Development, Inequality and Human Rights Final

Development, Inequality and Human Rights – Prof.
Jeremy Perelman
Table of Contents
Class 1..........................................................................................................................................................2
Class 2........................................................................................................................................................21
Class 3........................................................................................................................................................41
Class 4........................................................................................................................................................61
Class 5........................................................................................................................................................83
Class 6......................................................................................................................................................104
Class 7......................................................................................................................................................146
Class 8......................................................................................................................................................184
Class 9......................................................................................................................................................205
Class 10....................................................................................................................................................224
Class 11....................................................................................................................................................247
Class 12....................................................................................................................................................266
Class 13 (only 20 mins)............................................................................................................................280
1
Development, Inequality and Human Rights – Prof. Jeremy Perelman
Class 1
Unknown Speaker 0:36
Morning, everyone. I'm just to check those of you who are on Zoom. Can you hear me? Can you just say
yes? Or can you hear me on Zoom? No. Yes, yes, yes, yes. Okay, wonderful. Thanks. Okay, so welcome,
everyone. My name is Jeremy Perelman, I am delighted to be here to meet all of you. And all of you
remotely, I hope those of you who are remote on Zoom can come join us, we have a very nice
classroom, it's not too hot. You're welcome to come here. So I am from the University of Sausalito in
Paris, had a chance to come a few years ago to teach a class here and the title of this class, I think you
have it as development in equality, human rights, on the syllabus that I put a Moodle for you to fall in
the same order, but it doesn't really matter. It's human rights inequality and sustainable development.
But in any case, I'm going to do a little bit of a short introduction. Now before we start working,
including at one point in small groups, and we'll see how we can work it out on Zoom, I maybe I might
put you guys on zoom on, on to two separate classrooms, just to have a an inability of moment to
actually introduce yourselves to each other because I understand you're from different programs,
maybe. And also to get a chance to discuss the assignment that was for today, I hope you were able to
all have access to it. Okay, so human rights inequality and sustainable development. So the title is really
as you can tell a lot, right? We could spend an entire year on human rights, we can spend an entire
semester an entire year on inequality, what do we mean by talking about economic terms, we could do
an entire year also on development of sustainable developments. And the general idea here is to try to
give you guys both for those of you who want to pursue a career in one of these areas, or also just have
an opportunity to think very much through these questions, which, of course, are present all around the
world. The idea is to give you a map, right analytical map. So a way to think about those things all
together, try to sort of, you know, cut them into pieces and put them back together, if you want. And I
look really forward to doing this with you. So a version of this that I've been teaching this class at my
university. I've also taught it in the US versions of this class for a number of years. And it changes every
year, of course, because the world changes, but also your questions change. So I've put on the Moodle,
the readings for the first week, I haven't put yet the rest because I want to see the first maybe two
sessions to see what kind of questions I get from you to see maybe that maybe whether we will change
one or two of the other topics if needed, depending on the you know, I wanted to say device, it's not
really the right the right word, but it kind of the feeling and the questions I get from all of you. In terms
of the questions, you're asking yourself about these issues. So the title of the class with firstly, the
linkages between human rights on the one hand, so let's bracket this. Let's put this on the side for a
moment because it's of course, a very complicated box to open human rights. What do we mean by
what they come from? And of course, we'll have sessions focusing on this. But one of the linkages that
we're looking at is, you know, how human rights relates to the notion the question of inequality. So
equality, many of you can think about human rights in terms of equality, discrimination, for example.
But inequality also in the sense of let's put it in terms of, for example, economic inequality. And if you
think about economic inequality, which very often is related to other forms of inequality, many people
would say It's an issue that has come back on the agenda, at least in let's call it the west of public
debates. Well, you know, for a number of years, it was sort of out of out of out of the public discussions,
but a lot of people, a lot of economists, for example, or policymakers would consider that the quality is
very intractable. Very complicated, right? There's a lot of factors determining why is there inequality. So
2
if you think about it, for example, normativity so normatively, in terms of the, you know, morality, that
the values your touch,
to the way we judge something, for example, so how bad is inequality? You know, is it something that's
necessarily bad? Is it something that we are ready to accept as a society? Or in the world as a global
community? How bad is it in relation to poverty? Are we ready to accept some level of inequality in
order to be to start with the relationship between both and something that will explore what's the
relationship between, let's say, inequality, and not only poverty, but extreme poverty? Right, you maybe
have heard of the UN Special Rapporteur on extreme poverty? Why is it extreme? What about the
other? Poor? And importantly, what values do we attach to the way we judge that inequality is okay? Or
poverty is okay, but extreme poverty is not okay. Okay, what kind of values do we So economists or
policymakers when they measure it, and the evaluator or we as individuals, you know, when do we say
why do we say it's okay, are we ready to accept this in order to have that? Okay, so that's maybe
normatively empirically, empirically, in terms of how it inequality material, you know, manifests itself
materially, and how it can be measured, again, if we think about, for example, in relation to poverty. So
there's a there's a notion of Global Inequality, which you will find in many economics textbooks, the
notion of global inequality, we will have a session on this global inequality is the addition of inequality
between countries, say, Israel and the and Botswana, for example. And inequalities within country.
Okay. And the global trend, I'm talking here, just until before the pandemic, is interesting to watch,
because the idea was that global inequality as a whole has been over the last 20 years decreasing. Why?
Why do you think global inequality has been decreasing? Let's put COVID aside, I told you what it is, why
do you why do you think it has slowed in the equation? I told you what it is. So it's the addition of
inequality between countries and inequality within countries? Let's take inequality between countries in
the world, you think it's been growing or it's been narrowing? Anyway, the signal 20, last years, let's say
the US and the rest of the world, if you think about that are the west than the rest of the world? Do you
think the rest of the world has been catching up? In terms of economic income? Yes, supposedly,
that global inequality should have been going down with globalization with
ease of moving between countries. Yes, and also exactly, absolutely. That was the theory was we'll
untangle that theory. But also, if you look at, you know, the rise of for example, of income, and let's take
a big example, China, or India, right, these countries 20 years ago, many people were very, very low
income. And whether we like it or not, there's been a massive growth of income. And there's been
millions of people have been raised out of poverty, whether it's because of globalization or not, is
another question. Okay. So the idea is that a lot of poor countries have been slowly catching up with the
3
richer, richer countries. However, what about inequality within countries? What do you think the trend
is? Yes,
probably, the inequality has probably gone up. Because we have a lot of economic crisis in the last 20
years. And the difference of the country, the richest, and the poorest has increased,
exact so we we, the causes of this is our multiple, some people would say it's actually because of the
model of globalization. So when you have inequality rising, what's really interesting is that inequality
within countries has risen pretty much everywhere, including in poor developing countries. So the
model of catching up countries becoming less and less poor, has come to actually affects the distribution
of income within countries. So the model that has been chosen by many countries, has been one in
which inequality within countries has actually been growing. But on balance, Global Inequality is the
addition of birds. You could see that global inequality was slightly starting to slow down with COVID Of
course, that's not the trend is actually changing. Now, you can see, because of the debts, and the
pressure on low income countries that actually inequality between rich countries and poor countries
are, is rising again. And of course, the consequences in terms of income in terms of purchasing power
for buying food, for example, of the war that's going on is also probably going to affect so that's
empirically. We'll discuss we'll have a whole session on that, but also thinking about inequality
institutionally. So when I think about institutionally meaning the various institutions, the various actors,
which are, have a role in giving shape, or affecting the reasons for inequality or ways to actually diminish
it, or let it happen. I'm thinking, of course about governments, international organizations, international
financial institutions, the World Bank, the IMF, regional banks, private actors, increasingly, transnational
corporations, but also citizens, you and me, and the way we think about it, and the way we make
decisions, in our votes in our purchasing in our thinking and our talk about this. So that's just to give you
a little bit of a sort of a beginning to think a little bit about how do we entangle this notion. So human
rights inequality, and then the concept of development. Okay, development. It's a concept that has been
recently only recently associated with the notion of sustainable development. And we'll see, exactly, I'm
curious to see what you think that means. We'll do this in a small group discussion. But let me start by
asking you a question. And those of you who are on Zoom, you can also raise your hands if you want. If
you want to go now in in the street here in Tel Aviv, and you would ask, maybe you guys because you
did your readings, of course for today, and you're very well prepared, prepared. If you went and asked
someone in the streets, what does development mean? What do you think they will tell? What's the
common sense notion of developments?
Anyone else?
4
Please, technology, technology. Okay, so, you know, I arrived yesterday until I did I haven't been here for
a couple of years. I can see technology. I mean, you know, I went to the airport there was my daughter
develops here, right before you an airport. I had to wait three hours in Paris. I rushed in 20 minutes I
was tested. I was amazing. Amazing. developed. What else? And we're not okay, so material, you know,
what people have in their pockets, you know, from their income from their salaries? Yes. Okay. So if you
have more of that you're more developed if people on average have more money in their pockets?
Maybe we can think that there are more developments. Okay. Yes, probably people would say that.
What else? Yes. Probably maybe. Infrastructure Yeah. Yeah. Exactly. Infrastructure though sometimes
with technology material infrastructure. There was a hand over there that was race someone else? Yes.
transition from the more conservative point of view glory days women and so on to liberal open
mindedness.
How would you? Great so how would you call that a lot of people call they have a word for this. Okay,
that's the liberal part. But you know, going from point A, which is lower to point B, which is higher
progress, some form of progress, political progress, economic progress, social progress, cultural progress
going is very important. Going from point A to point B and valuing that point B is higher is better for a
variety of reasons. And that's really what we're going to look at today than point A. Where do you think
the notion that words the concept of development comes from which part of knowledge which part of
which disciplines do you think it comes from? Definitely not from law? Economics so social science, yes.
Not only
psychology.
Yes, exactly. And more so originally, it actually comes from hard sciences, right? You and I were All little
cells that actually develops into more cells, which developed into an embryo which develop into who
you are today, right? So you can always think about a metaphor of the growing cell, which is, you know,
the notion of biological development. That's where it actually originally comes from the very concept,
the basis as there are debates in academia about everything. But originally, the literature really looks at
biological development that formed the process of growing towards something that is bigger, bigger,
and then how do we qualify, the bigger to be better? Hopefully, you're better than when you were
embryos? That's another question. But the idea is sort of remember this, why do we is it important to
5
remember this because it's something that is very, very hard to get out of? When we'll discuss maybe
your pictures later. A lot of people today have you know, questions about development, some people
are angry about development and thinking now development, as you know, infrastructures dance that
you put in place, and you take villages away to put in place electricity, for example. That's the kind of
stuff we'll discuss, of course, this semester. But if you ask everyone, and including myself, I've been
studying this for, you know, more than a decade now, the notion that there's sort of some kind of
progress and growing is really ingrained, when we think about development and need to think about
sustainable development. That's kind of hard to get out of. Okay, so remember, this notion, this is really
something that is, I think, important. But behind this common sense, meaning and this, you know, quite
intractable concept. There are, of course, various meanings and various values that we attach to it, you
know, its development, political, you know, this liberal kind of development in our society evolves into
more levels, if that developer or is it because we will have more money in their pocket? What or is it all
of that together? That's, of course, something that we will discuss today. And we will keep discussing. I
think so, what we're trying to do is in this class is to map so some of the linkages between inequality
which have started to entangle developments, which have also started to entangle, and a human rights
to human rights is to say two things. Why think it's important to think about this now. Okay. The reason
for this is, of course, that human rights. So that said, both I think today, both the notion of human rights,
and the notion of development are put into question or challenge quite quite strongly by a number of
actors, right? If you think about human rights, we can think about, you know, the rise of nationalist
populist movements and regimes around the world. So you can imagine I am, you know, it's stressed
about the election in France today. That's one example. You can think, of course, about what's
happening in eastern parts of Europe or to think about India or other places, okay, the questioning of a
liberal society, which are the parts, it's hard for many interpreted by the Western liberal market,
democracy has some form of human rights. And it's hot. There's also been questions there are and
strong, strong questions about whether and how human rights has actually managed to challenge. You
mentioned globalization earlier, the forms of globalization that have been happening around the world,
which arguably have lifted some people out of poverty but have also generated massive increases in
inequality. Right. And a lot of people are upset about human rights, security, human rights scholars,
actors, about the fact that human rights have not gone far enough to challenge the way development
has happened, in actually choosing some kinds of consumerist models or inequality that goes with
economic growth. And, you know, there's been a couple of important books, some of you may have
heard about an important book, for example, in a couple of years ago, by Samuel Moyn. He's one of my
colleagues at Yale called not enough human rights in the global in the 21st century, which which talks
about that will read a bit of science work, but how human rights have actually not gone far enough in
challenging what he would call the neoliberal elements of globalization as a recipe for development.
Okay. And we can think, of course, also about, you know, whether and how human rights are enough to
sort of upset the north south Global North without South inequalities, if we think about COVID, access to
vaccines, things like that, you know, what about human rights there?
At the same time, you have interesting, interesting moment, I think, because a lot of people have been
asking questions now with the pandemic. And of course, with the war in Ukraine, let's just think about
the pandemic for a moment about the impacts of so It's a global crisis in terms of development in terms
6
of equality, but how does it affect human rights, we'll have a whole session on human rights, and COVID,
right? Freedom and access to movements, health, life, all of these rights, some of them sometimes very
often put 111 against each other, and a lot of debates in many societies, on how to sort of prioritize one
rights over the other. But what's been really interesting is also that a lot of human rights activists have
been trying to sort of push for human rights as an important and interesting lens and interesting tool to
imagine not only tools against the pandemic, if you think about your importance, people just realize how
much health should be a human rights. For example, in many countries, it wasn't clear now it's sort of
becoming clear, and how human rights maybe a way to imagine sort of a post COVID world in terms of,
for example, pushing for accountability, governments, if they're not actually developing equitable,
participatory kinds of policies, social policies, in particular. So we'll we'll read a bit of that. Development,
of course, is also very much a concept which is debated question by many, many, many around the
world. Okay. A lot of people will consider that the kinds of developments have led to primarily
production and consumed consumption oriented models, right development is being able to go and buy
things in a supermarket with a with a modern phone, for example, is that the way ahead, when you
know how that phone is spills, the extractive resources that you need, and the kind of impact it has both
on inequality and also, of course, on our plants, right. All ecological challenges, climate change, air
pollution, biodiversity, you know, does that actually? Are we actually on a sustainable development
path? Because development, the development models, including development policy, for years have not
paid enough attention. So that so there's a lot of questions, I'm curious to see how you in your, in your
pictures, thought about that, about whether we can actually keep up with the kind of same kinds of
developments growing better progress ideas that we've had until recently. And again, of course, the
pandemic has played an important role, there's been a consciousness about how our development
model and development models brought us closer to nature. Maybe that's one of the reasons why, you
know, humans and nature are getting closer and closer, because we're using the planet and that might
have perhaps created some kinds of interactions, which have may have we're not we don't, we never
actually know,
generated virus to actually spread to humans. But also, of course, questions by politicians and
policymakers alike to maybe change the way we do development and look back at globalization, there's
a lot of talk about let's you know, break it up, let's produce, again, industrially, locally, let's break up
these chains global value chain, because we need to be able to develop in being strong and being
sovereign, be able, as a nation in Europe, we hear a lot of that, you know, being able to do our own
education, our own industries, and we don't want to have to buy a medication from India or China, we
have to. So all of that raises, again, questions and models of development. Okay, so now a couple of
more focused questions. Many of those are in the syllabus, you don't have to write them down. With
regards to inequality again, what does it mean, we started to talk a little bit about that, how do we
measure it? What are its underlying causes? What are the solutions against inequality locally, globally?
Are they the same? What does human rights and law have to do with inequality? And more specifically,
what can human rights advocacy, right, so a lot of people are interested in sort of using human rights
tools to push against inequality? For example? are they sufficient? Is it an appropriate tool to actually
fight against different forms of inequality with regards to develop? And again, a number of questions
right? What does it mean? How do we measure it? What are the underlying ideological values between
7
behind the idea some people would critical people would say the enterprise of developments with all its
machinery, the World Bank, the development policymakers, the development agency, USA ID, etc, etc.
