Recognized and Violated by International Law: The Human Rights of the Global Poor

Leiden Journal of International Law

Volumn 18, Issue 4, 2005, Pages 717-745

  Pogge, Thomas ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

global institutional reform; human rights; justice; negative duties; poverty; WTO

Indexed keywords

EID: 85006547958     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002980     Document Type: Article

References (59)

1. According to S. Chen and M. Ravallion, ‘How Have theWorld's Poorest Fared since the Early 1980s?’, (2004) World Bank Research Observer 19, 141-9 (also atwbro.oupjournals.org/cgi/content/abstract/19/2/141), at 153; they have managed theWorld Bank's income poverty assessments for well over a decade. They also report that 1,089 million human beings lived on less than half this amount ($1 a day). It is likely that flaws in the World Bank's methodology cause it to understate the world poverty problem (S. Reddy and T. Pogge, ‘How Not to Count the Poor’, in S. Anand and J. Stiglitz (eds.), Measuring Global Poverty (2006); also at www.socialanalysis.org).
2. United Nations Development Programme (UNDP), Human Development Report 2004 (2004), 129-30; also at hdr.undp.org/reports/global/2004.
3. UNDP, Human Development Report 1998 (1998), 49; also at hdr.undp.org/reports/global/1998/en.
4. The UN International Labour Organization (ILO) reports that ‘some 250 million children between the ages of 5 and 14 are working in developing countries-120 million full time, 130 million part time’ (www.ilo.org/public/english/standards/ipec/simpoc/stats/4stt.htm). Of these, 170.5 million children are involved in hazardouswork and 8.4million in the ‘unconditionally worst’ forms of child labour, which involve slavery, forced or bonded labour, forced recruitment for use in armed conflict, forced prostitution or pornography, or the production or trafficking of illegal drugs. ILO, ‘A Future Without Child Labour’ (2002), available at www.ilo.org/public/english/standards/decl/publ/reports/report3.htm.
5. In 2002 there were about 57 million human deaths. The main causes highly correlated with poverty were (with death tolls in thousands): diarrhoea (1,798) and malnutrition (485), perinatal (2,462) and maternal conditions (510), childhood diseases (1,124-mainly measles), tuberculosis (1,566), malaria (1,272), meningitis (173), hepatitis (157), tropical diseases (129), respiratory infections (3,963-mainly pneumonia), HIV/AIDS (2,777) and sexually transmitted diseases (180). WHO, TheWorld Health Report 2004 (2004), also available at www.who.int/whr/2004, 120-5.
6. Children under five account for about 60 per cent or 10.6 million of the annual death toll from povertyrelated causes. UNICEF (United Nations Children's Fund), The State of the World's Children 2005 (2005), inside front cover; also available at www.unicef.org/publications/ files/SOWC 2005 (English).pdf. The overrepresentation of females is documented in UNIFEM (United Nations Development Fund for Women), ‘EradicatingWomen's Poverty’ (2001), available at www.unifem.undp.org/ec pov.htm; UNDP, Human Development Report 2003 (2003), also available at hdr.undp.org/reports/global/2003; and UNRISD (United Nations Research Institute for Social Development), Gender Equality: Striving for Justice in an Unequal World (2005), also available at www.unrisd.org.
7. Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966, www.unhchr.ch/html/ menu3/b/a cescr.htm.
8. With the word ‘uncompensated’, I mean to exempt people like Oskar Schindler (as depicted in Spielberg's movie). Through his manufacturing activities and tax payments, Schindler co-operated in imposing the social institutions and policies of Nazi Germany. But doing this allowed him to compensate (more than adequately) for his contributions to harm through protection efforts for its victims. His conduct complied with the negative duties imposed on him by the human rights of the victims of the Third Reich-no less fully than if he had left Germany. In fact, Schindler did much better by these victims than he would have done by emigrating.
9. UDHR (Universal Declaration of Human Rights), approved and proclaimed by the General Assembly of the United Nations on 10 December 1948, as Resolution 217 A (III), Art. 28; see also Art. 22.
