2017 closed, and 2018 began, with triumphant pronouncements of economic recovery in the United States (e.g. the US economy growing again at its fastest pace at 3.2% GDP growth rate, lowest unemployment rate at 4.1%) and the European Union (e.g. registering its highest GDP growth rate in ten years at 2.2%) – leading the International Monetary Fund’s bullish optimism about the global economy posting an estimated 3.7% GDP growth rate, the highest ever since 2011. The IMF noted in 2017 that Asia still leads global growth rates, driven by continued surges in East Asia (China, Japan, South Korea), South Asia (India), and Southeast Asia (the ten ASEAN Member States), while Africa is set to expand its GDP growth rate to 3.2% in 2018 and Latin America expected to continue recovery at a 1.9% GDP growth rate. However, the strength of raw economic growth around the world certainly does not mean that we are any closer today to creating equitable economies. In contrast to robust global economic growth reports, the 2018 World Inequality Report finds that “since 1980, income inequality has increased rapidly in North America, China, India, and Russia” (World Inequality Report, p. 5), in contrast to the Middle East, Africa, and Brazil, where income inequality has been relatively stable (World Inequality Report, p. 6). (See Anthea Roberts’ take on the famous Branko Milanovic elephant chart best describing global inequality.)
The tragic surreality of income inequality was also highlighted recently in the December 2017 Statement to the UN Human Rights Council, by Special Rapporteur on Poverty Professor Philip Alston. Professor Alston’s Statement provided a sobering narrative of the debilitating consequences of income inequality and deepening poverty that now affects around 40 million citizens of the United States of America (the world’s (nominally) largest economy), impelling him to warn that “the American Dream is rapidly becoming an American illusion.” It is unsurprising therefore, that the greatest dangers in today’s good economic news, according to Kemal Dervish and Zia Qureshi at Brookings, are the social tensions expected from highly inequitable, albeit growing, economies:
“What is not really up for debate is that inequality within countries is rising fast. While individual countries show different levels of inequality, its rise has been evident almost everywhere, with income and wealth increasingly concentrated at the very top. This trend will accelerate as new technologies, regardless of how much productivity growth they generate, continue to increase the skill premium, shift income to frontier firms, and allow new types of near-monopoly, “winner-take-all” positions to develop on a global scale.
Herein lies the biggest danger in today’s exuberant headlines about growth. Many believe that rapid growth can act as a virtual panacea for countries’ political and social woes, including the rise of populism and nationalism. But if the benefits of rapid growth accrue to the top 5% or 1%, social tensions are bound to rise. And the fact is that it will be difficult to develop policies that can reverse damaging political trends and promote more widely shared growth.”
Converging events around the world have spilled over into a revived debate on the relationship of human rights and economic development. In the 1990s, the ‘Asian values’ debate challenged the universality of human rights and argued that States dealing with consequences from colonialism required more stable societies conducive to economic development, diminishing the importance of full human rights compliance during such political, social, and economic transformations. Scholars and international development workers also debated the proper relationship of human rights and development, but this question has long been settled in favor of Amartya Sen’s human rights-aligned conception of capabilities-driven development, at least as reflected in Articles 5 and 6 of the UN Declaration on Development; the United Nations’ Millennium Development Goals (MDGs); and the World Bank’s landmark study Human Rights and Economics (which provides the economic case for integrating human rights into development policies and programs).
However, the recent rise of (often) popularly-elected strongmen leaders around the world increasingly challenges the prevailing wisdom that human rights compliance is intrinsic to achieving a State’s economic development. Dani Rodrik argued recently that economic populism may be desirable at times to allow governments the freedom to experiment with economic policy, so as to rein in and counteract powerful multinational corporations, foreign investors, private industries and other market-dominant institutions involved in regulatory capture. This is not the same, however, as political populism that tolerates delayed or postponed human rights compliance – even outright human rights violations – somehow as a necessary tradeoff for desired levels of economic development. As Human Rights Watch Executive Director Kenneth Roth describes in the 2017 World Report:
“Human rights exist to protect people from government abuse and neglect. Rights limit what a state can do and impose obligations for how a state must act. Yet today a new generation of populists is turning this protection on its head. Claiming to speak for “the people,” they treat rights as an impediment to their conception of the majority will, a needless obstacle to defending the nation from perceived threats and evils. Instead of accepting rights as protecting everyone, they privilege the declared interests of the majority, encouraging people to adopt the dangerous belief that they will never themselves need to assert rights against an overreaching government claiming to act in their name.
The appeal of the populists has grown with mounting public discontent over the status quo. In the West, many people feel left behind by technological change, the global economy, and growing inequality. Horrific incidents of terrorism generate apprehension and fear. Some are uneasy with societies that have become more ethnically, religiously and racially diverse. There is an increasing sense that governments and the elite ignore public concerns.