And again, how does this intersect with human rights? So there's been actually academic and policy field
of human rights and development that has grown over the last 25 years your books or classes on human
rights and development, for a long time, as we'll see human rights were sort of on one side. And then
development is much more focused technical economic, was on the other side. But there are now for a
variety of reasons more and more interaction between both fields. So a couple of questions which are
shaping this intersection, human rights and development. Again, they are in your syllabus. First of all, do
we think that more development, if you think about development, again, sort of constructing bridges
and dams in order to raise economic growth, for example, isn't necessarily going to produce human
rights violations, right? Or the country's development and even it's sometimes a bit brutal, actually a
way to progress to have people get more money in their pocket for a more liberal society. So maybe it's
a bad thing that we need in order to achieve or a global progress goal? If we start second question, too,
if we start to focus on human rights, if we push for human rights, okay, some forms of equality, some
form of accountability, some forms of participation. If we push, for example, for the rights to everyone,
or everyone to the enjoyment of the highest attainable standard of health care, that's article 12, of the
International Covenant on Economic, Social and Cultural Rights. For example, if and a lot of people have
been pushing for this in the period of the pandemic, for example, in terms of access to health services of
vaccination, the question that has been raised is if we do that, is it not going to block or stop? For
example, in terms of the vaccines, innovation, right? A lot of the argument was like, Well, you can't
actually give free licenses of the vaccines, because of the right to everyone to have access to health care,
because private companies need an incentive to do their own research and development and to
produce vaccines that otherwise would not happen. Okay. So there's an argument that's a repeated
argument, which is if you push for human rights, you may actually stop either innovation, but also
economic growth, it might hinder it might block you might stop economic growth, and therefore, the
assumption for a long time was like, yes, human rights, but it might be actually going in the way of
development understood as growth.
The other side, of course, there's another argument that says, if we're actually going to push for human
rights, that is going to lead us to better development, more development, because whatever liberal
society will have a participatory society will have less discrimination will have more equitable access to
social services, etc. And in that case, what do we mean by a better society? What do we mean by more?
You know, where where do we start? What are the criteria? What's the parameter to say? Yes, that's all
better. Okay. Another type of question, is poverty itself a violation of human rights? Right, we'll explore
this question is poverty, the fact that people are poor and are in the streets? And we know that happens
pretty much everywhere in the world? Is that a violation of human rights? So maybe it's a human rights
issue? Is it a violation of human rights? That's another question. Is development itself in human rights?
Do you guys know this is development and development anytime, anywhere being actually labeled as a
human rights? Anyone know? Okay, in 1986, there was a UN General Assembly declaration that said
that development is a human rights, the Declaration on the Rights to develop. So it was pushed by a
number of countries, it says, especially countries from the Global South, which has tried to get it, you
know, legal grounding for some form of redistribution between North and South. We will look at this
8
too. But of course, a lot of countries consider that no, of course, it's not legally binding human rights. If
poverty is a violation of human rights or development is in human rights, what are the advantages, but
also the consequences of framing all of these issues in human rights turns? If we talk about all the
inequality, development, probate, human Reiser? What are the consequences of doing this? It's not
always great, okay? Conversely, if we are trying to frame human rights in more sort of development
terms, and a lot of people, especially people, for example, inside the World Bank have been trying to
sort of talk to economists to make them understand that they need to infuse human rights values in the
way they think about helping countries to develop. A lot of people have asked the cause, what are the
consequences of that? You know, some scholars have called it develop mentalizing human rights making
it human rights into indicators cost benefit analysis, poly See, that's also something that we will look at.
And finally, of course, are human rights, appropriate tools to address the rising challenges of global
economic inequality, because it's rising again, of course, and all the environmental and ecological
challenges that we're facing climate change, pollution, loss of biodiversity, etc. And no will, of course,
look at different ways of different ways groups, and political actors and NGOs, of course, have tried to
mobilize human rights in order to address all of these issues.
Okay, so just a couple of words on the on the course. So the course is not a course in international
human rights law, we will do, of course, some international human rights law is not a course in
development, economics, either, it pretty much takes on a variety of things, we'll do them, we'll use a
bit of cultural anthropology, we'll use a bit of development economics, I'm not an economist, I don't like
formulas, don't worry about that. But it's for everyone to get a little bit of a vocabulary. And of course,
will do a bit of law. But this is not a class in which you know, you'll have, you know, I'll give you all of the
doctrinal elements, which you can then learn by heart and apply whenever you go to go to a law firm.
It's not that fast. Okay. And it's a class in which we do law that we'll get deeply into it. But we also
question and challenge what law we're bringing law to these questions in equality, simple. What does it
do when you bring law and it shapes things in a particular way puts things into boxes, okay, good boxes,
or bad boxes, but it does. So that's the kind of approach that will happen to this class. At the beginning
of it, I asked you to be patient, the beginning of it, beginning of it, the first week, let's say is going to be a
little theoretical and historical. Okay. The reason for this, though, I am one of my cats at my university is
to, and the director of the clinical programs. Okay, so I'm pregnant professor, but I also you all know
where the clinic is here. I don't have to explain it to you. But some very deeply, deeply, deeply
interested in human rights advocacy, I do it myself, with students, with NGOs, etc. But what I've
observed over the last, you know, 1015 years is that very often people who are in policy, policy
positions, or within firms that do human rights for NGOs, do actually not have or take the time to really
think through what are the possible consequences? What are the discourses ideas that they're bringing
into their practice, when they deploy human rights when they talk about development, when they're
resisting human rights, if you're resisting that maybe you'll be working for you'll be working for the you
know, human rights departments of a big corporations, and you'll be attacked by NGOs. Okay, that's
possible? Well, you'll have to debate with other stakeholders. So the idea here is we need to take the
moment here now. And for those of you not doing this at all, it's an occasion hopefully, to think about
this, if you're interested, intellectually, by that, to sort of really think through for a moment, where do all
of these tools that you're going to deploy or to resist, depending where you are? Where did they come
9
from? What's the history behind? What are the ideological inclinations behind them? And what are the
debates that inform them? Okay, so that's why we go to the back in history, because very often human
rights advocates are you know, they're pressed by time and emergency and they're driving behind the
wheel driving a truck really fast. And they have to drive. Okay, so the idea here is to Okay, let's just take
a break. For those of you who are already doing this, or for those of you maybe one day, you will
remember, hopefully, I have a couple of former students who do tell me not everyone, that it was
actually helpful sometimes to go back to that history and that theory. So that's why I'm doing this is not
to bore you with I think because I strongly believe that a strong theoretical grounding in these issues is
important. And of course, the last weeks of the course we'll get much more hands on practicals we'll do
case studies we'll look at you know contemporary issues very very directly we'll even have a guests are
mentioned that I have to confirm this from from a French from a from a large French transnational
corporations which will join us will join us via zoom so we can interact with them very concretely. But
first, the bit of history and theory, if you will actually. Bear with me.
Okay, so as a way of an introduction, so I myself trained as a lawyer in Paris France, I then went to study
in the in the US. But what I think might be actually interesting for you is I, before I went back to study in
the US, I was done with law, work in a law firm. And I was like, Well, you know, somebody, I'm really
interested in issues of development. So I went, I signed up to do a master's in developing international
affairs in the US. But before that, I went to South Africa in 2001. So that it was sort of a transition in
democracy with a new fancy constitution. And I did something there on access to justice, I fundraise
with a friend of mine just passed the bar together. And we went around the country. And I was actually
really struck there. I never done in Los was something that we know did this intersection with
development or poverty. But when I actually met lawyers in interviewed them in South Africa, what was
fascinating is that they were actually doing engaging with issues I cared about social policy access to
health care. It was at the time where the HIV AIDS pandemic was epidemic was raging in South Africa.
And they were maybe some of you have heard about these really big cases, the Treatment Action
Campaign, which is a huge grassroots campaign, again, against the government, which was resisting the
diffusion of mother to child transmission, drugs, prevention medication for AIDS. And there was a big
case that came into front of the Constitutional Court of South Africa, which recognized the right to
health as something that is justiciable. So we'll get back to this, of course, when it comes so in this class,
but that was a revolution. I was like, Oh, wow. So actually, you can actually draw a law you can use not
only law naming and shaming and technical court cases, but the language of law in particular,
articulating concepts and politics of injustice that will actually mobilize people on the ground. So that
was something that was actually really interesting for me to see and learn, really, from these very, very
sort of technical lawyers who had been anti apartheid here that they were actually engaging with
governments on social policy on access to health care, housing, or education. That's what actually
inspired me. And since then, I've been continuing to sort of teach, write and work in this area. I've done
work in Sub Saharan Africa at work more recently on extractive resources, natural resources and human
rights. And what am I my goal is always to combine theory and practice and see how, you know, well
informed theoretically informed human rights advocacy can sometime this large patterns of poverty or
inequality, really on the ground. Okay, so that's enough for me. Is there any questions so far? Is there
something that I said that was not clear to you? We'll take some time, of course, at the end of the class
10
to go very quickly through the syllabus that it's on your Moodle? Is there any questions so far? Okay, so
what we'll do now is that you guys are going to work a little bit and then we'll, we'll, we'll discuss and
then hopefully, if we have time, we'll do a little bit introduction, related to GNP, GDP, HDI, all these
acronyms that you're starting to look at for today in terms of how development is being measured.
Okay, so what I'd like you to do now, and I'll give you about 15 minutes to do that is to sit in small
groups, I'll try to come back to you guys on Zoom and spit you out if I can, if I can, with this burden of
zoom. So sit in groups of let's say, four, four, or five, you know, I'll let you organize. But before you do
this, I want you guys to do two things. briefly introduce yourselves, you know, which program are you in
which country you're from? You have all broads, pictures, which I asked you to bring about, you know,
either good or bad forms of development. So the first thing I want to discuss, you know, show them
quite briefly what it is and why you chose them. And then try to discuss what kinds of definitions of
development were present in your group. So I'm not asking you to tell me my definition of development
was this might know, as a group, you have to see compare, do we have the same kind of definition? Or
do we have something that is a compromise? And if so, that's not an easy, that's a good actually group
exercise. Maybe I'll give you more than 15 minutes if you needed, try to see where we come together or
not, in terms of how do we define development in our pictures? And then the second question is, what
kind of criteria? Did we all as a group seem to choose to decide whether it was good or bad?
Some of you have examples of bad development and you have to express you know, what's the criteria?
Why did you find it bad because it didn't do it? This because it wasn't up to that standard. So you discuss
this as a group and then you try to sort of give me an account give everyone else an account of what are
the kinds of criteria? Were they the same kind of party? Are they different? That's what I'm interested.
So it's sort of a two step like first you have to discuss quickly your examples and then you have to sort of
come up with what was the definition and what were the criterias and then we'll have a group
discussion. Okay, is that clear for everyone? Yes, okay. All right. So let's start and then I'll see if I can split
those on Zoom breakout rooms? Evening? Bye Hi? right on Right You You Thank you? Day Two okay you
have about five more minutes five more minutes
What's up? Okay
all right all right. Thank you very much all right thank you very much for for doing In this
Unknown Speaker 1:00:02
so we might not have tried to hear the details of every discussion, including those of you online, we'll do
our best. So we'll start by a few groups. And if other groups are asked to say what they discuss, if it's
11
something that that you already heard in the discussion, you can just move to the things that haven't
been discussed yet. So that we try to get as much knowledge as possible. Because I want to have a bit of
time towards the end of the test, we can start getting into these economic definitions and also very
quickly just go to give you an idea of the syllabus. Okay. So who wants to start? Which group wants to
start? Okay, wonderful. So, we start
with Okay, great. Okay, so some kind of so some kind of scientific progress involved in the in the in the
first one. So, and in terms of the thank you very much for someone has to start and it's not easy. In
terms of the reasons for which your some of your examples were good or bad? Did you have a chance to
discuss this? Why were Did you have an agreement? And why were some of your examples, examples of
good development? Why do you think that is? What's the what's the value behind it? Is it that people?
For example.
Okay, so if we think about, you know, scientific progress, and in terms of solution, one of the values that
seem to be behind it, you say a solution for everyone, so that everyone has access to solutions that will,
that will benefit to the most possible the biggest number of possible of people, right. So that's one idea
that very often people when they sign up, so what's I think important to understand, we're going to
discuss your, your pictures today. But the goal of this discussion is to all make us all realize that behind
our ideas about development, there are values. Okay, we started to discuss this a little bit earlier. And
that's very important as an introduction to what we'll do today. And then, of course, in the next class,
which is to look at all these indicators. There's a lot of indicators, economic indicators, GNP, GDP Human
Development Index, there are many, many more. And what's important to know is that there are values
behind those there is a value in choosing why we say that development is GNP, or GDP, or the
development is Human Development Index, or that it's the Wealth Report indicate there's many, many
indicators. And behind these indicators, there are ideological battles, political battles, to decide which is
the best value to measure progress, or to compare one country to another. Okay, and here's, you know,
we're starting from from examples, but that's sort of where I want to go. Okay, great. So that was a
great start another group? Yes.
So all of us have been teachers. And I think that was that cannot be the only index of development. If
you don't take into account the environmental and social dimensions of development, wonderful. Fisher
society will find the social device and concrete version. General.
12
Wonderful, that's great, because it's not easy to look at the pictures and then come to consensus, I was
very quick, both of you, thank you so very much. So here, I hear something that we've already started to
talk that development can not just be measured into one thing, infrastructure or money in your pocket
or some kind of material well being, which is very often something that is behind the idea of growth. It's
not just that it has to be many other things. Okay? Otherwise, you're gonna have a, you know, divided
society, you're going to have an incomplete picture. And if today, you look at, does anyone know what
sort of the UN way development is measured? There's a term for that today. You know, have you ever
heard of the Sustainable Development Goals? Okay, sustainable development goals, how many
Sustainable Development Goals are there? Does anyone know?
Just Google
This thing is amazing, it follows. We're not developed. In fact, we don't have that. I didn't realize how
many 17. So development is not just infrastructure, it's not just growth today, there's a consensus that
development is about 17 different things. Okay. So your consensus is definitely the US consensus. And
amongst those growth, which is very often something that is pushed, and you hear on TV or on the radio
today, the growth of Israel's last quarter was x percent of GDP growth is growth growth is still there. But
you know, the academic and policy consensus is that growth, it's not just one thing, it means, you know,
a whole array of something. So then the question is becoming, do we need to get good at all of these are
better, right, with the idea of progress all of these at the same time? Because it's a lot 70? Can we
achieve all of these things at the same time? That's a real question. Okay. Great. Thank you very much.
Another group? Yes.
Very similar. Together, we all ships that aspects of development, development, understanding
development is economic development. But through all our examples in the context of Rio showing
Olympics, ideas, and China inside investing in Congo to composite disaster, so lots of examples and the
IMF. So showing that lots of nice things are on the surface. But then there are aspects that aren't
necessarily.
Okay. So bad aspects of development and economic terms is very often called the negative externalities
of growth. Okay. So development, yes, as some form of growth, but not in certain condition, not growth,
if it's done in a way that extracts natural resources in a way that will pollute the planet, or, you know,
have people die on the ground or have to go, or maybe growth that is done and what so what kind of
values you think are what what are the bad things? Is it because it's, what kind of negative externalities
13
is because it's, it's going to affect some it's going to have distributed environment? So environmental, so
growth, yes, but not
all developments. Not everybody equally certain. Already.
Great. So very often fantastic. Development, okay. So let me ask this first, is there any group here in
which the very notion of develop and remember this notion of metaphor, was absent in your
definitions? Because there are theories out there, if you think about development, in very broad terms,
17 development goals, or even just you know, a lot of people would focus on economic growth, there
are theories and France is an example we have very, you know, people in the street saying we have to D
grow, we have to do develop, we have to go back right.
topic that's development for, for example, Western civilization's can be going backwards, or other
communities or other countries. So, it was something when we discussed the criteria that brought us to
thinking what's good or bad, yeah, we found that, for us, can be very bad for others. Depends on social
norms, and so
on. Wonderful. And so I can see behind what I hear for the moment, though, sort of the idea of children
distribution, you know, who has in the past or who will now benefit from some form of progress is very
much but but that's a value, that's a choice, right? You may all think a lot of people think that if it's going
to, you know, benefit, or some people not going to be, you know, affected by the negative externalities
of growth, but others, it's a problem. Okay. But it's a value that is debated politically, ideologically. And
we'll see there's a whole history of people thinking, well, that's fine. And even today, there are some
people advocating in some countries that are, you know, most directly affected by the consequences of
climate change that still say that, you know, yes, for example, the North has to compensate us because,
you know, they've been growing for years and years, but we still have to grow. There is no call for D
growing for, you know, perfect and perfectly understandable, historical and political reasons, but it's the
idea that you have to sort of grow in various forms, but still grow in a way that is mitigated that goes
slower that is more distributed that is historically or geographically or politically different. is very much
there Yes. Perhaps Exactly, exactly. So there might be exactly there might be a trade off or
consequences. That's very much part of the definition, you will see that economists have had for a long
time, it will see that this consensus until quite recently has been that, yes, development might be
violence might be a structural destruction of traditional society towards modernization. But that is
something that has to happen, even if some people are going to suffer temporarily from it. That's
14
something that's really very much not in your mind, I think, from what I hear, but in the way economists
have been thinking about this. Other groups, other examples. Maybe you guys, so yeah,
we are on the same page of the others, we discussed about the trade off, because usually the name of
low income combinational economies are transformative into work, right, which was formerly modern
industrial economies. And Deepak in our point of view, this promotion of the Western lifestyle, expenses
of the things is already happening. And now we know that we are agreeing effect that drastic people say
that is a good thing, because it works. innovation, and innovation helps with expenses of another part of
the world. The baby doesn't agree about the things, maybe they want to change that in a different way.