10. ‘Relative impact’, because a comparative judgment is needed about how much more or less fully human rights are realized in this institutional order than they would be realized in its feasible alternatives. 14. Part 2 of this paper is adapted froma longer essay, ‘Severe Poverty as a Human Rights Violation’, in T. Pogge, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor (forthcoming 2006). UNESCO's permission for this adaptation is gratefully acknowledged.
11. J. Rawls, ‘The Law of Peoples’, in S. Shute and S. Hurley (eds.), On Human Rights: The Amnesty Lectures of 1993 (1993), 77.
12. J. Rawls, The Law of Peoples:With ‘The Idea of Public Reason Revisited’ (1999), 108.
13. The Law of Peoples:With ‘The Idea of Public Reason Revisited’., at 37-8, 106-20.
14. World Bank,World Development Report 2005 (2005), 257.
15. In a recent speech, ‘Cutting Agricultural Subsidies’ (globalenvision.org/library/6/309), World Bank chief economist Nick Stern stated that in 2002 the rich countries spent about $300 billion on export subsidies for agricultural products alone, roughly six times their total development aid. He said that cows receive annual subsidies of about $2,700 each in Japan and $900 in Europe-far above the annual income of most human beings. He also cited protectionist anti-dumping actions, bureaucratic applications of safety and sanitation standards, and textile tariffs and quotas as barriers to developing country exports: ‘Every textile job in an industrialized country savedbythesebarriers costs about35jobs in these industries inlow-incomecountries.’ Sternwas especially critical of escalating tariffs-duties that are lowestonunprocessed rawmaterials and rise sharplywith each step of processing and value added-for undermining manufacturing and employment in developing countries, thus helping to confine Ghana and Cô te D'Ivoire to the export of unprocessed cocoa beans, Uganda and Kenya to the export of raw coffee beans, andMali and Burkina Faso to the export of raw cotton. He estimated that full elimination of agricultural protection and production subsidies in the rich countries would raise agricultural and food exports from low-and middle-income countries by 24 per cent and total annual rural income in these countries by about $60 billion (about three-quarters of the global poor live in such rural areas).
16. The Trade-Related Aspects of Intellectual Property Rights (TRIPs) Treaty was concluded in 1995. For a discussion of its content and impact, see UNDP, Human Development Report 2001 (2001), also available at hdr.undp.org/reports/global/2001/en, ch. 5); C. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPs Agreement and Policy Options (2000); C. Juma, ‘Intellectual Property Rights and Globalization. Implications for Developing Countries’, Science, Technology and Innovation Discussion Paper No. 4, Harvard Center for International Development (1999), www2.cid.harvard.edu/cidbiotech/dp/discuss4.pdf; J.Watal, ‘Access to Essential Medicines in Developing Countries: Does the WTO TRIPS Agreement Hinder It?’, Science, Technology and Innovation Discussion Paper No. 8, Harvard Center for International Development (2000), available at www2.cid.harvard.edu/cidbiotech/dp/discussion8.pdf; T. Pogge, ‘Human Rights and Global Health: A Research Program’, in C. Barry and T. Pogge (eds.), Global Institutions and Responsibilities, (2005) 36 (1-2)Metaphilosophy, special issue, 182-209; and www.cptech.org/ip.
17. In what follows, I use income inequalities to substantiate this point. Yet, inequalities inwealth are, of course, even greater (seeUNDP,HumanDevelopmentReport 1999 (1999), also available athdr.undp.org/reports/global/ 1999/en, 3; UNDP (1998) The Trade-Related Aspects of Intellectual Property Rights (TRIPs) Treaty was concluded in 1995 note 5, at 30), because well-off persons typically have more net worth than annual income, while the poor typically own less than one annual income.
18. UNDP (1999), what follows, I use income inequalities to substantiate this point note 21, at 3.
19. World Development Indicators database,my calculation.
20. Many economists find this misleading, claiming that the comparison should instead be made in terms of purchasing power parities (PPPs) and that the ‘true’ quintile inequality ratio would then be found to be ‘only’ 13:1. However, market exchange rates are the more appropriate measure for assessing the bargaining power and expertise countries can bring to bear in international negotiations. Market exchange rates are also the appropriate measure for assessing the avoidability of poverty (the fact that a mere 1 per cent of the national incomes of the highest-income countries would suffice to raise the national incomes of the lowest-income countries by 66 per cent). For comparing standards of living, market exchange rates are indeed inappropriate. But general-consumption PPPs are also problematic for the assessment of very low incomes, because the consumption expenditure pattern of the very poor differs greatly from the pattern of international consumption expenditure on which PPPs are based. By using PPPs, we are in effect saying that the poor are not all that much worse off than we are because services are so much cheaper where they live. But this cheapness of labour does not benefit them as consumers, because they must concentrate their meagre funds on basic necessities. For details see Reddy and Pogge, World Development Indicators database note 2.
