the extent that Abate effectively contends that current paradigms of ‘development’ are largely built on outworn premises, there is much to reflect on as to what the real price of man-made “development” has been thus far, given the local, regional, and global environmental and human rights impacts inflicted in the course of achieving an anthropocentric vision of ‘development’.
My last three reads for 2019 are coincidentally by (mainly) Indian economists and scholars. Kaushik Basu’s The Republic of Beliefs: A New Approach to Law and Economics (Princeton University Press, 2018), proposes a “focal-point” approach to law and economics that illuminates how to create laws that will be effective: “in the game of life the law cannot change the actions or strategies open to individuals, nor can it change the payoff functions of individuals. All it can do is to change individuals’ beliefs about what others will do. These changed beliefs can prompt individuals to behave differently and that is what can take society to a new equilibrium in which people behave differently and so the societal outcome is different…the only way law can affect behavior and outcomes is by deflecting society to a new equilibrium or a new set of behaviors…a new law, if it is to be effective, has to create a new focal point.” (p. 61) Basu’s proposal on designing effective laws through focal point approaches led me to ruminate if our multiple reform initiatives throughout the international economic system – in trade law, investment law, competition law, financial regulation, among others – are themselves changing individual beliefs about what others will do in the international economic system, at least enough to take us all collectively to new (and hopefully human rights-compliant) societal outcomes.
Raghuram Rajan’s The Third Pillar: How Markets and the State Leave Community Behind (Penguin Random House, 2019) argues powerfully for the restoration of balance to the international economic system through direct democratic empowerment of local communities even as States make development decisions and routinely regulate market forces. In Rajan’s vision, enabling local community preferences to be expressed and debated through transparent State decision-making would be the essence of “responsible sovereignty” (pp. 349-372): “there is a window of opportunity as the structure of global power shifts, in which global institutions can be remade to serve the multipolar world better…international organizations have to become more transparent and democratic.” (at p. 369).
Finally, to illuminate on the potentials of human rights in States’ development decision-making, Moshe Hirsch, Ashok Katwal, and Bharat Ramaswami edited the interesting volume A Human Rights-Based Approach to Development in India (UBC Press, 2019), which contains succinct chapters containing select case studies on how economic, social, cultural rights have been instantiated in India’s policies on food security, trade, education, labor, regulatory regimes, foreign direct investment, among others. This volume lent some empirical evidence of how States could purposely anticipate negative externalities (whether in labor, environment, or all other human rights impacts) from development policy-making.
These favorite reads for 2019, at the very least, begin to plumb the many dimensions to unravel the real price of ‘development’. It is certainly reassuring to the future of the international economic system that asking this question is now our scholarly and professional norm.