So
great. I mean, this is a classic example. So nowadays, I don't think it happens. But when I was a kid,
pretty much every couple of years, you will have in the news, something that would say, there is a
completely lost tribe that has been found in the Amazon, how helicopter was going around, and it found
this tribe with, you know, people throwing stones at them, people who have been living in a completely
different time frame for hundreds of years not touched by civilization, and we're doing it right. So now
it's more rare. And then the question is, you know, do we want to then engage with these communities,
which we now very actually often know that they know how to handle the planet much better than we
do. But do we want to engage with it? Or do we not want to engage with it? Do we want to let them live
as they have always been willing to self determined, but also just let them live their own modernity?
Which is their own? Or do we want to sort of bring them the benefits of developments? What do you
think? If you think, you know, I don't have a concrete example. But a few years ago, I could still imagine
that there's a community that has been living out of, of course, making the picture, perfect years
freshwater, and animals and you know, what about it? Do you think we always would should need to
sort of let them live their life and avoid some kind of interaction in order to help them develop?
Because they when you're saying that, should we not practice that exactly. Either way, saying that you
should keep your weak. problematic because Exactly.
Exactly. Exactly. Exactly. That's, that's exactly. That's why it should work. Because very often the
question is where it's in terms of week, not necessarily in terms of that. So there's a big literature that's
out there. Coming in, particularly from Latin America, cultural anthropologists have been actually
resisting these kinds of paternalistic approaches and saying, what we need to do is let these people live
their own modernity is called you know, alternative modernity the idea that there's not just one path
15
towards development, however we define it that we need to let a tutorial Escobar is one of the authors
who wrote about it, we need to let you know alternative maternities be as they are. But then there are
questions or ethical questions and what are the alternative modernity is completely patriarchal. Society.
What if you know people are dying of diseases, we know that with a pill, we can we can actually sort it
out. Right? So there are ethical, political dimensions and debates about it. And it's not a clear cut. I'm
sure we could have a debate of two hours about this. So there are cultural anthropologists who have
been criticizing a strand of cultural anthropology that suddenly breaks up during to modernity precisely
because of that. Okay, so it's a complicated a bit but Yes, there's also photo maybe we can hear from is
there another good that hasn't you guys I'm over there
corporations structure especially like human rights see many people die, and it's always exciting to see
notice was
very interesting, you know, and also the fact that a lot of our development has been, you know, it's an
argument now that you hear a lot of our economic development and our and I think, you know, if you're
globally president for example, the fossil fuels, and you know, the production of fossil fuel related
energy. In Russia, for example, as part of the political economy of war, and how, you know, a lot of
countries develop, you know, depend on it for their economic sustainability. That's an interesting point.
So, I think, and I'm sorry, for those online if we don't actually have the time, and I don't actually know if
it will work to to hear you guys. The few things I want to say now, cuz we don't have a lot of time, that is
the following this, there's often as you say, some forms of discussions about you know, how broad or
narrow the definition of development, the definition itself, and I heard here, sort of more narrow and
broader than many of you have a sense that, you know, just growth alone is problematic, very often, the
idea is, you know, growth, yes, or all of these other things, but let's mitigate, let's make it slower, slower,
or let's make it more equal north south, or let's make it more equal around society, or let's make it
sustainable, meaning we continue to grow, but we make it okay, for in terms of, you know, impact on
climate change, there's also very often notions that development should be done from the bottom up,
right, we should do it, we should let people on the on the ground, decide rather than we going and tell
them what to do. And sometimes the we can be the World Bank team telling, you know, poor country in
Sub Saharan Africa, what they need to do, we'll look at a concrete example of that. And that is about
how development is done, north south, and equally impose etc. But it doesn't necessarily challenge the
very notion that development has to happen. Right. And, you know, you have a lot of critiques about
development is done by Western NGOs, you know, young people from the west to go and humanitarian
organizations and do you know, development work in poor countries, and there's a lot of critiques and
debates about that, that's sort of the you know, how it's done, and values to either justify or criticize it,
or different. A lot of people would say that, you know, you have to let people do it from the bottom up,
or let them do it, according to their own norms. Because if you don't, it's post colonial, it's imposing its
we telling them what to do. Other people will say, well, we'll have to let people on the ground do their
design their own policies or their own ideas, even that tribe needs to decipher its own development,
16
because not just because it's an you know, post colonial thing, but because they know better, know
better, they're experts, they know what the problems are, they know how to deal with local issue better
than an expert in a you know, a Western, you know, NGO, for example, or we want them to be able to
do it because we believe in some form of participation in your own determination, which is close to an
idea of human rights. Okay. So, the point here is that there are many values that are sometimes you
know, infraction behind the reasons for which you will say that the definition the development that you
based yourself on upon up can be judged to be good or bad, okay. And behind the very many statistics,
the many indicators that they are to measure progress, those same debates and challenges and values,
which sometimes are very different in fighting one with each other are present. So that's what I want to
briefly start getting into that. So now we're sort of going to take for a minute today couple of minutes
today and then in our next class in two days, we're going to take sort of our hearts of economists. Okay?
So we leave law on the side, don't worry, we'll do a lot of law. But for, you know, one or two sessions,
we're going to do and dive into economics to see how the field of economics has approached this. And
remember this discussion you had today, I'll come back to the two times over the class. And at the end,
we will revisit what we've actually done. So the idea here is to show while while we sort of look at these
acronyms, GNP, per capita, GDP, PPP, all of these names behind all these are is a history of contested
concepts, methodological concepts, ideological concepts, political concepts, contests, sorry.
And the questions that were posed with the readings is, first of all, what do we mean or what do
economists mean when they say development? isn't the same thing as you guys when you talk about
economics? Or is it something different? And how do we measure? And also in terms of all the
measurement tools that seems to be out there? Which one seem to incorporate broader definitions of
development? Like, basically, you guys are the Sustainable Development Goals, right, the 17 ones, and
which ones seem to indicate some form of participation for equality, human rights, ideas, sounding idea
that I've heard in the discussion? Okay. So the first reading I gave you is by a relatively, I would say
liberal mainstream central left politically economists. Who, who represents sort of a, although they're
sort of, you would say politically centered last relatively progressive, they still represent a quite
interesting the mainstream way of articulating that kind of a new textbook, but the beginning is actually
the same, what they mean by development. What's interesting, and when they define development at
the bottom of page 29, they say, development involves the necessary wrenching machines, or our heart
violent, wrenching structural change, the change for countries from doing what they're doing
unproductively sub optimally, to more productively and more optimally. Okay. So is this the only way to
define development? From what I heard from you guys? No. But that's sort of a, you know, an
economists burden is the idea, which we mentioned earlier, is that there might be some kind of things
that needs to change with potential negative consequences, you know, collateral damages, if you want
to call them like that. But what they do as many economics textbook do is that they immediately
recognize that they know that this group is out there and is advocating that there's many dimension of
development, all economists would agree, because they're intellectually honest, that development is a
multi dimensional phenomenon.
17
So they all agree with you.
And again, the SDG growth is SDG. Number eight, is one of them. It's not the only one, okay. But that's
the important bucks, and you will hear the Bucks all the time. But if you have, that's what I said earlier, if
you have to measure all of these different things that we want to achieve at the same time, growth,
equality, environmental protection, gender equality, etc, etc. It's hard, first of all, to achieve all of the
things but it's also hard to measure and compare. So the bus is a methodological, but it's basically saying
we know that it's all of these things. But it's actually hard to measure all of these things. At the same
time, the indicators of heart, it's simpler to actually compare and measure growth is otherwise a bit too
complex to define and measure. And the second thing they add is they say, well, we also know there
there is actually empirical evidence that grows
over time.
allows a lot of country to achieve all of these other things. And some of you mentioned this in your in
your in your discussion, access to scientific knowledge facilities, maybe being able to mitigate
environmental consequences, equality, liberalism, the evolution of social norms. But notice what I said
the important word here, and what I just said, is over time growth over time will allow us to achieve all
of these other things. So the economist is saying, we know that there are many dimensions that we use
growth because it's, it's actually otherwise too complex to compare the progress of a nation or the
comparison of the Progress One Nation versus the other. So it's simpler. And the other reason is
because growth relates over time to these other things. But if you listen carefully, this over time,
expresses a very deeply deeply held notion of trade off, that economists have when you need to say
over time, what does that mean? That means that all of these other things, that the 17 SDGs, maybe
that we want to achieve, might have to be put to the side for a while. Okay, you might need to trade
them off, put aside, you need to maybe deprioritize them, because growth will eventually bring all of
these to reality. And that's really important, almost sort of consciousness of economic thinking that is,
except for, you know, a few theories of degrowth, for example, very, very hard not to find, even if it's
sometimes very implicit, modern economic textbook will, you know, thankfully say, you know,
development is about all of these things, but still growth, because it's simpler. And also because
empirically relates over time, to all these other things. So when you say overtime, that means maybe we
won't get gender equality, maybe you won't get equality, maybe you will get poverty, maybe you will
get all these bad things. But eventually, when countries become rich, essentially, all of these things will
come into place. Everyone with me? Okay, so gross should come first. Can anyone very quickly tell me
the difference from what you understood between GNP, and GDP? So they say growth, and then we
18
focus on gross national product, gross domestic product. So this, again, is not to test you. It's just you
have a basic vocabulary for other meetings. And even what Yes,
GDP is the is the sum of what is produced by a group by
citizens, residents, residents of a country is totally was used. Exactly. So GNP is whatever is available to
the residents of a country, whether it's produced locally, most of it is produced locally, or whether it
comes from the outside, what can come from the outside, what do you think can come from the outside
and be available for consumption or investment? For your country, like Mexico, for example. What you
think might come from outside remittances, exactly remittances from workers who work outside and
send money to the families back in Mexico, or if the US, the returns of investments, right? You invested
abroad in a factory, that joint venture and then you get revenues that come back to you. Okay. And in
terms of development, the consensus very often is that which one seems to be most appropriate GNP or
GDP to, if you if you think about development of, you know, cap, you know, measuring the material
welfare of the people within the country within the GNP or GDP. G. GNP, yeah, exactly. Okay, GNP,
wherever it comes from, what's available, what's available for people to economically invest or consume
right now invest in the future. Okay, I'll stop here. We'll pick up on this, just stay with me just for a
minute. So I can go very quickly through the syllabus, not the whole syllabus, please read the syllabus,
it's quite long introduction that these readings, it's you know, I talked about some of the things but not
all of it. What I do want to show you is a little bit what we'll be doing in one minute, over the next few
sessions. So the next few sessions will really dig into these economical concept GNP, GDP GNP per capita
Gini coefficient TPP, HDI all of this, by next, at the end of the week, you will know it, you will know what
it is you can manipulate it, and we'll have a look at this, we'll then look at sort of key tensions, the
relationship between poverty and human rights. So we'll have a whole class on, you know, introducing
you to international human rights law. It will be a brief introduction, for those of you who don't know,
have never taken a class in international law, how does it work? How is it structured, quite an overview,
and then we'll discuss, you know, the relationship between human rights and poverty then we'll have
another question is the relationship between growth, poverty and inequality from an economic
standpoint? So those are sort of the But tensions, then we'll have a whole session starting in May 1 on
the historical steps and theoretical step, but they will be also Examples from today with it, of how
human rights and development were conceived in history. And in theory, first, very much against each
other, the idea that, you know, development comes first and human rights, whether economic, social,
cultural rights, or civil and political rights had to be put on the side, as we just discussed now, we'll then
have a session we'll have a case study on structural adjustment policies which were promoted by the
World Bank in the 1980s 90s and 2000s. We have a case study of a concrete situation of advocacy for
the right to health in the context of a sub Saharan country, you will see you guys will be playing roles, to,
you know, to see how human rights could actually try to resist and address neoliberal development
thinking in the 1980s and 2000s. It's still present today, of course, and then we'll have a session on
what's called human rights based approaches to development, which are, you know, present today,
19
partly inspired by the work of Amartya Sen, Nobel Prize of economics had a really big influence on
bringing human rights and development together, so that have a session on human rights at the World
Bank will look very deeply into how the World Bank has tried people within the World Bank has tried to
infuse human rights, interpretation at the mandate legal interpretation of the mandate of the World
Bank and into some of the standards of the international financial corporations, the private arm
financing arm of the World Bank, for example, we'll have a session on human rights dimension of
globalization. So just use of the confirmation I don't know if you do not ever will have that the guy in
charge of human rights at Michelin, which lies the biggest tire company in the world, who is going to
come in the class to zoom so you can you can see how big transnational corporation tries to infuse
human rights within their policy and their safeguard policies. We'll have a session on
COVID and how we can think about human rights, human rights law, human rights principles in both
addressing COVID and taking about post COVID. And then we'll have two sessions on a human rights. So
in October recently, there was a recognition at the UN about human rights to a healthy environment. So
we'll look very closely linked to legal cases and propositions at the level of the UN, but also domestic
litigation that has been trying to push for the recognition of environmental rights framing it as a human
rights or very interestingly, you have cases now all around the world, including in Colombia, for example,
not only giving rights to humans, but giving rights to nature itself to rivers to the Amazon forests. And
we'll look at the cases, the legal cases and think about it, of course, together. So thank you very much
for your attention. I will see you in two days.
Transcribed by https://otter.ai
Class 2
20
Okay let's begin if you don't, you could come a bit closer
Okay, so
slightly delayed starts because there was a problem with the PowerPoints. Okay, so let's begin pretty
much where we stopped last time. So we had a session in which we try to sort of begin to explore and to
question the notion of development in particular, and how one may assign the value of moral, political
or economic value to assign. Design. What progress might might look like, actually, this actually relates
very directly to a number of methodological, and I will say, even political or ideological debates around
measurements by economists of developments. And as we began to see last time, there is a very
embedded notion in development economics, which is the discipline, thinking that development
involves some kind of progress, some kind of sometimes hard transition from some kind of pre optimal
equilibrium in economic terms to a more optimal equilibrium. With the underlying idea that if you focus
on growth of the overall economists, we recognize that development is a more multi dimensional
denomination, focusing on growth might actually, over time translate into all these other aspirations
and values that one way points for a country, other social or even political positive outcomes. So there's
an embedded trade off the idea that, you know, you might have to sacrifice a number of things for a
while until you reach all of these bills. But growth is not only easier to measure and compare, but also, it
would empirically eventually lead to all of these other things. Okay. So we looked at the difference
between GNP and GDP. And we all agree that GNP gross national product or sometimes GNI gross
national income of a country is a better way to measure what's available to the inhabitants of a country
for consumption or investment for the future. Okay. So once we have sort of if GNP is, is the cake, the
cake, of course has to be shared, you can have a big cake, and 25 participants or you can have a big cake
and three participants. So that's what you call per capita, you divide essentially, the cake, Gross National
Product or GDP for others, and you measure it per capita, meaning depending on the size of the
population, that gives us an even more specific idea in economic terms of what is available on average,
for the inhabitants of a country to consume, or to invest. Okay, in some of the articles they gave you for
last time, there was a piece by by the way, for those of you interested in development. Economics, of
course, two references alone, they have a very particular editorial line, which is pretty similar for both
publications, a lot of policy makers in the area of development would look at the economists, the
Financial Times, these are sort of a two kinds of Bibles, for policymakers in which you will find a lot of
references, but remember, they have a very specific editorial life. So in The Economist, one of the
articles I gave you talked about GDP growth, if you listen to the radio, or you look at the newspaper, you
will still hear not so much about GNP, you will hear about GDP and not so much GDP per capita meaning
divided by the amount of the population. But GDP growth, Israel grew by X number of percent last
quarter, France grew last year by 3% 7% 0.2%, etc. That is still very, very much you know, out there and
important, why do you think that is important and for whom?
21
Those of you of course on
our welcome to participates
through you, I hope we can.
So why is GDP growth important if we decided that GNP is, you know, looks at you know, what's
available and GNP per capita who looks at GDP growth when you say, Come on, help me out. Otherwise,
it's going to be electric. Anyone? Yes. for investment purposes from other countries, great investors in
particular invest Cirrus, you know, so economic news, economically, investors look to invest in markets
that are which are growing, because the return on the investment is going to be depending on the
dynamics of the market. So GDP growth shows sort of the dynamic of how an economy is growing. And
for investors, which are really important actors, of course, in the global economy, it's really something
that's important. Yes. Governments, also governments, like, you know, governments go to the
negotiation table when they have to be negotiate a bilateral investment treaty, or trade deal. They, you
know, France a couple of years. They have, you know, had a GDP growth recession, meaning that for
more than two consecutive quarter, you had a negative growth. That meant that foreign direct
investment in France went down by 60%, or something, because the signal to investor was bad. And
then when the French President tried to negotiate something with Germany, or the UK, which were
growing, doesn't look so good in terms of even just like economic June geopolitical power, it's
something important. The article also add something from an economic standpoint, that is important
that in order to two countries very often in order to finance whatever they want to finance, healthcare
and army, very often need to borrow, they borrow on financial markets. And the more growth you have,
the more the cake grows, the easier of course is going to be to repay the debts that you owe, okay, the
more output there is, the more you can actually tax on that output in order to reimburse your debts.