21. B. Milanovic, ‘TrueWorld Income Distribution, 1988 and 1993: First Calculation Based on Household Surveys Alone’, (2002) 112 (1) Economic Journal 51, at 88; also available at www.blackwellpublishers.co.uk/ specialarticles/ecoj50673.pdf.
22. The UNDP reports annually on the number of undernourished, which has been stuck around 800 million. For 1987-2001, Chen and Ravallion, ‘TrueWorld Income Distribution note 2, at 153, report a 7 per cent drop in the population living below $1 a day, but a 10.4 per cent rise in the population below $2 a day.
23. UNCTAD(UnitedNations Conference onTrade and Development), Trade and DevelopmentReport 1999 (1999), also available at r0.unctad.org/en/pub/ps1tdr99.htm.
24. See T. Pogge,World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2002), 125-6.
25. But see World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms note 26.
26. See T. Pogge, ‘Severe Poverty as a Violation ofNegative Duties’, (2005) 19 (1) Ethics and International Affairs 55, at 55-8.
27. See Pogge, www.nps.gov/malu/documents/jim crow laws.htm note 28, at 136-9.
28. See Pogge, Pogge note 30, at 61.
29. T. Pogge, Realizing Rawls (1989), 49-50.
30. Realizing Rawls note 7.
31. Realizing Rawls note note 9.
32. The discussion of the ‘emerging norm of democratic governance’ in S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000), runs parallel to my thoughts here in three respects: the notion that the populations of the poor countries are somehow consenting to the conditions that are being imposed on them plays an important ideological role in the rich countries. Even genuinely democratic governance inpoor countries cannot actually justify these conditions.Andprogress towards such democraticgovernanceisnonethelessdesirable.Thenextsubsection(2.3.3) substantiates theadditionalpoint that present international law, shaped in the interest of the affluent countries, exerts a powerful influence against democratic governance in the poor countries.
33. In the middle of the nineteenth century, Great Britain and other Western powers prosecuted a series of ‘opium wars’ against China. The first invasion was initiated in 1839, when Chinese authorities in Canton (Guangzhou) confiscated and burned opium brought in illegally by foreign traders (www.druglibrary.org/ schaffer/heroin/opiwar1.htm).
34. See G. A. Cohen, History, Labour, and Freedom (1988), 262-3.
35. It also helped that the United States, eager to establish healthy capitalist economies as a counterweight to Soviet influence in the region, allowed the tigers free access to itsmarket even while they maintained high tariffs to protect their own note 19.
36. See Pogge, It also helped that the United States, eager to establish healthy capitalist economies as a counterweight to Soviet influence in the region, allowed the tigers free access to itsmarket even while they maintained high tariffs to protect their own note note 30, at 63-4.
37. The Convention came into effect in February 1999 and has been widely ratified since (www.oecd.org/home).
38. In the United States, the post-Watergate Congress sought to prevent the bribing of foreign officials through its 1977 Foreign Corrupt Practices Act, passed after the Lockheed Corporation was found to have paid-not a modest sum to some third-world official, but rather-a US$2 million bribe to Prime Minister Kakuei Tanaka of powerful and democratic Japan. Notwanting its firms to be at a disadvantage vis-a’-vis their foreign rivals, theUnited States was amajor supporter of theConvention, as was the non-governmental organization Transparency International, which helped mobilize public support in many OECD countries.
39. ‘Plenty of laws exist to ban bribery by companies. But big multinationals continue to sidestep them with ease’-so the current situation is summarized in ‘The Short Arm of the Law’, Economist, 2March 2002, 63-5, at 63.
