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

Porzecanski, Arturo C. (2017): Human Rights and Sovereign Debts in the Context of Property and Creditor Rights.

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.

• Item Type: MPRA Paper
• Language: English
• Keywords: Human rights; property rights; creditor rights; sovereign debt; HIPC
• Subjects: F - International Economics > F3 - International Finance; F - International Economics > F3 - International Finance > F34 - International Lending and Debt Problems; F - International Economics > F3 - International Finance > F35 - Foreign Aid; H - Public Economics > H6 - National Budget, Deficit, and Debt > H63 - Debt ; Debt Management ; Sovereign Debt; K - Law and Economics > K1 - Basic Areas of Law > K11 - Property Law; K - Law and Economics > K1 - Basic Areas of Law > K12 - Contract Law; K - Law and Economics > K3 - Other Substantive Areas of Law > K33 - International Law; K - Law and Economics > K3 - Other Substantive Areas of Law > K39 - Other

References

Philip Alston, ‘Against a World Court for Human Rights’ (2014) 28 Ethics & International Affairs 197

Michela Barbot, ‘When the History of Property Rights Encounters the Economics of Convention: Some Open Questions Starting from European History’ (2015) 40 Historical Social Research 78

Christian Barry, ‘Sovereign Debt, Human Rights, and Policy Conditionality’ (2011) 19 Journal of Political Philosophy 282

Lee C. Buchheit and G. Mitu Gulati, ‘Responsible Sovereign Lending and Borrowing’ (2010) 73 Law & Contemp. Probs. 63

Volha Charnysh, Paulette Lloyd and Beth A. Simmons, ‘Frames and Consensus Formation in International Relations: The Case of Trafficking in Persons’ (2015) 21 European Journal of International Relations 323

Francis Cheneval, ‘Property Rights as Human Rights’ in Hernando de Soto and Francis Cheneval (eds.), Realizing Property Rights (Rüffer & Rub 2006) 11-17

Adam S. Chilton and Eric A. Posner, ‘The Influence of History on States’ Compliance with Human Rights Obligations’ (2017) 56 Virginia Journal of International Law, forthcoming

Jay Cohen, ‘The History of Imprisonment for Debt and its Relation to the Development of Discharge in Bankruptcy’ (1982) 3 J. Legal Hist. 153

Commission on Legal Empowerment of the Poor and United Nations Development Programme, ‘Making the Law Work for Everyone’ (2008) 2

Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development (Brookings 2006)

Harold Demsetz, ‘Toward a Theory of Property Rights II: The Competition between Private and Collective Ownership’ (2002) 31 Journal of Legal Studies S653

Jack Donnelly, ‘State Sovereignty and International Human Rights’ (2014) 28 Ethics & International Affairs 225

Julio Faundez, ‘Should Justice Reform Projects Take Non-State Justice Systems Seriously? Perspectives from Latin America’ (2006) 2 The World Bank Legal Review: Law, Equity, and Development 113

Andrés Fernández and César E. Tamayo, ‘From Institutions to Financial Development and Growth: What Are the Links?’ (2017) 31 Journal of Economic Surveys 17

Mary Hallward-Driemeier, Enterprising Women: Expanding Economic Opportunities in Africa (World Bank 2013) ch. 7 Tim Hayward, ‘Human rights vs property rights’ (2013) JWI Working Paper 2013/04

Louis Henkin, ‘Human Rights and State ‘Sovereignty’’ (1996) 25 Georgia J. Int'l & Comp. Law 31

Stefan-Ludwig Hoffmann, ‘Introduction: Genealogies of Human Rights’ in Stefan-Ludwig Hoffmann (ed.) Human Rights in the Twentieth Century (Cambridge 2011)

Micheline lshay, ‘The History of Human Rights: From Ancient Times to the Globalization Era’ (Univ. of California 2008)

Margaret Keck and Kathryn Sikkink, ‘Historical Precursors to Modern Transnational Social Movements and Networks’ in John A. Guidry, Michael D. Kennedy and Mayer N. Zald (Eds) Globalizations and Social Movements (Michigan 2000)35

David Kinley, Civilising Globalisation: Human Rights and the Global Economy (Cambridge 2009)Louis E. Levinthal ‘The Early History of Bankruptcy Law’ (198) 66 U Pa LR 223

Ursula Kriebaum and Christoph Schreuer, ‘The Concept of Property in Human Rights Law and International Investment Law’ in Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich (eds) International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford 2009) 86

James E. Krier, ‘Evolutionary Theory and the Origin of Property Rights’ (2009) 95 Cornell Law Review, 139

Eduardo Lora and Mauricio Olivera, ‘Public debt and social expenditure: Friends or foes?’ (2007) 8 Emerging Markets Review 299

Cephas Lumina, ‘Sovereign debt and human rights’ in Realizing the Right to Development (United Nations 2013) 289

Saeid Mahdavi, ‘Shifts in the Composition of Government Spending in Response to External Debt Burden’ (2004) 32 World Development 1139

Jenny S. Martinez, ‘Human Rights and History’ (2013) 126 Harvard Law Review 221

Sabine Michalowski, ‘Sovereign Debt and Social Rights: Legal Reflections on a Difficult Relationship’ (2008) 8 Hum. Rts. L. Rev. 35

Minority Rights Group International, ‘Moving towards a Right to Land’ (MRG 2015)

Robert Nozick, ‘Anarchy, State, and Utopia’ (Blackwell 1974) Chrystin Ondersma, ‘A Human Rights Framework for Debt Relief’ (2014) 36 U Pa J Int’l L 2

Ana Palacio, ‘Legal Empowerment of the Poor: An Action Agenda for the World Bank’ (World Bank: March 2006)

Eric Posner ‘Human Welfare, Not Human Rights’ (2008) 108 Columbia Law Review 1758

Murray N. Rothbard, ‘For A New Liberty: The Libertarian Manifesto’ (Ludwig von Mises 2006)

Dustin Sharp, ‘The Significance of Human Rights for the Debt of Countries in Transition’ in Juan Pablo Bohoslavsky and Jernej L. Černič (eds) ‘Making Sovereign Financing and Human Rights Work’ (Hart 2014) 47

William Smith, William Wayte and George Eden Marindin (eds) ‘A Dictionary of Greek and Roman Antiquities’ Vol 1 (John Murray 1901) 306

Edward A. Tomlinson, ‘Security for a Commercial Loan: Historical and International Perspectives’ (1999) 23 Md. J. Int'l L. & Trade 77

United Nations Human Rights Council, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Cephas Lumina’ (A/HRC/20/23 10 April 2011)

United Nations, ‘Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’ (A/70/275 4 August 2015)

Jeremy Waldron, ‘What Is Private Property?’ (1985) 5 Oxford J. Legal Stud. 313

World Bank, ‘Principles for Effective Insolvency and Creditor/Debtor Rights Systems’ (2016)

Ting Xu and Jean Allain, ‘Introduction’ Ting Xu and Jean Allain (eds) Property and Human Rights in a Global Context (Hart 2016) 1