And if you don't have a GDP growth that is actually growing, it's going to be harder to borrow on
international financial markets, because, you know, your growth seems to be very sluggish, or
sometimes even negative. So it's a bad signal. So the interest rates that financial markets are going to
ask of a country in order to borrow it. So the yield sometimes are going to be more difficult to obtain.
Borrowing, because of the ways on investments, right. So this is why investments, government
reimbursements of the debts. That's why GDP growth is still very much there. But from our perspective,
it really focused on the well being of people. This is really what shouldn't be the focus, but there is an
almost an addiction to that because it parties, you know, it's something that is important for a number
of economic actors. But there's a lot of denunciation by scholars, economists, that there's a fetish about
GDP growth that we should actually restrain for first because it doesn't really look at what's happening
22
to people. And second, of course, because that's an argument that if you only focus on producing,
producing, producing, you might not see the negative consequences of that particular environmental
consequences of what growth means that we will get back. Okay, so if we go back to this, and we
bracket this pro moment, so let's say, let's go back to GNP per capita, okay. The meaning you had for last
time mentioned, GNP per capita P P. P, you remember this? What is PPP mean? And can anyone try to
explain me very simply, why it's there was I don't I don't need the formula. I just need a, you know,
common sense explanation. What does PPP mean? Yes, try, try.
Thank you. So I think, basically, since the GNP is measured in US dollars, it doesn't necessarily give an
accurate reflection of, you know, how much is actually going back for capita. So you're sort of adjusting
it to show in real time you know, how much making resources are going back to the people on an
average. So like to make the table that showed that you could adjust it for example, for some countries,
especially the global south PPP into account whereas for other countries, it's sometimes it creates a
separate Japan decreases, it's increasing the static for countries like in the EU or like, the UK. Exactly.
So DBT purchasing power parity, purchasing power parity, so just when you look next time at a reading
you will know what it is. What it essentially is saying is that if you use what's called nominal exchange
rates, I think the example was Mozambique, if I remember correctly, the average income per capita of
Mozambique would be in US dollars, 230 US dollars, something like that. Okay. But with 230 US dollars,
US dollars in Mozambique. If you could actually purchase much more than if you were in the US, okay,
because in the US, you know, in New York a haircut, maybe now it's $40 or $30 US dollars, it was one or
two US dollars, US dollars. So the idea is to sort of take these $230 and put them in the context of the
US, because we're using US dollars as a comparison. And if it wasn't us, a person from Mozambique was
in the US, they would have the equivalent of $797, if I remember correctly, or something like that, which
is still much, much, much less than the average US citizen, but it allows you to give more of a
comparison, you know, used to used to try to sort of translate what is actually purchasable, with these
230 US dollars in Mozambique, if you compare if you want to compare it with the US. And there are
complex economic explanations for this, that are explained by the fact that only tradable goods are
reflected in the exchange rates that oh, that you don't actually need to know. But just know that it gives
a better picture, a more realistic picture of what the purchasing power out of the pockets power within
a country is compared to others. So it gives a more realistic sense of what people can actually buy. And
then you can really compare. And Mozambique, it's $797. If you put that the nominal amount in the US
Consulate, so you will often have a comparison of how many how much people have in their pockets in
PPP terms that gets a better comparison of all countries. So that's one. So we have GNP per capita PPP
that we're getting really closer to a good economic measurements of just, you know, income that's
available to people. But of course, what's the problem with that? 797 TPP? That would be the average of
what a person in Mozambique, if you wanted to compare it with someone in the US has a paper or
pocket? But of course, what's the problem with that?
23
What's the problem with an average? The average does not
indicate to be accurate. Because we just take what you can get, they get into that.
Okay, so know what the average person in Mozambique, the PPP allows to say, you know, this is really
what they have in the pocket, the average person, if you had to sort of draw an average person,
Mozambique, that person would have $797. And then you can compare it with France with Zimbabwe
with other countries. But what's the problem with that sort of picture of the average?
Yes, normally, there's not really an average a lot more.
It doesn't account for the distribution of the income some people might have much. And actually, in the
example we have, some people have much, much, much more insurance in their pocket, and a lot of
people work less. So it doesn't account for the district. This is the average income GNP per capita
average income, but it doesn't allow, it doesn't account for the distribution of that income between rich
and poor, essentially. Okay. So what do we have? What do we have in terms of measuring that? What's
the what's the, what's the word? What's the indicator we use to measure inequality? It's actually the
distribution of income. Anyway.
So yeah, it is it's quite, it's a coefficient that measures essentially the, you know, the more or less, you
know, the, it calculates the lack of distribution or the good distribution between poor and rich in a
society. It's got a name, it's called the gene.
The Gini coefficient, okay. The Gini coefficient is actually the metric. You know, pretty much in all
countries, you have the richer segments of society, which was much more income than the lower
24
segments of society. And this as we said, last time has increased pretty much the Gini coefficient has
increased. So the Gini Coefficient essentially, the closer you are to the number one, the more unequal
society is so Gini coefficients that is, you know, close to one 0.6 0.7. That's a very unequal society. We
have a lot of poor people. So you have a big, big gap between the rich and the poor. Okay. So just as a
curiosity were in which kind of countries which were Where do you think is the highest Gini coefficient
in the world? Which country is the most unequal between? The rich and the poor? Yes. Mexico? No. No.
So well, actually, yes. Um, war stricken country can can be can be tragic. Impact on inequality can be
huge. But if you think about historical reasons. Well, it does. You know, it's actually it's growing
inequality is actually growing in India, but South Africa, South Africa is the most unequal country in the
world, because of historical reasons, right? You have a very small segment of the population, which
pretty much everything both in terms of political rights, but also economic power, and a large majority
of people. So just to give you a few numbers, South Africa's Gini coefficient, according to the latest
figure is zero point 63. So remember, the closer you are to one, the more equal you are Namibia, Haiti,
Botswana, Zambia are those crevices, Southern Africa, pretty much that also other countries. You
mentioned Mexico, Latin America is interesting that Brazil used to be one of the most unequal country
in the world. But there were some redistributed policies done, especially in the first decade of the
2000s. And Lula government, which actually meant that Brazil went down from 0.6, to about 0.5. The US
the US was zero point 37. In 1986, it's about almost zero point 42. Now, Israel, I looked it up. Israel's Gini
coefficient was 0.4. In 2014, it's gone slightly down zero point 38. But it's still higher, for example, that
France has 0.32. So you can find these figures are not difficult to find. But just remember this, just to
turn back for a moment on the GDP GNP, it's really important to when I mentioned the sort of the Fetish
there is about GDP in particular, there has been really interesting moves by countries over the last few
years because of this geopolitical projection. Also this economic signal that GDP signals to investors, a
lot of countries have been making moves to actually change the way they measure all of these things.
The Gini is a bit harder. But the GNP, the GDP, for example, in a number of countries of the UK a couple
of years ago suggested that all things which are illegal, such as the buying and selling of drugs, or sex
trade, well, it might be illegal, but it's still in economic activity. There's a buyer, there's a seller, there's
an economic output that comes out of it. So they started imputing, in their gross domestic product, or
the cross national product, counting about these Nigeria two years ago, completely changed the way it
measured his GDP and suddenly the GDP really came. So you can see that behind sort of conceptual,
methodological ideas. There's also political moves to try to change this thing because of the importance
they have. Okay, so that's a sorry, I forgot to mention this earlier. But I, I wanted to, to mention this,
then, of course, okay. So if we take GNP per capita PPP, and we take into account the Gini Coefficient,
are we already are we happy with that? And essentially, what happened around the 1990s? Is that a
number of economists were a bit like your group the other day saying, Well, you know, even if we do
GNP, GDP per capita, that is still a measure of economic output, economic growth and economic income
and development cannot and should be, should not be only measured in economic terms, we'd have to
broaden the scope. With that we don't only have to say that yes, development is multi dimensional, that
will take growth and will measure PPP etc. No, we have to embed tush within the measurement itself,
new indicators that actually broaden the way we try to capture the development of the country. Okay.
So Pakistani economist book will help and Indian economist Amartya Sen. In particular, were
instrumental to say, you know, we were going to do now is we're going to push for you You indicators
that are going to measure how far a country is from achieving a number of things for things? Essentially.
Okay? income. So the idea is that not that income doesn't count. So at the beginning, it was GDP per
25
capita PPP. Now it's G and DNI gross national income is pretty much the same as GNP, PPP per capita. So
that's one thing. But there are three other things that are taking into account in what's called the
Human Development Index, Human Development Index, Amartya Sen, we will read about yourself, we
will discuss in a very interesting thinker, whose idea was that rather than thinking and calling
developments, development, just this approach, we're going to call it human development, we're going
to broaden it. So GNP, GDP per capita, but also life expectancy at birth, adult literacy rates, the
percentage of people who actually can read and write, and the percentage of people who are enrolled in
school life expectancy, school enrollments, adult literacy rates, and GNP
per capita.
And that really is interesting, because it really shows if you compare countries, if you look at just, you
know, growth per capita, and you compare their human development index ranking, you will see
differences you will see countries which if you only look at economics, economic growth, they rank you
No. Okay, an average. But if you look at these other indicators, they're actually not doing bad at all,
because they're investing in health. They're investing in education, that broader access to, you know, life
saving, saving measures, etc. So the idea is really to push for countries themselves to think about
progress in a different way, just as we discussed the other day, let's let's put other values. And let's
measure them to evaluate how well we're doing. Rather than just focusing on them. This was really a
huge contribution, especially Amartya Sen. And today, I would say the consensus in most economics
textbook, although you will see you know, GMP GDP still there for the reasons I explained, there's sort
of is a consensus that you need to use a combination of maybe the GDP GNP measurements and the
human development index, it become more and more that the institutional champion of the human
development index is the UNDP. United Nations Development Program, which publishes every year. The
problem with the G, the human development index HDI is that it was it was not taking into account a
number of things. So every year, they're trying to sort of add a few things to the human development
index, that's public Human Development Index family, we have a gender Development Index, which
pretty much measures to the difference in the levels of attainment between men and women. And
there's no country in the world, even Scandinavian countries in which the indicators are better for
women and men. That's the sad thing. But you can see the evolution in that you also have a sample in
inequality adjusted Human Development Index is the same measurements Human Development Index
for that, which I mentioned, but it takes also into account how unequal a country is or isn't. And in that
sense, I'm just giving you a few a few numbers if you take the normal human development index. On top
of the list, you have Norway, Ireland, Switzerland, the UK, is ranked 13th. Us 17, France 26, Israel 19, if
you include the adjustment of inequality, so you to the Gini coefficient in the figures or difference of
France is not 26 to 23rd. The US is not 17. But 28 in Israel, is which is ranked the 90s country in the world
in terms of human development index, if you just search for inequality goes up to 25/25 country in the
world out of 189. So you can see. It's interesting to look at those figures to see the differences. I don't
have the time to linger more on these indicators. Just know that there are I think every year and I've
26
been teaching this class for a while every year doesn't someone tell me have you seen this new
indicator? It takes everything into account. So there's efforts by a number of scholars Joseph Stiglitz was
also known The Prize in Economics Amartya Sen and my colleague John Petrucci had been assigned by
the French president a couple of years, new ways to think about GDP. And they came up with some
other measurements, which will include things which are not often taken into account in, in all of these
indicators, such as very important.
Leisurely activities, and also very importantly, from a gender perspective home what's called homework,
right? The, the measuring the product of people. And in sadly, a number of countries, large number of
countries in the world with a gender imbalance, people who do home carrying as it's called, that this
was not included, actually, in the way you measure what is happening economically in the country,
there are happiness indicators that some countries have been pushing for. So the reason also France
was pushing for the for this measurement was also to include free paid free public services, paid
services, which France has a lot of, they were not taking into account in the classic ways you measure
GDP or GNP. So there's always an agenda behind it, right. It's not the I guess you will not be conspiracy
at all. But just remember that there are moves behind indicators that indicate the commitment to values
or politics, which you actually have to take into account. It's not just completely objective. That's my
point. So let me just mention a few of these initiatives, there is what to call the multi multi dimensional
Human Poverty Index, we will look at this when we look at poverty more directly, which takes into
account what happens to the poorest members of society using negatives. So it calculates the
deprivation of a number of things, health, education and living standards. There's what you call a Wealth
Report indicator that takes into account human and social capital the World Bank has been developing
over the last few years was called the inclusive wealth reports, which tries to capture, I'm going to read
from the world like a fuller picture of economic well being it says a country's comprehensive wealth, a
huge all produced capitals, such as factories and roads, importantly, natural capital, because of course,
all of that was taken with not really taking into account the other measurements, including human
natural capital, like forests and water, human capital, which leads to earnings and net foreign assets. So
that's a you know, a new adventure, which is pushed by the World Bank. And we'll see, you know, if it
gets anywhere, you have also what's called a social progress indicator, which was influenced by famous
Harvard Business School, Professor Michael Porter, but which has been criticized not to take it to
account enough the distribution of income or gender perspectives. So there's, there's there's a number
a number of new approaches. But what's interesting to just finish back and move back to what we were
saying last time, is that there's always my sense is that the more of these indicators, battles there are,
the more it's some, somehow sometimes easier for economists to say, well, all of this is great, but it's
hard to measure. It's complicated. So let's go back to basics, which is what we know, we can measure
which is GDP or GNP, PPE, per capita. Okay, Human Development Index has made a bit of inroads, but
other than that, there's so much out there and so complex that there is a let's go back to the basic
things. But also remember, this notion of the metaphor of the self that grows and grows, all of these
indicators seem to find different ways to measure what grows. But the very notion of growing or
progress is not really questioned. Not at all, right? There's only a few theories of D growth, that they're
not trying to do indicators and are trying to argue that but there's, you know, whether it's, you know,
natural wealth or human development or the absence of multi dimensional poverty, it's always this idea
27
of ranking, measurement and progress, which is never really questioned. And that's something that of
course, has ideological, philosophical, political dimension. So yesterday, you had
one last comment. But it's actually even the butt stop
differences. So So there's, I would say, there are two camps. There's some people who are trying to push
the remeasuring differently, especially now a lot of people were to try sort of calculating the negative
externalities of any form of development in environmental terms. And there are some people who are
sort of basically you know, there's a there's a school in this literature And there's a book called anti
development, which is pushed forward sometimes by corporate anthropologists sometimes by
degrowth. Viewers, which I think is very interesting. And I think within that camp, there's different
schools of thought some one, which one to choose to enter the battle for educators and others are
saying, basically, it's always going to go back to some form of progress that we have to be defined, and
it's endlessly going to be bad. So some of them are really completely not only against development, but
against measuring it. So to thank you for your your comments. So of course, it happens to me a lot, I
forget my slides. So multi dimensional versus the idea of growth as the best surrogates then it should be
available on the on the way isn't I put it this morning, we'll put it again. And GNP versus GDP, per capita
PPP, we went through all of this the Gini coefficient, the Human Development, index family. And the
question of measuring progress. Okay. So if, as I post, is there any question about this any? Yes?
In which perspective sorry.
Yes, for investors? Yes. I mean, definitely, that's what I say. I mean, these investors will look less at the
Human Development Index, or the wealth, the multi dimensional part, in essence, that's when the one
thing they were interested in is GDP growth, the percentage of GDP growth, the dynamic of the growth
of the markets, because, and then remember, we said that we mentioned the difference between GNP
and GDP. Remember, GDP is whatever is produced in the country between even if it goes somewhere
else, such as remittances to families, or returns on investments. So that's why investors don't look at G
and E, they look at GDP, because that's what's produced, where they invested that can actually be
counted as coming back to them. And that's what they're really that's what they're really focused on.
And this is why you still have this as a pain. I mean, socially, you know, you have now more and more
what's called social impact investors, social entrepreneurships, they will actually look at this, I wouldn't
say it's the majority. It's I think, if there's some serious there's, there's there's a push to for investor to
include corporate what's called ESG, environmental and social goals within what kind of choices of
28
investment into, I think more and more, they're going to start looking especially at environmental, you
know, features of their investment that's really coming through companies and these, these indicators
might actually make more sense. But for a lot of investors, the bottom line still remains to return on
investment. So but I think it's interestingly changing. I don't know how far it goes. But there is a there's a
battle there, too. Yes. Thank you for your question. Sorry. Yes. BlackRock? Well, yeah, formally has
announced that they will actually, they will actually stop investing in, you know, so there's, there's
different dimensions, in terms of what we're doing is of course, you know, now flurry of, of investors
decided not to invest, or to divest from Russia, for example, of course, for the reasons that we discussed
last time. But in terms of the sort of human development and environmental approaches, we will we will
talk about this also, when we talk about the World Bank, because the World Bank very often, either
insurance or coal, finances, big private investment projects, and the World Bank has been nudged. No, I
can use this word more easily. Israel than in other places, has been nurtured in touch to really
incorporate environmental human rights, labor standards, and the way in which except to co financed
by the project. So, to that angle, there are some things happening. And of course, sometimes
corporations themselves, from a voluntary perspective, decided to take steps to take all of this. So what
I want to do now, and we, of course, are going to do human rights in 25 minutes, but I want to start
entering human rights, we'll have more occasions to sort of delve more deeply into it.