40. See R. Baker, Capitalism's Achilles Heel (2005).
41. As understood byWesley Hohfeld, in his Fundamental Legal Conceptions as Applied in Judicial Reasoning (1964 [1913, 1917]), a power involves the legally recognized authority to alter the distribution of first-order liberty rights and to claim rights and duties. Having a power or powers in this sense is distinct from having power (i.e., control over physical force and/or means of coercion).
42. See ‘Going On Down’, Economist, 8 June 1996, 46-8. A later update says: ‘oil revenues [are] paid directly to the government at the highest level. The head of state has supreme power and control of all the cash. He depends on nobody and nothing but oil. Patronage and corruption spread downwards from the top.’ Economist, 12 December 1998, 19. See also www.eia.doe.gov/emeu/cabs/nigeria.html.
43. Because Obasanjo was the chair of Transparency International's Advisory Council (see ‘Going On Down’ note 44), his election in early 1999 had raised great hopes. These hopes were sorely disappointed. Nigeria still ranks at the bottom of TI's own Corruption Perception Index (www.transparency.org/cpi/2004/cpi2004).
44. This ‘resource curse’ or ‘Dutch disease’ is exemplified by many developing countries which, despite great natural wealth, have achieved little economic growth and poverty reduction over the last decades (UNDP (2004), Because Obasanjo was the chair of Transparency International's Advisory Council note 3, at 184-7; UNDP (2003), Because Obasanjo was the chair of Transparency International's Advisory Council note 9, at 278-81).
45. ‘All petrostates or resource-dependent countries in Africa fail to initiate meaningful political reforms. besides South Africa, transition to democracy has been successful only in resource-poor countries.’ R. Lam and L.Wantchekon, ‘Dictatorships as a Political Dutch Disease,'Working Paper 795, Yale University (1999), www.nyarko.com/wantche1.pdf, 31. ‘Our cross-country regression confirms our theoretical insights. We find that a one percentage increase in the size of the natural resource sector [relative to GDP] generates a decrease by half a percentage point in the probability of survival of democratic regimes’ (This ‘resource curse’ or ‘Dutch disease’ is exemplified by many developing countries which, despite great natural wealth, have achieved little economic growth and poverty reduction over the last decades., at 35). See also L.Wantchekon, ‘WhyDoResourceDependentCountriesHaveAuthoritarianGovernments?’,WorkingPaper, Yale University (1999), available at www.yale.edu/leitner/pdf/1999-11.pdf.
46. Because they have collateral to offer, the rulers of resource-rich developing countries have enjoyed greater freedom than their peers to supplement their income from resource sales by imposing huge debt service burdens on their countries (UNDP (2004), ‘All petrostates or resource-dependent countries in Africa fail to initiate meaningful political reforms. besides South Africa, transition to democracy has been successful only in resource-poor countries.’ note 3, at 202-5). Needless to say, little of the borrowed funds were channelled into productive investments, e.g. in education and infrastructure, which would augmenteconomicgrowthandgenerate additional tax revenuesthat couldhelpmeetinterestandrepayment obligations.Much was taken for personal use or expended on ‘internal security’ and themilitary.
47. The undemocratic character of the international borrowing and treaty privileges is discussed in J. Crawford, Democracy in International Law (1994), who focuses paradigmatically on the Tinoco Arbitration and thus on the second of the three problems I have outlined. His discussion of the pros and cons of honouring the ‘standard of effective control’ thus misses the important contributions this standardmakes to incentivizing and entrenching undemocratic acquisitions and exercises of governmental power.
48. See The undemocratic character of the international borrowing and treaty privileges is discussed in J. Crawford note 26.
49. The number of Chinese living below $1 a day is reported to have declined by 31 per cent, or 97 million, and the number of Chinese living below $2 a day by 19 per cent, or 137 million, between 1987 and 2001 (Chen and Ravallion, The undemocratic character of the international borrowing and treaty privileges is discussed in J. Crawford note note 2, at 153).
50. Thanks to the end of the cold war, military expenditures worldwide have declined from 4.7 per cent of aggregate GDP in 1985 to 2.9 per cent in 1996 (UNDP (1998), The number of Chinese living below $1 a day is reported to have declined by 31 per cent, or 97 million, and the number of Chinese living below $2 a day by 19 per cent, or 137 million, between 1987 and note 5, at 197) and to about 2.8 per cent or $956 billion in 2003 (Stockholm International Peace Research Institute). If global military expenditures were still at the old 4.7 per cent level, they would have been $665 billion higher in 2003 than they actually were (at 4.7 per cent of the $34,491 billion global product for 2003).