In this cauldron of discontent, certain politicians are flourishing and even gaining power by portraying rights as protecting only the terrorist suspect or the asylum seeker at the expense of the safety, economic welfare, and cultural preferences of the presumed majority. They scapegoat refugees, immigrant communities, and minorities. Truth is a frequent casualty. Nativism, xenophobia, racism, and Islamophobia are on the rise.” (2017 World Report, p.1.)
In this post, I examine two implicitly recurring legal justifications invoked by today’s politicians: the first anchored on the principle of self-determination as a State prerogative insulated from international scrutiny, while the second classically argues the State’s inherent sovereign right and duty to act in times of undefined exceptional situations or national emergencies. These implicit legal justifications can be traced, among others, to the reasoning articulated in many recent pronouncements, including those by Chinese President Xi Jinping’s recently announced ‘socialism with Chinese characteristics’; United States President Donald Trump’s diminished emphasis on human rights in the USA’s announced National Security Strategy; the Philippines’ President Rodrigo Duterte who insists that human rights concerns will not stop the drug problem and its impact on Philippine development; Turkey’s President Recep Tayyip Erdogan who argued that Turkey’s economic growth rate would “silence the opposition”; or Russian President Vladimir Putin who declared that Russia’s economic growth will outpace the world and who had previously publicly recognized the value of human rights in 2012 under certain qualifications (e.g. “human rights are more important than national sovereignty….But if this principle is used as an excuse for a presumptuous violation of national sovereignty, and if human rights are protected by foreign forces and selectively, and if, while “protecting” those rights, they violate the rights of many other people, including the most fundamental and sacred right, the right to life, this is no longer a noble effort. This is merely demagoguery.”).
Both the above justifications of self-determination and sovereign acts in emergencies are themselves contained in human rights law. Significantly, none of today’s prominent leaders openly reject the relevance of human rights compliance, but rather justify or tolerate a sequenced or selective application of human rights while pursuing their countries’ economic development paths. What appears lacking thus far from these seeming human rights-based justifications, however, are the essential dimensions of public participation and direct accountability to populations, whenever such leaders assert, on their populations’ behalf, these delegated principles of self-determination and sovereignty.
Additionally, I take the view that in this revived debate over the relationship of development and human rights, governments remain just as bound to ensure that their avowed “pro-economic development” policies also do not violate the core human rights principle against non-discrimination [ICCPR Article 2(2); ICESCR Article 2(2)]. Policies that purposely exacerbate inequality favoring certain elites or special interests groups can be deemed inconsistent with the State’s specific duty to guarantee rights under the ICCPR and ICESCR without discriminating as to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This is exactly why development can no longer be conceptualized in isolation from human rights. Spaced or sequential human rights compliance – as arbitrarily determined by leaders insisting on the expediencies of economic development – is not the same as the progressive realization of economic, social, or cultural rights.
Self-Determination, Human Rights, and Economic Development
Self-determination is a right of all peoples to “freely determine their political status and freely pursue their economic, social, and cultural development” [ICCPR Article 1(1); ICESCR Article 1(1)]. It is not a right that accrues to governments or government leaders, but rather a right that inheres in peoples. The International Court of Justice explicitly cautioned in the Western Sahara Advisory Opinion that “the right of self-determination requires the free and genuine expression of the will of the peoples concerned.” (Western Sahara, Advisory Opinion, ICJ Reports, 1975, at para. 55). While there is no prescribed path for peoples pursuing their economic, social, and cultural development, it is clear that governments stating that their exercise of the people’s right of self-determination through development policies must also be based on the free and authentic expression of the will of the peoples concerned. In this regard, would it suffice to argue that an elected strongman leader’s development policies that assert sequenced or selective human rights compliance should be presumed to have a continuing imprimatur, because the strongman leader received a popular mandate from the electorate? That is a difficult assumption to make. In the first place, the identification of peoples that can assert self-determination (including of the economic kind) is itself a complex process that lacks a uniform definition or method. At least, in the context of decolonization, what has been clear is that:
“While, in principle, the will of a people could be formed in various ways—through government decision or parliamentary resolution, possibly supported by a plebiscite, or through a referendum—understandably, given the circumstances of decolonization and the fact that it should be an act of self-determination, preference is accorded at least implicitly to referenda: Principle IX UNGA Resolution 1541 (XV) of 15 December 1960 states that ‘[t]he integration should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage’ (reaffirmed by the ICJ in the Western Sahara Advisory Opinion at para. 57; but nota benethe caveat in para. 59). Outside the context of decolonization however, preferences may be different (see paras 33–39 below). Apart from that, it is important to note that one act of self-determination does not exhaust the right. The right subsists and continues to be vested in the people.” [D. Thurer and T. Burri, Self-Determination, Max Planck Encyclopedia of International Law, para. 22(ii).]