So, of course,
thinking about what human rights are, could be as different entry points into human rights. One would
be Quite a theoretical conceptual lecture or discussions about the origins of human rights, on their
moral rights, what is the rights? What's difference between freedom and rights? What's the difference
between what's called positive and negative rights, and we will do a bit of that, okay. There's, of course,
related to that possibility to look at the history, the conceptual and political history of human rights, in
the western relation to natural rights, when were they really born? What's the importance of a certain
number of political and philosophical events to the, you know, the development of ideas about human
rights, especially in let's say, for now, Western, liberal thinking? Again, we will do all of that too. But
partially, what I want to do today is sort of, not bracketed, not completely put to the side, I'll give you
just a few things just just that can help us start that will have, I hope, more time, especially in our next
session to discuss both the concepts about human rights and the critiques that have been raised against
human rights. But I wanted to enter sort of front directly today, in what's called I would qualify as a
positivist approach, right? The positivist approach, meaning sort of an ego, very, very straightforward,
legal approach, just that so that those of you who have never taken the class, maybe international law,
or who've never taken, of course, maybe a human rights, international human rights law, have a general
sense of beginning today have a general sense of the Spirit, not the details, but the spirit of the overall
mechanism of human rights protection, and how it functions. So just the way we're going to do this is
we're going to do a very brief historical journey, just but the journey will start really after World War
Two. So we're putting aside you know, centuries of thinking, but we're going to start there, and then
29
we'll start and we'll continue next time looking at human rights, in terms of law, okay. So a few quick
conceptual notions, okay, I'm just going to lay them out there just to for you to have a sense for those of
you not familiar so often in the literature, you see people using the notion of freedom, and you have
people or other scholars or even in general consciousness using the notion of rights. So very basically,
the difference could be qualified as such freedom is essentially the idea that an individual should be left
alone to conduct his or her own affairs without any one's interference. But the concept of freedom sort
of describes a status. When you talk when you do qualify the same thing, not no interference with what
you're trying to do. If you add the notion of our rights, and the right can be conceived morally, or can be
conceived legally, meaning it's entered into positive law, you have the notion that that individual not
only should be left to do what he or she wants, but that this individual has a claim to motion a fight is
directly related to the notion of claim on those principles of freedom. And that person is entitled to that
claim, there is a source that really says it can be a moral source, or a legal source that says that there is a
there's a an entitlement to claiming and to claiming against a duty bearer and the duty bearer in human
rights very often is considered to be missed the main duty bearers and human rights would you think is
the man who, who the people have claimed are entitled to claim? Okay, historically, traditionally, there's
a lot of debate now about whether we should not have actually other parents and that's very
interesting, but traditionally, that's it so and if you have a legal rights, that means that the duty bear has
a legal duty to actually realize that entitled, okay. So, Greg, you know, the notion of rights are sort of
relational. There's a notion of an entitlements, rights holder and a duty bear desert power dynamics.
When we talk about why we talked about red we talked about entitlement to claim against a duty
bearer, whereas the freedom is sort of more descriptive of a status that maybe someone should be Give
them to the claim involves sort of a power dynamic
relationship between a duty bear rifle or energy bear. Okay. So it's a demand for action, if you want.
Traditionally, there's been a notion that human rights there's a lot of debates about whether human
rights are of a moral nature of a legal nature, we can spend hours on this. But I think a quick thing to
remember is that, you know, you could think about human rights as sort of this, you know, deriving from
some form of moral standard in post World War Two, that moral standard has been found, essentially,
in the concept of human dignity. And borrows a lot, actually, if you read the way thinkers of the modern
human rights law, they, they didn't ground that notion of dignity, so much in what was called natural
law, natural law was a movement to sort of, you know, get away from the notion that all you know, laws
and rights, you know, derived from from God and the king, but that there will be sort of invaluable,
universal rights that belongs to individual individuals, but they will be mostly thought in terms of, you
know, liberty, property and security. After World War Two, the idea was more to ground the idea of
human rights and human dignity, but based on the ideas of Immanuel Kant's. So, again, we don't have
the time here to delve into it. But the idea here is to say that, you know, more some rights can be
considered as moral rights and the whole point of human rights struggle, would be to translate those
moral aspirations into positive law. So the struggles of human rights are very often about trying to
capture and translate and fight for translate and aspiration for equality, dignity. Participation into more
or legal instruments, okay, so that you don't have to actually go for this. So the other important
conceptual notion, I think, which is important to begin with, is the difference between what's called
30
negative rights and positive versus anyone have anyone wants to try? We'll have an idea of what we
mean by negative rights versus positive rights very basically.
Yes. Sorry.
Yes, okay. Yep. Okay, essentially, if you no worries. Wonderful, so both of you are very complementary.
Exactly. So the notion of negative right essentially
translates into the notion of non interference, basically, letting me be who I am in my individual sphere,
do not interfere, essentially, the state should not interfere negative not interfere with my security, with
my liberty with my property. And I'm really summarizing things because it's there's more here, but
essentially, that's what it comes to the right enough to be put in jail by government without due
process, that corresponds to a negative duty not to actually put individuals into jail without a due
process, okay. Whereas positive rights is the notion of positive entitlements and a positive duty on the
duty bearer, meaning the state to actually do something right, do something positive, there's we'll see
that it's not as there's been a lot of debate, but but it's the idea that you have an entitlement to
provision of some good or service, Social Security pension that you said, maybe some dimension of
providing education or health care. And there's a classic distinction here between what's called civil and
political rights which are supposed in classical ways of thinking to be mostly negative rights, the right to
that state should not interfere with people's freedom of movement, freedom. have consciousness
freedom religions, right to vote fair trial, the absence of torture of that property and what's called
economic, social and cultural rights, where the idea was long thought was that your the state would
have a positive duty to somehow provide
housing someone has their so that's the general idea, but we will see that this is actually debate. So that
or that says, just a very few, very few very basic idea. Just remember this notion of claiming entitlement
and dynamic, which is involved in emotional pride, that there are debates between whether rights are
moral or legal. And I will say that very often, the fight of human rights struggle is to translate some
aspiration, which can be qualified as moral into, you know, positive claims. And the negative, you know,
the one big importance, historically distinction between negative rights and positive rights, which we
will revisit. But now, if you take a look back at history, briefly, okay, so the first reading that I gave you
for today, is from a classic textbook by Professor department at NYU, that situates the birth of the
human rights movement, we can, of course, you know, it's been the centuries of debates in, in Western
thought and other civilizations about human rights before that moment, but the marker for this
31
textbook, so remember, of course, any textbook is a narrative that has, you know, its own biases. And
this one definitely has is 1945. And what's the what is that narrative talking about? What what what is
described as being sort of maybe the, you know, the most important historical events that probably
allowed those moral aspirations that many thinkers have to become international law, what was it what
would it talk to in particular? World War Two, yes. And what in particular in World War Two, the house,
okay. Israel hearing, today's is going to be sirens, blurring, to, of course, remember what happened. You
know, massive, you know, sort of unheard of scale of crime against people, but also other categories of
population, Roma. Other Other categories of political political opponents, the prisoners, also in German
concentration camps, but a massive amounts of crime in an industrial scale, which had the particularity
of being designed. This is important by governments, which had been democratically elected. The Nazis
come to power in the 19, early 1930s, in Germany, through regular elections, right. And until then, they
will with what you call a sort of a positivist or utilitarian approach to law in which you know, the only law
that matters is positive law, and the rest is morality. And there were aspirations for human rights. But
basically, as long as they're not into positive law, either as international treaty or domestic law, it
doesn't matter what counts is positive law. And here you have a regime which is democratically elected
and progressively enacts democratic laws and bar the need for bit whole segments of the population
first to exercise their jobs, later to have access to services eventually ask them to, you know, sign on
papers, or wear a particular sign to design their, you know, ethnic and religious. They're part of a specific
group and eventually they're put into camps to work and eventually come to the final solution of
extermination policies, pause. So that's in terms of thinking about law and human rights whatsoever,
you know, according to the Start which assumed which is a consensus here, and I would certainly not
disagree with that is the idea that it was a sort of sounding moment in which essentially, this is the core
of it, right. And it's important today when we're thinking about what's happening in the world,
international law. Before that moment was largely understood as a law that was made by states, for
states. International law was largely something that included,
I'm going to go very, very basic, and many of you are advanced international laws, students here, but
states agreeing with each other in the form of sometimes multilateral, but very often multilateral
treaties, which you can compare to contracts, right, be agreed to have mutual obligation. There was a
between World War One World War Two, a couple of some premises rights that were given to
minorities in some countries with the idea that there will be sort of a monitoring of what happens to
these very specific groups, but not, you know, big, like development, that sphere, there was also the
development of the international labor organizations with the idea of, you know, set of rights and
monitoring. But what happens really in 1945, is this there's a revolution do we hang clinic with a famous
professor at Columbia talks about sort of a really radical revolution in international law in which what
was international law, which was essentially, law by and four states only is revolutionizing the following
sets, what happens between states, and people living within his jurisdiction within his territory, from
now on, become a matter of international scrutiny. Okay, so what Germany did to its citizens was
protected by the concept of sovereignty. Well, I'm a sovereign states, there's no obligation above me,
I've been democratically elected, or even some would say, not democratically elected, I have my own
positive law. And I do whatever I want to the inhabitants of my territory, in the revolution is one in
which what happens between the state and the inhabitants of its jurisdiction becomes a matter of you
32
have mutual obligations and scrutiny, but you had something that was completely horizontal and you
start to have sort of vertical look, by other states. And what's happening and states, of course, the
sovereignty principle is not completely abandoned, because states themselves have to agree to that.
And they agree to letting themselves be scrutinized by signing on a variety of human rights treaties,
which we will look at later. But essentially, what happens after that is that through all of these treaties,
and a long, long standing history of international human rights law, there is something above that is law,
not just morality, but that is international law, that allows for a system of monitoring for states to be
scrutinized the conscious do anything without being looked at. Okay. And it's essentially seen as an
antidote to what happened with Nazi Germany, the really big push towards sort of a real kind of
complete revolution of international law. Okay. So the, the documents analyzes the 1948 Universal
Declaration of Human Rights. And, and talks about its history. So the birth of the international human
rights rule. And so as a result of this, the San Francisco Charter, the UN Charter 1945, and then through
the work that is described in the reading, eventually you will have what's called the EU Universal
Declaration of Human Rights. So the reading talks, let's have a brief discussion about this, which we will
of course revisit talks about the issue of so what's the issue of calling it the Universal Declaration of
Human Rights? When when when is it voted by the UN General Assembly? What year 94 The Rite Aid of
December 1948, which we celebrate every year as human rights the eighth of December 1948. Okay.
How many countries both for this UN General Assembly resolution within which you have this
declaration? Do you remember 56 What's the what's the problem?
How many countries do we have today?
Not enough right? Okay. Why do we have only a such a relatively small number of countries in
1948. Think about it
maybe maybe, but the reading, maybe the reading is directly addressing, you know, the big critique of
this universal declaration of human rights and a critique of human rights law in general. What's that?
With 56 countries, can we send this? Yes?
Exactly.
33
Exactly. Half of the world was under empire, right? either French or British or other. Okay. There's a lot
of people missing at the table. And the reading I gave you talks about this debate, and it's still, you
know, really rife with passions about whether this document really represented all the traditions of the
world, or was just essentially imposed by a number of states and projected the Western liberal approach
to human rights, and then essentially, marry again. And so the way it works is that you had a, you know,
actually, you had what's called the staff or the Human Rights Council, yet the UN Human Rights
Commission, under Eleanor Roosevelt was the spouse of Franklin Roosevelt, and the Canadian scholar
called John Humphrey, and a number of other French Lebanese jurists were involved in this, what they
tried to do between 1945 and 4048, is to compile to look at all of their constitutions essentially existed
around the world, the bills of rights, try to basically compile them. And if you want to use a monitor, and
sort of upload them into a single document that would reflect a universal vision of what those rights not
as morality, but as really writes, can and should be. Okay. And Mary, I'm glad to have the critique about
that was like, well, there was only a few really big players at the table. And they impose a very specific
vision of human rights, which was a Division of Human Rights in which some rights were given priority
over others. Those rights were essentially what we earlier called negative rights, or what it's called in
international human rights, law, civil and political rights, rights, the rights to freedom of assembly,
freedom of speech, freedom of consciousness, fair trial, democratic rights, etc. But from a very liberal
and individuals that have this individual versus the interference of the states. And the debate was that it
was, you know, very liberal, very individualized, very Western, and it was pushed by Western victors of
World War Two especially it was, to a certain extent, Europe, very, and Landon in the reading actually
says, Well, if you look at it, Universal Declaration of Human Rights that doesn't only impose rights of
individual versus the states, but it also talks about duties. It talks about families, it talks about
community, it doesn't only include civil and political rights, but it includes the right to Social Security, the
right to livelihood, all these articles that I asked you to read today. So that it's and she also says and it is
true, that if you look in what's called a couple abattoir, so the preparatory work of this commission, they
really went, they read, they knew that a lot of countries were not independent, they had actually was a
really fascinating exchange between some of these scholars and Gumby was preparing to lead in India to
independence and, you know, in which Kenny tries to sort of reflect what were some of the many
traditions of him in India about what our individual group price and there was an attempt to really take
this into account. The counter argument to that is in the reading again by one of the founders of what's
called a Third World approaches to international law 12 Unfortunate scholarly movements. One of its
founders, there are many of them is called McCollum was a professor at Buffalo in the US. And famously,
he denounced international human rights law in general and starting with you it was a declaration that
as as a very again, liberal bias, individualized perception of human life that favored non interference of
states within the sphere of security, property and liberty rather than more solid Ristic. Right writes for
great for example, which will guarantee and equitable redistribution of goods and services. So that's
that's his point. And his methodology is to look at history and when he's essentially saying is, well, if you
look at history, the narrative just says that, you know, it's World War Two. And then you know, the
Universal Declaration of Human Rights and all that follow that represents human rights. He says,
actually, there's a lot of concepts about human rights that you can find in the answer anti colonial
struggles before World War Two, or even just after World War Two, including the notion of self
34
determination and other forms of rights, and that those are sometimes pushed aside a little bit too
much. That's what one of the things say. And he makes a very important metaphor that is, that is well
known international human rights literature, in which he talks about the fact that
there's a long history of international law having been designed and used to justify colonialism. And if
you read this fascinating, third world approaches to international law study that looked at how
international commercial law, for example, or even maritime law was designed in order to justify some
kind of intervention to civilize the rest of the world. And he talks about a number of the dichotomy that
were present in this international law, history. And he says, in this case, international human rights,
right, so so he's very provocative, but but he says, it's essentially looks a little bit like the missionaries
who are going to, let's say, Africa, Sub Saharan Africa, or other parts of the world, under under
proponents colonization, because he says, it looks a lot like human rights groups a lot, at least the way
it's articulated, and practice by international human rights, NGOs and organizations looks a lot like the
mission civilizing mission, to save the victims of third world countries against the barbarians, they're
gonna bury rulers, okay,
it looks somewhat like the white man. And it's so dehumanizing in so many ways, because so many
organizations effectively want you to now they have the same approach, and they might understand the
tradition to like, there might be problems with some people, some traditions, but the problem is if we
are not contextualize it, right. And that's not just, I think, with human rights, it's with, like, you said that
all kinds of policy, even like climate action, which is the most important thing in the world, right now,
we're constantly solving and catering to the Western nations with the global not wide, the Global South,
which is not even responsible to lose face the impact
will have to sessions like you know, this, but the same kind of argument can be made about the law and,
you know, he makes it the powerful metaphor of, you know, Savior savages metaphor that that talks
about this, and, you know, one quote of him here, you know, says conventional human rights is based in
a on a Eurocentric prototype, not not to cultural mosaic results in other way to put you know, anything
that is not Western is others, that creates inferior John copies of the original savage people are seen as
lying outside of human rights orbit, thus creating victims who are harmed by the actions, to go a bit
further the purpose of this article. So what's interesting, because one possible danger to that and
accounting to was attacks for this is like, well, if you do this, you might be labeled as someone who's,
let's call it cultural relativist. Right? Someone will say, well, it's Western, and I have my own cultural
essentialist cultural understanding of human rights. And I reject everything because it comes from the
west. And he actually had a chance to interact with him, he really said, No, I know, this is a danger. I'm
not talking about that I would like human rights to be more of a cross cultural dialogue, and invent a
35
really three multicultural approach that works with dialogue rather than oneness, you know, retreating
to sport of cultures that would resist, of course, human rights. And we can think about, you know, many,
many minutes of universalism versus cultural relativism, and we could spend three hours on this. It's a
huge one of the readings you had outlined as one of the big issues of human rights. And we may have
been in remains a big, big issues. And if you go today, I speak to some of my colleagues who are UN
special rapporteur on human rights or, or represent countries in the Human Rights Council. In the in the
corridor discussions between diplomats, especially at the Human Rights Council. There's a lot of that
right. One of the arguments that you've heard for a really, really long time, which I think is quite
debatable is, you know, arguments that were too culated it's interesting in terms of development, in
particular, by love, countries in the 70s 80s, up to the Nikkei, which were relatively authoritarian, and
they call themselves developmental states, we are developmental states, and here of South Korea in the
70s, Singapore, Indonesia, for example. And, of course, these countries were not really liberal in terms,
you know, they're very often quite authoritarian and political opposition with was quickly eliminated
some of these countries, and they were, you know, Western NGOs pointing fingers at these repressive
regimes. And today, of course, the big example is China. China is really the core of these debates. And
some of these countries are saying, well, you know, before pointing your finger at us, because we're,
you know, not very liberal, that we don't always respect when you call similar political rights. We have
our own cultural understanding of what human rights involves not only rights, but duties, communities,
there's a focus on sacrifice, and we're thinking about, you know, not just civil and political rights. One of
the countries that was a leading force, especially in Asia, in articulating this idea was Singapore, and
founder of Singapore, Lee Kuan Yew, in particular, came up with the idea of the Asian values in Asian
approach to human rights, which from, you know, some form of cultural perspective was different than
the western approach and should be, therefore, resisting all the international human rights, NGOs and
withdrawing and Universal Declaration and treaties that we've started to look at, to point the finger at
that. Okay. The problem with that is, of course, and China is an example today. What's the problem with
that? This just, what do you think, Mikey? That the problems with that kind of justifications? Yes.