51. The World Bank Food Index fell from 139.3 in 1980 to 100 in 1990 and then to 90.1 in 2002. These statistics are published by the World Bank's Development Prospects Group, available at www.worldbank.org/ prospects/gep2004/appendix2.pdf, 277.
52. See Pogge, The World Bank Food Index fell from 139.3 in 1980 to 100 in 1990 and then to 90.1 in note 28, ch. 6, for an idea about how to modify the international resource and borrowing privileges.
53. Infra note 65.
54. See Pogge, Infra note note 28, ch. 8, proposing such a compensation scheme in the form of a Global Resources Dividend.
55. Their current effortamountsto$12.7billionannually-0.05per cent of the gross nationalincomesof theaffluent countries-consisting of $7 billion annually from individuals and corporations (UNDP (2003), Pogge note 9, at 290) and $5.7 billion annually from governments for basic social services (http://millenniumindicators. un.org/unsd/mi/mi series results.asp?rowId=592). Aggregate official development assistance is some 12 times higher, but the vast majority of it is spent for the benefit of agentsmore capable of reciprocations, as is well expressed in this statement recently removed from theUSAID'smainwebsite: ‘The principal beneficiary of America's foreign assistance programs has always been the United States. Close to 80 per cent of the U.S. Agency for International Development's (USAID's) contracts and grants go directly to American firms. Foreign assistance programs have helped create major markets for agricultural goods, created new markets for American industrial exports and meant hundreds of thousands of jobs for Americans’.
56. At the World Food Summit in Rome, organized by the FAO in November 1996, the 186 participating governments agreed to ‘pledge our political will and our common and national commitment to achieving food security forallandtoanon-goingeffort to eradicatehungerinall countries,withanimmediate[!]viewto reducing the number of undernourished people to half theirpresent levelno later than 2015’ (RomeDeclarationon World Food Security, 1996,www.fao.org/wfs, emphasis added). TheUNMillennium Declaration proclaimed in September of 2000 commits states ‘to halve, by the year 2015, the proportion of the world's people whose income is less than one dollar a day and the proportion of people who suffer from hunger’ (UNMillennium Declaration, General Assembly Resolution 55/2, 2000, www.un.org/millennium/declaration/ares552e.htm, emphasis added). While the old formulation aimed for a 50 per cent reduction in the number of poor people between 1996 and 2015, the new formulation-taking advantage of the 45 per cent increase projected for 1990-2015 in the population of the developing countries and a large 1990-2000 poverty reduction inChina-aims for only a 19 per cent reduction between 2000 and 2015. See T. Pogge, ‘The First UN Millennium Development Goal: A Cause for Celebration?’, (2004) 5 (3) Journal of Human Development 377, for a fuller analysis.
57. See UNDP, Human Development Report 2002 (2002), also available at hdr.undp.org/reports/global/2002/en. The United States led the decline by reducing its ODA from 0.21 to 0.10 per cent of GNP at a time of great prosperity culminating in enormous budget surpluses (At the World Food Summit in Rome.). After the invasions of Afghanistan and Iraq, ODA is now growing, in part through disbursements to these and neighbouring states (GeneralMusharraf's Pakistan is now the largest ODA recipient). For 2003 ODA is reported at 0.15 per cent for the United States and at 0.25 per cent for the affluent countries collectively (www.oecd.org/dataoecd/19/52/34352584.pdf).
58. UNDP note 61.
59. See Pogge, UNDP note note 28, ch. 8. This ballpark figure is based on the aggregate poverty gap relative to theWorld Bank's higher $2 a day poverty line. Amazingly, $300 billion is only 0.87 per cent of the global product or 1.08 per cent of the combined gross national incomes of the affluent countries (World Bank, UNDP note note 18, at 257)-considerably less than the annual US defence budget (c. $400 billion) or the annual ‘peace dividend’ the developedWest is reaping from the end of the cold war (c. $527 billion; see UNDP note note 56).