Human Rights vs Structural Inequality, International Law and the Global Economy

2018-08-02T12:31:08Z (GMT) by Owen Taylor
There are various ways in which the law appears to hold the progressive promise of combating inequality and enabling the redistribution of wealth within a society. Human Rights discourse embodies these principles perhaps more than any other area of law; appearing to offer a method of both protecting vulnerable populations from the effects of inequality, and a way of fighting for redistribution. However, this tends to overlook two aspects of law - firstly that law offers a way of balancing between rights, such that even if a struggle to include a new set of rights-based considerations (for example economic and social rights) is successful, these rights are then only balanced against others within the existing legal framework. Secondly that the fight to include a previously excluded set of principles, whilst perhaps on the one hand 'progressively developing' the law, simultaneously bolsters the legitimacy of the broader legal framework whilst also depoliticising the struggle by transforming it into one about rights (rather than combating a system that structurally reproduces and extends social inequality).This paper intends to explore this dynamic through examining the function of sovereign debt and its relationship to the broader international financial system. Confronting the ways in which sovereign debt and the international investment framework perpetuate and exacerbate international inequality has proved a key site of struggle over the distribution of wealth, risk exposure and decision making. Contemporary Investor State Dispute Settlement mechanisms have further isolated the interests of international capital (and the interests of national elites with which they are aligned) from broader social accountability, and international negotiations over real and potential sovereign debt defaults have demonstrated the symbiotic relationship between maintaining wealth inequality (via protected profits) and legal argument. The paper will highlight connections between the debt-default of Southern US States in the 1840s, the coincidence of US expansion into Latin America in order to secure debt repayments known as the Roosevelt Corollary (Mitchener and Weidenmier, 2005), through to the recent NML Capital ruling in New York which benefited the infamous vulture funds holding pre-2001 Argentinian bonds, and the utter capitulation of Syriza's debt restructuring and anti-austerity programme by the Troika. The NML Ruling is particularly educational, as in rejecting the US Government's Amicus Curiae application arguing for the protection from attachment orders of central bank funds held abroad, it seems to demonstrate that the only times law opposes the interests of the powerful (in this case the US state) it does so in favour of upholding the sanctity of contract in the interests of maintaining broader inequality.The broader narrative of the paper will situate these examples in a developing international system in which one of the most fundamental aspects of the contemporary global economy is the free flow of international capital, coupled with the formation of complex and shifting global production chains. These developments have both extended inequality between states, and undermined domestic efforts to address inequality within the state. This occurs as the state redesigns its regulatory environment to attract foreign direct investment, legislates under the threat of capital flight, and in doing so begins to favour the interests of international capital over other domestic constituencies (thus exacerbating the ways in which the state might already serve particular interests). This broad framework suggests that human rights discourse, or indeed any legal framework, is ill-equipped to address inequality. This is particularly true at the international level, and it is necessary to conclude that adopting the discourse of human rights to address inequality will shut down other more radical, and potentially productive, means of intervention.