What the countries say to defend this kind of, like resistant energy constantly is the fact that it's like
something like over delicacy of something that the West is spoiling our culture. The problem with this,
though, is this is often like in some countries, is excessive force and constant violation of human rights,
which is not okay, which, like I said earlier, and that is constantly, like, played on with a traditional car.
And that's not all accurate. So now in a lot of countries, like media, and journalists, and human rights
activists and like, even like organizations from the west are constantly being targeted. And that's not
okay.
Exactly. And you have that in love with so called illiberal democracies in Europe to you have some of
that going on, in India. Now, you have some of that, of course, in Russia, you know, some pretty much
everywhere. So we are at a time when he said the other day, you know, in which all of this, it can be this
cultural, the point is the cultural notion, which could have some, you know, read this, it's, I mean, it
36
seems interesting, but it can very often be used as a justification for for trampling on whites, too easy.
Okay, and it can be manipulated by some governments to justify their very repressive politics. But this
this question of, you know, relativism cultural, so that's, you know, that's one extreme example, but it's,
it's, it's something that, you know, is interesting, if you think about liberal democracies and their
approaches to human rights, if you compare France and the US, for example, in the US, freedom of
speech is like, sacrosanct right? To the points in which our DNA or the year was to Jewish founder of
Human Rights Watch, famously, in the US, famously in the, in the 1990s 1980s. Just to discuss this with
him once famously defended the rights of Neo Nazis to hold a demonstration in an American town
because he thought that it was a super important values to allow freedom of speech, okay.
In France or in Germany,
hate speech comes under scrutiny under penalty of law. Okay. Why? For historical reasons, right?
Because freedom of speech in Germany and France allowed for largely widespread anti semitic ideas to
you know, become part of the mainstream discourse. And we know the history so. So it's not just, you
know, some governments that are sort of justifying, you know, using cultural relativism to justify their
best advice. They are genuine debates in which you know, history and culture can show and explain
some differences in the approaches a country's Yeah, so,
you mentioned the example of guns. I remember studying about this and think it was a character
feature of the profits, which went live, which was a lot of controversy around words. Now, I want to ask
them something when we talk about the feeling of speed and strength. So now something like this, for
maybe people that like that, it would be extreme paper. But now, the way I met is that it was actually
like to put on the goggles.
Exactly, right. Not completely. Yeah, completely hypercritical. So. But this is there's been a huge debate
in front. I mean, you know, the interesting point about REITs, in general is that, you know, very often,
that REITs balance against each other, okay. And it's, it's both a strength, because you have to engage in
the debate, you know, how you weight, freedom of speech and expression versus the regulation of hate
speech, or classic many, many cases in many countries. And most of my colleagues spend their time
looking at these cases and preparing them. The point is to show that it's not often it's not always sort of,
you know, clear cut, there are genuine debates. And in France, in particular, a lot of human rights
scholars were actually, you know, divided up, it's, you know, which should weigh more, are we talking
here, in this case of, you know, you know, qualification of hate speech? Or are we talking about a
37
freedom of expression and the notion of the freedom of blasphemy, which in French history was
something that was, you know, a long struggle to be able to write something, or to do a caricature of the
king in front with a long struggle. So that was one of the arguments of why this was really hard to freeze,
you know, there was a difference between saying that and saying that concentration, concentration
camps never happened, which is often qualify this hate speech. So there was a, you know, the
substantive nature of what was what was what was at stake was what, you know, lawyers were
debating, but a lot of people, including myself, said, you know, that that is really, you know, on the
limits, and there was a lot of disagreements, but you know, from a political standpoint, you should be
seen as something quite critical. And a lot of resentment from actually personal organization, protecting
we're, you know, we're we're rightly trying to articulate that the, the legal sort of balancing of rights in
this space was not done properly. But there are some really interesting debates, I can send you some
elements about dissection, because it's really a question of balancing. The point here being, especially if
we compare, so this is France versus France, but if we compare countries, there might be Cultural
Historical explanations, under which you have sort of different approaches. But the cultural relativist
approach sort of, you know, as a whole, sometimes in Microsoft, my perspective, it seems to be
dangerous, because it's kind of a slippery slope. To say that, you know, this is against our own values,
we're going to we're going to resist any form of human rights scrutiny, and we're going to continue to
apply the liberal policy, okay. So, so what was meant to happen? Okay, so, I gave you a number of
articles to look at Article Three, everyone has a right to life liberties committee of persons. Article 22. So
those articles are those that which human rights scholars have been interpreting to play a part in how
we can think about the link between human rights and human rights, legal norms, and development,
write some some relations here. And article 22 is often thought about it talks about national effort and
international cooperation. It talks about economic, social and cultural rights, article 25, everyone has the
right to standard of living adequate for the health and well being of itself in Scotland, even food,
clothing, housing, medical care, unnecessary social services, and everyone's entitled to social
international order in which the rights and freedoms set forth in the Federation to realize so that's in the
Universal Declaration of Human Rights. The history of the Universal Declaration of Human Rights is but it
was just meant to be like, you know, an entree like it was just meant to sort of lists what all of the
traditions of the world aspire to in one UN General Assembly declaration. Does anyone who here has
taken a class in international law okay, what's the value in General of the UN assembly General
Assembly? Resolution in which does the declaration not a lot, right? The declaration what really matters
are essentially treaties, right, in which countries sign ratify a document and after which You have enough
countries signing and ratifying you actually have something that is legally binding.
But the Universal Declaration of Human Rights is still, despite that it was meant to be just preliminary to
what's going to happen next. Next, they were going to go back to do the commission and actually design
a much more detailed unified treaty, in which you will have all these rights explained article by article.
And that countries will then not just vote at the UN General Assembly, but actually would be asked to
sign and ratify until becomes binding international law but what happened? Why did I not have 94?
years?
38
Yes,
yes, the Cold War. Exactly. Exactly. Big, big disagreements, okay. If you look at the Soviet Constitution, at
the time, economic, social and cultural rights were actually in the Constitution, and people actually had
cultural rights, freedom of access to education to culture, education, that was a priority, where civil
political rights pretty much not there, whereas in the US on the country, very strong protection of the
freedom of speech, freedom of religion, consciousness, circulation, democratic rights, but in terms of,
you know, having a right to health care or education in the Constitution in the US, forget it. Okay,
because for a lot of scholars, or even in the US political context, those rights, we will discuss it with, you
know, could possibly lead to asking the states, essentially, to tax people in order to redistribute, that
would sound almost communist, like at the time, really, for a lot of us scholars, despite the fact that
actually Franklin Roosevelt made a declaration in which he called for the Bill of Rights, which included
social, economic, and so big, big disagreements between the Soviet camp, essentially, and the Western
camp. So it wasn't politically feasible. So what happened is that they had to wait until when, you know.
We have two covenants. Yeah, exactly. When do you know what 6666 There were signs that they came
into force 10 years later? 1976? Yes, that's what you remember. Because it took that many years for
enough country to sign on these two covenant is called the International Covenant for civil and political
rights in the international covenant for economic, social, cultural rights, you have them here. Okay. But
before we get to that what's important from a legal perspective, okay, technically here is that the
Universal Declaration of Human Rights between 1948 and 1976. So there were other instruments, we'll
get back to the idea that there was a regional human rights conventions. But in terms of the
international protection system, remember this idea that you have a revolution in which there are going
to be legally binding obligations through which states except to have their sovereignty breached, and
look at what they're doing to their own inhabitants become a matter of international scrutiny. Of that
between 1948 and 1976, there's sort of a gap. Okay. That what that explains why the Universal
Declaration of Human Rights is the most cited international human rights documents, right? Because for
a number of years, a lot of these you know, un mechanisms or NGOs or debates were, you know, there
was nothing really else. And there's this interesting doctrinal debates legal debate about because of the
fact that there was such a long gap. Some scholars have been suggesting that the either parts or even
according to some of my colleagues, the entire Universal Declaration of Human Rights, which have
acquired a specific legal status, what is that? What do you think it is? Those of you who've done
international law, international law, you have, you know, you don't really have a hierarchy of norms in
theory, but you do have, you know, you have UN Security Council Resolution, you have treaties
customary international law, what is customary international law?
All over the world. It is something that
39
exists. Yeah. So you have to have something to be considered customary international law. It's in the ICJ
standard, you have to have both. Practice and Opinio juris states practice of states have to actually
behave as if they are respecting this norm. And opinion juries is the second part is that they are
behaving in a way this would with the consciousness they think that they're actually applying or that
applies to them. Right. So if you have both of these things, and then famous cases and international law
that talks about this, if you have both of these, these things, states actually abiding by a norm, that
torture is forbidden, for example, and with the idea that they're doing this, not because they just want
to, but because it's an international norm, then you have customary international law. And I'm just going
to finish by saying this is important here. Why?
Because
and so there's a debate, you know, some some suggested parts of the Universal Declaration of Human
Rights because they relate to another category in international law, which is called Joost projects, by
countering norms of international sort of superior norms. They belong to customary international law.
So even if there wasn't a treaty, they're applicable, they were applicable directly, provision for torture,
for example. But other scholars consider the entire human rights into the Universal Declaration of
Human Rights belongs to the category of customary international law. Human Rights Committee isn't
pushing for the recognition that the air got on this status of most of the human rights, Universal
Declaration of Human Rights. We don't need to know the details here. Because the point is, if the
Universal Declaration of Human Rights is recognized, or the argument by many of my colleagues using
these articles, this is why they get here, the all of those is that customary international law is meant to
be applicable to whom? Only states. Yes, so the idea is that customary international law, the theory is,
this is where the push will be applicable to stay, but also to non state actors. A lot of the cases we find in
international law, were about private security guards, for example, that were affiliated not directly with
the state, but actually committing to, you know, torture or crimes against humanity. But here, very
importantly, the idea, the push, so it's not a consensus. It's not been agreed by everyone. But I'm just
laying out the argument. The argument is to say, the Universal Declaration of Human Rights in its
entirely its entirety is are the customership customary international law. Therefore, it should be
applicable to two important categories of actors, which have a role to play in our story of development,
first, international organizations, the World Bank, the IMF. And Margot Solomon is a professor at the LSE
wrote an entire book on how international financial institutions such as the World Bank and the IMF,
under customary law should be obliged by what's in the Universal Declaration of Human Rights. Another
really important set of actors, which under this argument, remember, it's an argument that
transnational corporations, right, yeah, yeah, transnational corporations should be directly if we follow
this, you know, it's a very, it's a bit of a convoluted legal argument should be obliged. By buying the
Universal Declaration of Human Rights. We'll have an entire session which will discuss what's called
40
Business and Human Rights, which is a new field. But that's an argument that's there. It's resisted by
law, legal scholars, but just know, actually for now, that it's out there. So thank you very much. We will
carry on, I believe, tomorrow, or meetings more meaning to more so we'll carry on with this. And then
we'll get back to sort of development economics
Class 3
Okay. Good afternoon, everyone. Let us resume. Okay, so today we're going to do a few things. And
again, you may overlap a little bit with tomorrow's session, but we will have a few sessions in which we
have more than just an hour and a half. So we will be able to catch up with the we don't finish today. So
today, we'll continue to look at the very, very basic overview of human rights in their legal positivist
outlook. I will also give you an introduction to some of the critical perspective, we already discussed
yesterday, the question of universality of human rights, which is an important critique that is addressed
both by states but also by a lot of actors. That's one that we will, we will look at some of the credit
critiques against human rights and in particular, debates around economic, social and cultural rights,
which have a lot to do with some of the issues we're focusing on in this class. Race to health care,
education, housing, for example. And I will actually send you a little memo that will summarize a little bit
what I'm going to talk about on that. And then we will begin to sort of focus on both poverty and
inequality, I will give you some figures a couple of ways to think about and debates that have happened
about the measurements in particular and the trends in terms of measuring economic poverty and
economic inequality. And then we will begin hopefully, to discuss and I will ask you guys to discuss it was
based on today's reading, in particular, whether one can think about poverty, income poverty as as both
the human rights issue, which is one question and second violation of human rights, which, as future
lawyers, you know, might be, of course, a different thing. So we'll begin to discuss this. Okay. So
yesterday, I mentioned how human rights at least in the way they appeared in the realm of international
law. After World War Two, just can sense it really was thought of as a real revolution in international law
and anti sovereignty revolution. So they were really an integral into state sovereignty, and the positivism
of international law and law in general, that was really the forefront of how everyone thought about
international law. So there's a real revolution here, that happens. And we talked about the Universal
Declaration of Human Rights. And they gave you two ways to answer the book, one very debated
interpretation as to whether the Universal Declaration of Human Rights or parts of it might be
interpreted, and lots of my colleagues firsthand. Bill Chavez just wrote a book about the customary
international law of human rights that came out actually last year that made strong arguments that non
state actors you know, themselves including operations, for instance, could be subjects and subjects
that are part of human waste. Specifically internet, the Universal Declaration of Human Rights. These
have been the mechanism of customary international law. So we can't go into the detail of that debate,
but know that it's, of course, out there. So
41
how does it actually manifests itself, so you have the Universal Declaration of Human Rights, and you
now have at the international level, a number of human rights instruments, they're all here, I'm not
going to go into the detail of all of them. An important one against racial discrimination that happened
actually, before the two main covenants that we already began to discuss yesterday. But you remember
the idea that the Universal Declaration of Human Rights was just the UN General Assembly declaration
was meant to become a treaty, but because of political context, they were separated into two different
main covenants. And those are the acronyms that we'll use very often in this class, the ICCPR, the
International Covenant on Civil and Political Rights will look very quickly at some of the rights which
includes data, which is largely looks a little bit like a lot of the civil and political rights. We have, for
example, in the US Constitution, and the International Covenant on Economic, Social, and Cultural rights,
which, you know, there's more signatories of the ICCPR than the icescr, the US famously signed but
never ratified. That one. See, dA is, of course, really important. It has really interesting elements,
innovative elements of international law, the convention, the Elimination of All Forms of Discrimination
Against Women, character convention against torture, torture, and other cruel, inhuman, or degrading
treatment or punishment. The Convention on the Rights of the Child is CRC 1985, which is the most
widely signed and ratified human rights treaty in the world, the International Convention on protection
of the rights of all migrant workers and members of the families, an international dimension to the
protection of all persons from enforced disappearance and sort of the newest one, which has a lot of
innovative monitoring processes included in the confession itself, on the rights of persons with disability.
So here, you have, you know, another way to look at this. And this time, the slides are on the Mughals,
and we can have a look at it. Okay, but what's important to know is that this universal declaration of
human rights and the ICCPR and the icescr jointly are often known as sort of, you know, the, the Bill of
Rights of human rights, you want sort of the main foundational instruments, and each of the other ones
being slightly more specialized. Okay. So the International Bill of Human Rights will be here. And we
began to discuss for a moment where these optional protocols are, but ignore them for the moment.
And just remember this notion. Okay, so how does it work? For those who've never taken an
international law, it's really disgusting and many commissions by diplomats and jurists, and has to be
adopted and signed on by states. And it's only until enough states have ratified the treaty that the treaty
comes into force, the treaty is a bit like a contract. And for many of these international human rights
conventions, you have to wait until a number of countries actually ratified the treaty for the country to
be legally binding. And from that moment, states have given a little part of their sovereignty. Then they
treat their own the inhabitants of their territory with regards to economic, social, cultural rights, the
child depending on what they signed on, how does the ratification usually happen? Let's say in a liberal
democracy, where does it have
the same?