To the extent, therefore, that a strongman leader’s economic development policy also delays compliance with human rights that the State inherently owes to its people, it can be argued that such a policy supposedly implemented in the exercise of economic self-determination should reflect the freely expressed wishes of the people through informed and democratic processes. At the very margin, at least, there should be authentic public participation in an economic development policy that purports to delay respecting, protecting, or facilitating the enjoyment of the human rights of a State’s population, to begin with. It is this aspect that strongmen leaders often are silent about, when they assert a “self-determination” justification to pursue policies for economic development that may set aside, delay, or otherwise violate the State’s human rights obligations to their populations.
Sovereignty, Exceptional Situations, Rule of Law and Development
Invocations of exceptional situations and national emergencies to justify derogations from human rights obligations are common in the history of international life. (I’ve discussed this at length here; others have done so as well here, here, and here, among others.) What is quite unique when strongmen leaders have, in recent years, invoked sovereign duties to meet exceptional situations is that they do not often explicitly articulate derogation clauses in the applicable international human rights treaties. Rather, there are profuse references to preserving “the rule of law” in relation to development, echoing the General Assembly Declaration on the Rule of Law at National and International Levels:
“7. We are convinced that the rule of law and development are strongly interrelated and mutually reinforcing, that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law…” (Declaration, para. 7).
World leaders invoke some amalgam of the above reasoning when asserting that they act to restore the “rule of law” and protect their people’s sovereignty and economic development, to justify measures that may set aside, delay, or otherwise violate human rights obligations owed to their populations. (See for example here, here, here, and here, among others.) Such leaders also contest the truth and veracity of fact-finding on alleged human rights violations (see for example here, here, here, and here, among others), while often rejecting public participation in the human rights fact-finding process. While some of these States (rightly or wrongly) criticize alleged biases in United Nations human rights reports, what also remains lacking is an open environment within their national jurisdictions that would allow their citizens to participate as members of the public in the human rights reporting, verification, monitoring, and fact-finding process. If the 2018 Freedom House Report is any indication, there are fewer and fewer national environments that welcome genuine public participation in the authorship, implementation, and review of economic development policies that result in setting aside, delaying, or violating human rights owed to States’ populations to begin with.
In sum, even if today’s world leaders assert the legal justifications of self-determination or sovereign duties to meet emergencies or similar exceptional situations, these are hollow substantive defenses if the States’ populations do not have any genuine public participation in the formulation, implementation, and review of such economic development policies that impact how these populations’ human rights are respected, protected, and facilitated. Even populist or strongmen leaders invoking these legal justifications are burdened to show that there is a free, genuine, and authentic expression of the will of the people in the economic development decision-making process.
Non-Discrimination, Human Rights, and Economic Development
Finally, world leaders that assert the primacy of their economic development policies as a means to realize human rights aims for their populations are in no way immune from observing the continuing duty of the State under Article 2(1) of the ICCPR and the ICESCR to ensure non-discrimination, e.g. “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, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Committee on Economic, Social and Cultural Rights clarified in General Comment No. 20 that discrimination “constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.” (CESCR General Comment No. 20, para. 7).
To the extent that States’ economic development policies can produce or exacerbate income inequality, the principle of non-discrimination is violated when States’ economic development policies to realize ICCPR or ICESCR rights create unjustified distinctions based on race, gender, ethnicity, religion, property, political opinion, or other status. It is in this sense that I take a different view from Samuel Moyn’s blanket assertion that “even perfectly realized human rights are compatible with radical inequality.” Kathryn Sikkink rightly challenged this assertion (and its lack of empirical proof) in her 2017 book pointing out counterpart successes and incremental advancements in the role of human rights in social issues such as education, health care, and gender equality. I would add that, contrary to Moyn’s view, perfectly realized human rights – spanning civil, political, economic, social, and cultural rights – would not exist if there is radical inequality to begin with. States’ economic development policies (including those on tax, labor, government spending, monetary policies, among others) and the conduct of government institutions are among the variables that have a direct impact on the creation or prolongation of income inequality. Where those policies are formulated oblivious to the States’ human rights obligations, inequality is more than likely to take on the “radical” nature Moyn describes.
To conclude, while the revived debate on the role and relevance of human rights in relation to economic development persists today among world leaders (especially strongmen populist politicians) – or, even, as it appears today, also academic scholars – there is small comfort to be had that these discourses from actors of all political and ideological stripes are now largely taking place within the plane of human rights law, rather than past leaders that openly reject the applicability of human rights law. In this sense, we are so much less in the era of “ships passing in the night” (Philip Alston’s famous article 13 years ago on the debate on human rights and development) when viewing the nexus between human rights and development today. UN Secretary-General Antonio Guteres now stresses the need this 2018 for a “new deal for a fair globalization” premised on human rights. That’s a promising start for an engaging revived debate from all quarters this time around.