42
Part of the statement? Does the signature there ratification Yes. Exactly right. But in many other
countries, it's the same person. There is no legislative or there's, there's no so but in theory, you know,
this is why in the US, for example, the US signed the ICP SCR, but it was never ratified by the US Senate.
It's a two step mechanism. Now, all of these convention might look very nice on paper, but you may ask,
how are they implemented, how I made it forced? And though of course, it's something that we will
obviously discuss within this class. As you know, how affected is international law in general, and in
particular international human rights law, we only have to open the radio on the internet to see that
there are human rights violations everywhere all the time. Okay, and one lingering questions that you
know what human rights Special Rapporteur or international law scholars always have to answer from
very impatient activists? Like, why the hell? Are we doing this? Why these? These are the sorts of things
really work on the ground? And the answer, generally, to cut the story short is, you know, whether you
believe the system is that it's protracted sometimes with a lot of obstacles. But in the long run, there are
empirical studies that are trying to show that actually can have an impact on the right, and I will discuss
exactly how that may happen. But the answer is often one in which, you know, it's not always
immediate, essentially, international law is there that there is no international police that will need to
become, you know, to slap faces, slap space on their on their racist, they haven't done it. But there are,
however, monitoring mechanisms. And what's important to remember is that there are really
interesting empirical studies from sociologists and human rights scholars, Ryan Goodman, interesting
work showing that all of what I'm going to talk about involves people representing their states in fall in
front of different bodies in Geneva very often. And those representatives don't like to be told that
they're not doing the right thing by the other states, or by experts in these monitoring bodies. Right.
And so even sort of psychologically or cognitively, or from the perspective of behavioral behavioral
science, you can see that, you know, the these mechanisms, even if they don't seem to bite immediately
can actually have an impact that it can Ryan Goodman is a really interesting author writing about this,
we're not had to wait another one, writing in slightly different directions. So Okay, the first body and you
hear a lot about this body in the news is the Human Rights Council. Mission, the Human Rights Councils
is a political body. It's an inter governmental body, in which you have 40 state representatives, those are
diplomats, okay. The states are elected by the UN General Assembly, UN General Assembly, every
independent state has one vote. And they're elected for three years. And very often, you see, you know,
Well, recently, Saudi Arabia has been elected as a country within its region that has different number of
seats, according to different regions, depending on how many people in this region. So it's all calculated.
But there are lots of diplomatic discussions. And sometimes, some countries are elected to sit on the
Human Rights Council and a lot of other countries, including, of course, here in Israel, are very upset,
because there was they're going to say, well, this is not a human rights abiding country, or they're going
to think they're going to point their finger at me rather than other countries. So very political. And they
do a number of things, they can they receive reports, they can sometimes launch inquiry, as in recent
conflicts, but an innovative process, which is also very slow to begin to move, it was in what's called the
Universal Periodic Review. Every four years, the state is supposed to come in front of the Human Rights
Council, which sits in Geneva, and is supposed to say, to the diplomats who are returning the room,
what they've done in terms of realizing the obligations on the various treaties, all the all the various
treaties, which are listed, the state might have signed or ratified on some of them or all of them, and
they have to sort of report it in his
43
face don't often really do it, in that it's a mechanism that exists since 2006. It's not always efficient
states, delay it, but slowly and surely, there is a moment in which especially local civil society can push
the status to Europe, you're up, it's your turn to report. And if you don't do it, right, we're going to go
into the press, and we're going to advocate to wrap it. So it becomes a moment in which states have to
look at what they've done. Have we actually implemented new laws? Have we financed a program
against domestic violence? Have we invested in health care education so that it doesn't discriminate
between different segments of the society or that it's gender? Positive, if you want, so there's a number
of things that states have to sort of show that they justified we created a new course, etcetera, etcetera.
So that's at the level of the human rights. So remember, that's the Human Rights Council. The other yes
Sure
for the moment, nothing Shame, shame. You know, again, people who are diplomats don't like to be
told, Hey, you're up, you're meant to do this two years ago, you still haven't done it. If there's a, you
know, free press and media on the on the country, a lot of advocates will say, hey, you know, the state
hasn't really produced anything yet, it's seems to be that they have something to hide. Again, this
literature shows that states just don't like to be changed by other things. This mechanism is a revolution
in that they are confronted by other states, and they have to justify what they're doing. So this is more
sort of a behavioral mechanism. But again, there's no, you know, the only sort of international police is
under Chapter Seven of UN Charter, this is the use of force for very specific reasons. If security
permanent Security Council Member doesn't veto it, it's very rare. But other than that, there is no you
know, suffer national police to enforce it. So you have to find other, that's what international law, it's
easy to find other leverages to the political advocacy shaming that will sort of nudge states to do that.
Another very important mechanism to monitor and this is specific to every single of the human rights
treaties I listed before, is what you call the human rights treaty bodies, that every treaty has a
committee that goes with it for the icescr. It's called the Committee on social, economic and cultural
rights for ICCPR. It's called the Human Rights Committee. Therefore, this is the Human Rights
Committee. And the one I mentioned before, was the Human Rights Council. So the Human Rights
Committee is not composed of diplomats representing the countries sitting in Geneva. It's composed of
experts, legal expert law professor, there are many colleagues who are sitting as independent experts,
they are elected. But they don't represent their country, their legal independent experts, and the same
Human Rights
Convention on the Rights of the Child is called the Committee on the Rights of the shop, etc, etc, etc.
Okay, and these are less diplomatic, less political, but they play an important role. It's a really important
leverage for human rights lawyers, in particular, in the following sense. Okay, what do they do? They can
do three things. So it depends on the convention, it's not always the same. But to summarize it, the first
thing they do, and it's a really important moment of advocacy, that's what some of you are interested in.
44
The first is to monitor the enforcement of this specific treat. So there is a Universal Periodic Review. But
there's also these treaty monitoring bodies, and every couple of years, advocates in the civil society will
know well, Israel is up for review by the committee for economic, social and cultural rights of France is
up for renewal by the Human Rights Committee, that will create a whole you know, I know because we,
the program that I, I work in a clinic, did you guys know what is the clinic here, we're always working
with NGOs, which are asking our students to read or prepare something that will help you know, again,
no itch, or push the states to actually see what they've done, or what they haven't done. So they had
status to report to these bodies, and the bodies, then pretty, pretty much look at what the state have
said. And they also will look when there is enough of it at what's called Shadow report shadow reports
or reports, which are very often drafted by civil society organizations amnesty or local Amnesty
International Human Rights Watch or local human rights NGO, sometimes with the help of clinics, for
example. And they will say, well, the states in terms of the International Covenant on Economic, Social
and Cultural Rights, say that it actually has developed a mechanism to make sure that there's more you
know, equal access to housing, there's a new procedure, etc. And then the shadow record will say, Well,
this procedure actually hasn't been funded. There's no visibility, it doesn't work, or it's actually
discriminatory in that way. So un independence to the people sitting on the legal independent experts
sitting on the committee's look and basically, give that recommendation say that you know, you've done
this really well you've progressed we can see this bow etc. But on this, you really haven't done your job.
And then the question again becomes, you know, what happens after that? And again, it really depends.
Some of the members of these committees are very savvy actually leaking stuff to the press, so that the
press will know that the UN, you know, a bunch of UN legal experts have condemned or have told
France or Israel or another country that they actually haven't really done anything, or they've done
something that's really wrong, etc. So that's an important moment of engagement of the states. The
second thing they do is to interpret some of the treaties are very so every international treaty, as many
of you probably know, is the legal language without hardcore negotiations between parties. You look if
you look at the cover, pepper aquatics, punch of the French word that is still used. But does that mean
the puppet preparatory meetings with regards to the adoption of any of the nine treaties that I tend to
use that I mentioned earlier, every comma, every word has been negotiated, step by step by
representatives of states and their international lawyers. So very often, you'll have a very strict
completed short article. And what the treaty monitoring body does is to interpret to say, this is exactly
what it's meant to give guidance to state the state sometimes from you know, what they paid, you
know, their colleagues 10 or 15 or 20 years ago sign on this treaty, and they don't actually know what
they have to do. So you have these general comments, which don't which are not binding, they don't
have a legal value per se, but they have interpreted value. And they're very often looked at, for
interpreted purposes by both international forums, regional courts or in domestic court. So it's
important to, to know that they do that. The one last thing that some not all of them, of the treaty
monitoring bodies do is to act like a quasi jurisdictional adjudicative body sort of quasi quote, no quotes.
But they can adjudicate individual complaints. So it's under certain conditions.
First of all, most of the time, the states have to not only sign and ratify the ICCPR, for example, the ICR,
they also have to sign on and ratify a separate tree, which is called an optional protocol. That Optional
Protocol basically say, because it's a treaty itself, it has to be signed and ratified by enough trips country
45
before it comes into force. And if it does, and states ratify both the Treaty and the Optional Protocol,
and if both are into force, then estates allows itself, basically, to be allows individuals within its
jurisdictions to go all the way up to these treaty monitoring bodies do expert and give the authority
lawyers and these committees to adjudicate individual tastes. Another possibility is it's not the actual
protocol is that states would actually like to make a declaration that relates to an article of a treaty to
which it's pointing. This is a case, for example, in Qatar Convention Against Torture, you will find all of
these elements very easily when you practice if you practice this or when you revise. It depends. And I'm
not going to go through the detail of all the optional protocol and important and interesting one, for our
purposes, this is the the 2008 Optional Protocol on the international economic social cultural rights. It
which entered into play was signed, open to signature in 2009. And it entered into force in 2013. On the
first case was against Spain for failure to design a procedure for foreclosure rent to allow for some
remedies for the foreclosure of mortgages with regards to the right deposit, that's just a detail. Okay. So
does anyone know it? You know, what are the conditions? First, you have to sign on the tree and the
optional protocol or give a reserve? What are the conditions that would allow an individual to actually if
all of this is done, go in front of these, you know, the Human Rights Committee for the committee for
Economic, Social and Cultural Rights Committee on the Rights of the Child? What do you think are the
steps that an individual has to take in order to revive them? Yes.
Right should not be most efficient
okay, yes, yes. Oh, these are Yes. So these and then yes, I think he also needs to exhaust things you have
to what's called exhaustion of local domestic remedies. You have first issue country asylum inhuman the
ICCPR you feel that your freedom of or the freedom of assembly, your circulation or your right to fair
trial has been violated, you first have to go to court in front of your to the you know, local first level
court in your country. And then possibly, if there is such a thing, you've got to appeal, and then
eventually you go to the highest possible quality Constitutional Court, High Court, whatever it's called in
the country. The reason for that is to allow time, but from from the from the reasoning of international
human rights law, this is to give a chance, essentially, for states to apply their obligations, because the
judiciary, including sometimes it takes the judiciary three steps, right. First Instance appeal is a way for
states to actually realize their obligations, human rights. Okay. Because the first time the judge will say
no, no, there's actually no no, no violation of the right to fair trial. And eventually that the court on the
highest, the gentleman high school said there is actually a violation. And by doing so the state, even if it
took three steps has actually realized its obligation under the international law. So that's really the the
idea allows states to remedy first. Okay. And then there are technical questions interesting, if you're into
the triangle questions, and I had lots of discussions with this about with Sara treatment, for example,
who was sitting on the Human Rights Committee, treaty monitoring body of the ICCPR, American
scholar. And there are questions as to, we'll see in a second, and many of you already know that there
are also regional human rights systems, right. So for reasons of political or cultural proximity, a lot of
regions around the world have wanted to complete this international system by doing an other
46
international system but only applicable to regions. And then the question is, technically, might be,
remember, when I passed the bar exam, there was a question I had to answer. It depends. Can you you
know, what happens if you if you go all the way up to exhaustion of the domestic remedy, and then you
go to the European Court of Human Rights? Can you go anywhere further and go somewhere after?
Okay, so technically, you have to choose the general jurisprudence. I mean, the case law that is applies,
and you can't go both to regional court system and to the human rights treaty monitoring bodies have
to go to choose one or the other. And if you go to the European Court, for example, in case of Europe,
and you have a negative decisions, you then can go to the Human Rights Committee, for example. But
the Human Rights Committee in particular, which monitors the ICCPR, has been very liberal in its
interpretation. And sometimes it accepted petitions by plaintiffs and the lawyers who actually lodge the
complaints after exhausting local domestic remedies in front of the European courts. And at the same
time, with a slightly different procedural angle or slightly different than that. i The Human Rights
Committee, and the Human Rights Committee has been very open about saying, well, it's not exactly the
same procedure, the substantive demand is slightly different. And they accepted to hear the court the
case. And we've had this in France, for example, with regards to the prohibition on Facebook. cases in
which lead to different procedures so long at the same time. Okay. Another important Yes.
walking tours
I mean, it's a it's a very good question, though states would not necessarily in theory would have to
protect their, their, their, their sovereign power to do anything, is again, the long standing push by a lot
of human rights actors. The Pew pew pew few, a few states that like to take the lead to show the
example Spain was one of the first country to ratify why, and to push a case in front of the option
because there was a very, there was a very good NGO that actually I happen to work with at the time
that was really, really active in sort of shaming or trying to nudge the states to show that, you know,
they have, especially sometimes the new governments or the new government is elected. First thing it
does, I'm going to ratify the international human rights convention, that my predecessor was a human
rights violator and everything. So it's very often sort of a political game, but also the pressure of civil
society. And then once the state has done it, then it won't look your neighbors done it. Why don't you
do it. So it's that kind of pressure, because otherwise, and this is why some states they just don't want.
Another more cynical way, is that some states will do it, because there's slightly pressure on them, for
example, if they want to receive financial aid, or they want to receive loans for international
international financial institutions to show that they're good students, or good clients, but with the idea
that in any case, whatever happens with Georgia Kotori mechanisms, they're not reports. And, you
know, it's not necessarily going to affect their behavior. So that's the more cynical way to think about it.
But it's a great question. Special Procedures. So you have they used to be quite I don't know, if they still
are, if you talk to people who are doing this now, they won't say but they will call the crown jewel of the
monitoring system at the level of the international system is what's called the UN Special Rapporteur. So
they can be nominated by the UN General Assembly of the UN Human Rights Council. And you have the
47
UN UN Special Rapporteur on many things, one on the right to help you have the right to have one on
extra judicial killing killings, you have one on extreme poverty and human rights on trafficking. So you
have many, so these are also legal scholars independently assigned for mandates which are renewable
once. For the committee's Sorry, I forgot to mention that legal scholars are sitting, usually for four years
also renewable ones. The mandates, they have to sort of be elected by countries which was, you know,
in the General Assembly or the Human Rights Council that they have to propose, you know, vision for
the mandate. And what did they do, they can often be quite effective because they're there one woman
or one man show, with some help. For example, in our clinic, we have two mandates the UN special
housing and property and extreme poverty and human rights. So they do reports and they choose
dramatics that the reports in front of the UN General Assembly for the Human Rights Council today,
they given you and know, what the right to housing mean, or what are the important issues for the
moment. For example, students are working on the intersection between the rights housing and
migrations related to climate change, for that's one example.
So they do thematic reports they do country visits, country visits are by Special Rapporteur can be also a
really important moment of engagement and advocacy. Because local NGOs, civil society, you know, and
especially some of the UN Special Operators are really savvy, they know how to use the press, they
know how to leak information. A couple of years ago, the UN Special Rapporteur on poverty and human
rights, Philip Alston was at NYU came to the UK, and pretty much told the UK that it was really with
austerity measure was really bashing completely, you know, violating its many human rights obligations
with regards to the International Covenant on Economic, Social and Cultural Rights by not doing enough
for poor children, for example, in terms of education, so this was really at the frontline of The Guardian,
every big impact we get politically, the other thing they do is what's called individual communications
and purchase actions. So NGOs coalition's of NGOs may alert, the UN Special Rapporteur with a very
urgent issue, someone is about to be killed, or the fact that there is a, you know, a rise of prices we
worked with a couple of years ago, a huge rise up rise of prices and electricity in the country. And this is
gives an occasion in a very flexible and formal way for the UN Special Rapporteur to write a letter to the
government and try to get a quick response, rather than wait through, you know, people going to court
123 levels and then eventually going up. So this is an informal and it's sometimes referred to as join
what's called the communication together. So we have the rapporteur on the rights of housing, food
together and they try to sometimes evicted in the process. It's supposed to be confidential for a number
of months in order to get quick response. Yes.
There are some issues that I'm sure they be alert As we talk about China, and the concentration camps,
and societies with markets which are collapsing. So, like, how does this work? In fact? While we say that
they are ordering x rayed right now, does this actually work?
48
I mean, again, the question is, you know, there's two ways to, to answer one is that, you know, it really
depends on the countries, for example, a lot of what the record does have to do is to negotiate the
possibility of a country visit. And a lot of countries China is a month in which you sometimes accept,
depending on what right but very often, they will refuse any kind of visits, right point blank, and there's
nothing you can do. So the reporters are trying to sort of, you know, get pushed their way into these.
And these communications, it's a relatively new procedure, very often domain, there have been many,
many, many communications written to the government of China, and particularly with with reluctance
to do your situation. And, you know, the, you know, the government response doesn't respond at all. So
you can't push it to do or you will deny the allegations, they will say, you know, there's nothing like this
happening. And this is part of the, you know, the hard labor of being a human rights advocate at the
level of the UN, sometimes states just, you know, denied or just won't do it. So, so it's part of the
system, and it's part of sometimes there are, you know, leverage points for advocacy. This is not a good
example, because obviously, it hasn't worked. But in other cases sometimes, you know, one has to be
completely cynical about the fact that didn't work for extrajudicial killings. For example, the UN Special
Rapporteur on extrajudicial killing, managed not in the case of China.
It's most interesting.
When, actually, when,
so, from my perspective, you'll see what the case study of actually an advocacy work that I've been
engaged in myself, when I was a student. This is not the only answer, right? Advocacy can be thought
about in many, many different ways within sort of more grassroots, community based way, and you can
have things that move at a slower scale. But I wouldn't dismiss this completion. Again, you know, when
we talk about, you know, enforced disappearances or extrajudicial killings, this has actually saved people
from dying, literally, quite often and very often under the scenes, because it's communication
procedures are so supposed to be anonymous. And you know, the UN Special Rapporteur is not going to
say, Hey, I've saved that person, because otherwise they will cut the channels of communication with
the state. So, there are many instances in which actually, it plays a role. Or the, you know, the Human
Rights Committee, sometimes when it condemns France, it has, for example, many times with regards to
the conditions of imprisonment, for less than like it actually change conditions of imprisonment took a
while. So this is not just for show very. Also, you know, and if you look at what happened, you know,
what, of course, 20 years, there have been some progress, human rights lawyers and UN Special
Rapporteur has become more and more savvy about articulating what they have what they can do
about opening channels of communications with civil society or with states. So the picture is, you know,
it's not that bleak, I would say, but I think from my perspective, if you only think about human rights
49
advocacy, in these terms, you know, obviously, it's going to be frustrating, because a lot of this doesn't
seem to work fast enough or, or at all, but there are openings actually.
If I save this person actually think that. So now, is there a way that this is actually a bad thing? Is there
any transparency?
Sure, sure. I mean, there is, you know, their communications are eventually after six months, I think
they're actually published in the UN General Assembly report. So countries can actually see what's been
done, they can see the exchanges and sometimes exchange the last exchange will be the UN special
offer, there will be like, Thank you for freeing up this person, or, you know, thank you for answering
your call, so they can actually see, but, you know, sometimes they prefer to keep the secrecy as long as
possible. And some documents are sort of shared more anonymously with it, you know, the diplomats
who are there could then come to lessons. So there is you know, there is some of that and, you know, at
the end of the day, what matters is that lives have been saved and things happen on the ground and the
local people who have you know, benefited from it know what the local To this no issue. So. So that's
that's, you know, an answer your question that I completely understand where it comes from the
regional framework. So as I said, many regions have decided to sort of design their own regional system,
I won't go into the detail of it now, last time, the most, the oldest one and the one that seems to be the
better functioning one. And I say better with coma, we talked about how we judge things, we have to be
cautious but European Convention for the Protection of human rights and fundamental freedoms, the
Rome convention of 1950 actually establishes, of course, like a real court who sits in Strasbourg. That
convention includes mostly civil and political rights, although there are no additional documents that
include economic, social and cultural rights. The courts also there's no European police to apply. But in,
in a lot of countries, when there's a decision by the European Court of Human Rights, and it is
emphasized in the media or elsewhere, it doesn't look good. And very often, countries by country, for
example, tense overtime to apply the positions of the courts, okay? So they're meant to actually, in
theory, be legally binding. And the general the general philosophy of this courts, which is they also try to
remain legitimate, and you have a lot of countries nowadays, which are in the UK and other liberal
democracies, are not very happy with the courts of the court always has to calculate its political
legitimacy. And the way it's done this, if you talk to judges on that court has been to maintain, you
know, a space for the states and trust the states, when they say we're limiting our rights, because of
public health reasons for COVID, for example, or for national security or for other reasons. So there's a
margin of interpretation that is left relatively, quite strongly open to states, because of, you know, their
supposedly democratic nature. This is one thing is important, that has nothing to do with the European
Union. This is related to the Council of Europe. So it includes states, which are not members of the
European Union for those of you interested in difference Yes. Oh
50
it's a good question. And because of the, you know, the evolution and the level of the European Union,
there are, you know, cases now at the level of the sort of Justice of the European Union, which relates to
human rights, and there's a bit of a, you know, so it's, first of all, it's not the same country that they said,
and a lot of cases about the convention of protection to rights were against, you know, Turkey or Russia,
but also France and Spain, etc. We're not always talking about the same countries. But there are very
interesting to try No, you know, discussions as to whether, you know, one would actually have an impact
on the other, other more sort of, you know, positive outlooks will say, well, there's more dialogue,
actually. And, you know, sometimes a court will refer to another courts, you know, interpretation. And
there's, there's a strong effort to actually have the judges on both courts dialogue rather than to
compete with each other. But there is sometimes a little bit of an overlap, the procedures are not
exactly the same. The standing in front of the court is not exactly the same. But I wouldn't say that has
actually I think the most the most pressing danger for that system is not so much the existence of a
charter and of the courts. Court of Justice of the European Union, stability to deal with human rights is
more the pressure from liberal policies, which are actually wanting to get the countries out. That's more
of a threat, I would say. The American Convention on Human Rights also have the American Declaration
on Human Rights. The US is not party to the American Convention of Human Rights. It has a two tier
system, you have a permission first. And then if your state has signed and ratified the American back the
Inter American Convention of Human Rights then there is a court which sits in San Jose, Costa Rica who
doesn't sit permanently. And that is a very interesting system itself, a very progressive judgments. Very
interesting, long, you know, opinions by judges talking about now you have increasingly very interesting
environmental and indigenous rights cases, but also very progressive. So in this, you know, because a lot
of countries in the region of the Americas were less democratic than in Europe versus Western Europe.
They There was more of a tendency for the system to be, you know, quite quite resisting to states
arguments about the fact that they were. Right. So that was a push we, we sometimes has created some
backlash. Nationally, for example, there was a really big push into American courts to use a gender
perspective and Gender and Women's Rights forcefully. And you had some times domestically quite a
backlash in Colombia, for example, a few years ago, there was a strong social movement, a conservative
social movement and for saying that, essentially, the Inter American Court of Human Rights was trying
to impose gender ideology and Colombian society in the resistance because it came from, you know,
from this Court, which is out there, the African charter and Human and People's Rights of differential
charter 98. One also has permission in court, which is really making progress. It's still a system that is not
new, fully operating, although you have interesting cases that have been happening. And they're really
interesting guests the other day talking about it, it has a number of rights, because spiky different, that
includes notions of self determination, people's rights, some form of recognition of customary rights,
advice related to emotional development, and then to other systems, which at this moment on not what
most human rights lawyers would say, they're not really active as monitoring systems. Whereas the
other three are, as the association of South Eastern Asian nations Intergovernmental Commission on
Human Rights, which doesn't include a lot of Civil and Political Rights, and it's relatively limited in terms
of being diplomats, you know, not not really educating cases or not even sort of making pointing out
fingers. Enough, it was this system was deprived this leader, Myanmar situation has not been really
effective. And there is since 2014, our Charter on Human Rights, and there's now a project to do in our
Court on Human Rights, which is still not being, you know, signed and ratified by that country to actually
effectively work. This is under the Council of the Arab League. So
51
different. There's many different, you know, committees monitoring bodies, and here that you don't
have to notice at all by heart, because you can still find information up but you can see here, those who
can adjudicate complaints, meaning there's either an Optional Protocol, or reservation tree, most of
them do the independent monitoring, reading, sometimes state visits, and many of them do the state
reports and the shadow reports. So you can see here sort of the overlap of all of what kind of stay due to
realize its obligations. Well, it can change its constitution and countries of Dalits post apartheid, South
Africa, really designing constitution, which was inspired by many of these international treaties included
civil, political, economic, social and cultural rights, they can design national laws, regulations, policies,
they can, of course, you know, enforce a higher budget for some programs. And as I said, court
judgments and the fact that you will have procedure, including appeal deals are definitely part of that, in
terms of the I see CPR all the time to sort of cope with all of it, but it can the ICCPR, which today has 169
parties has a number of familiar rights, which are in it. So if you're looking for these rights, Article Six of
the International Covenant for civil political rights provides a no one shall be arbitrary, lead the fight of
life and there's an additional protocol which gives the conditions under which death penalty might be
acceptable adopts article seven very important provision of torture and cruel, inhuman and degrading
treatments. Articles 14 and 15 gives the procedural rights of defendant criminal trials. And Article Nine
prohibits arbitrary detention. These are some of the classic rights that you can find here and there's a
sort of a three tier system. Most rights allow from some limitations, states can limit the rights to the
freedom of circulation, for example, if there's a public health emergency, and many of us have lived
through this with COVID some rights are a little bit more difficult for the state to ignore it There are the
irrigation to the application of right but only in tap in terms of emergency. So this is also, you know, this
category under which a lot of the the freedoms that were curtailed during COVID educators was
classified, the emergency has to be definite, it has to be measured with a beginning and an end, it has to
be authorized by Parliament. So there's a number of limitations. And there are some rights essentially,
which supposedly can never be delegated. The provision for torture, for example, is something that they
can never justify, under any kind of national emergency or national security, according to that tweet. In
terms of economic, social and cultural rights, this year is important. This, again, is the result of a
compromise in the negotiation of those lorries not on the tree. So the idea is that economic social costs
of separately civil and political rights, the obligations of states are supposed to be immediate. You have
to refrain from refraining people to circulate freely, we have to refrain from refraining people's freedom
of consciousness, you have to refrain from immediate and it's direct, when the idea of economic social
and cultural rights are to to help engage in this is the way he was particularly
states undertake to take steps and take steps can be national laws, cooperation with a lot of other
states, looking at your taxation system to see if it works better international assistance, they have to
take steps to the maximum of their available resources. So there's a recognition that maybe in France to
realize everyone's access to health care, you think about it the same, in this case, it might be actually
easier. Why? Because France, perhaps us if you compare it with I don't know, I don't like to take
examples. But you know, take the Central African Republic, the resources, the budgetary resources, of
that states are quite low. And the state can say, well, you know, I will do my best to realize everyone's
52
article 12, of the icescr, highest attainable standard of health care, to the best of my resources, because
you can't really ask me to do the same thing, as you know, universally publicly funded, were you well
functioning system, etc, say France will be okay. And the articulation of the law of economic social life is
that states have to progressively that commit every step to progressively realize the right to housing,
health care for patients, according to their maximum available resources. Very importantly, this, I didn't
even mention it. But obviously, all of these bodies of law that we talked about, it has importantly, a non
discrimination aspect to it, it's all these rights are available in these treaties, and HR are accessible to all
categories of humans, regardless of their ethnicity, gender, etc. So states have to do things. And this is
really important in a non discriminatory way, they have to design a health system that is accessible to
everyone as much as possible. And especially that doesn't discriminate between one ethnic group and
another or between men and women, for example. So that's the way it is constructed. And a lot of
advocates are sometimes frustrated by this, because this years, not available resources. If you think
about it, even if legally, you can give an argument to the state say, Well, those are my maximum
available resources, I can't do that I don't have enough. And that is something that over the last 40
years, lawyers, human rights lawyers in the field of economic and social rights have been trying to work
around, make this operational clear as to what the stakes are and how when they can or when they
can't pull out. We will discuss this more in detail. So this is an example of, you know, the rights to food.
We don't have the time to go in now. But the way a lot of human rights committees member the
monitoring bodies and committees have been designed and interpreted in their general comments. For
example, with regards to the right to food, there's usually a three prong obligation, which is the notion
that states have to respect basically it's a negative of obligation not to interfere with the, you know, for
example, access to food, the notion of the obligation to protect the state has an obligation to protect
with regards to economic, social and cultural rights, in that it has to put into place legislation or
regulation, that will make sure that one individual party will not harm the other corporation won't be
able to pollute in a way that will, for example, you know, affect a lot of people we will have to put into
place a number of regulation in order that people another prime example of the right food, and finally,
the obligation to fulfill in which he tell everyone that they have right but also in the last resorts, maybe
have to take money out of his pocket and provide directly access to we will we will get back to this, but I
just wanted to give you now, a general sense, okay. So, briefly, I will send you a memo about this. There
are a number of critiques about human rights, and in particular with regards to economic, social and
cultural rights, remember, economic, social and cultural rights is the idea of the obligation to
progressively realize according to the maximum available resources. So for some scholars,
lawyers, philosophers, political philosophers, there was a real question as to whether these rights are
really rights and this is a totally we get back to this are there are simply moral obligations or moral
aspirations. And so you have a number of scholars, including libertarian approaches to human rights, or
to law that suggests that these are you know, these are aspirations but they do not we participate in
tuna, despite the fact that there is a treaty here. And there's lots of domestic companies constitutions,
South Africa, for example, that apply this in there that have this in the Constitution. It's not really long,
in some countries actually have including social economic rights that has rights in the Constitution, but
as what's called Directive Principles of state policy in the other example, so long term objectives, they're
in the constitutions, but they're not meant to be justiciable rights, justiciable meaning that you can
53
actually claim in front of the judge and ask the judge to adjudicate the case against the states in that has
violated directly the obligation. Okay, so there's a lot of debate around this. The arguments behind
those are the following. One of them is called the what's called the counter majoritarian argument. So
the counter majoritarian argument is, I think, not that complicated to, to think about. So the argument
was the following, let's say I gave the example are your France and Central African Republic. Okay. That
same example of France. If a state decides to actually really develop a welfare state that will make
accessible health care publicly and universal, meaning everyone can have access to health care. The
argument was that well, this is going to cost money. Right. And which is the body, the branch of the
state that normally decides on the allocation of resources? Where does that normally happen? In a
liberal democracy, the parliament, exactly. So the idea here by people opposing the notion that these
rights or real life would be saved well, and as rights that would be justiciable is going, it would be like,
Well, you can't really go to court and ask a judge to tell the government that it has to take away from its
army or just raise more taxes in order to fund a universally accessible public system, because that is not
the role of the parliament, under the theory of the separation of power, right? The judiciary is not
meant to do this. The executive propose proposes a budget and the parliament representing the people
boats, the budget is not from one judge to decide this will be anti democratic, this will be counter
majoritarian. The budget, the allocation of resources should be done by the parliament. Okay. Just the
other argument about that is not just about counter majoritarian. It's about the idea that not only
judges are not legitimate democratically doing so They're not equipped for it, they don't have the
competence of doing it. They don't know how to do cost benefit analysis. They don't know. They don't
know, they don't know how to do policy. And in fact, a lot of judges are reluctant to do it. They don't feel
at ease when it comes to, you know, allocating social policy. So yeah, it was a hell of
a fish, I'm just giving you the argument, which was the dominant argument for a really long time, you
still have some of my colleagues arguing this, there was another.
I understand that he's also not competent to go away country. But it's a two way and one legacy
application, then that entire question, because then what's the use of the judiciary?
I mean, you know, that's been the counter argument. You know, it's been, you know, that the idea that,
you know, it's part of the democratic process, that you can have an accountability measure in which
citizens can ask the judge to push these things. So there's been exactly arguments with regards to that.
So but if we go back to both of your points, which were excellent. This is the way the argument has been
countered, okay. If you take the rights to a fair trial, which is in the International Covenant on Civil and
Political Rights, what does it take? For a poor person? I'm talking about income, to have a poor to have
to have a fair trial. What does that person need? A lawyer, first of all, and if that person cannot afford to
54
have a lawyer, you have what's called Legal Aid, you have not all but many countries. What is legal aid,
Legal Aid is taxes that are going to the state budget and which are allocated directly to pay for these
lawyers. There's also money that has to go into building courthouses into training. etc. So the point is,
not only is it a, you know, democratically logical thing to do, and accountability measure, but also we
can't categorize just these rights as necessarily costing money. Okay, all rights and now that the
mainstream doc train, the train, our interpretation of all human rights, is that all rights can be quantified
under the three the tripartite obligation that states have to respect, protect and fulfill human rights. And
the entire work of scholars in the field of Economic, Social and Cultural Rights has been to try to show
that the idea of states having to fulfill the right to health or fulfill the right to education is really sort of a
last resort. But then many of the needs of economic, social and cultural rights. And many of the cases
that you've seen in domestic or regional cases is actually about that. It is we asking states to refrain from
discriminating it's a negative obligation doesn't cost them money. There's sometimes discrimination in
housing policies, in food stamps, in educational policies, or sometimes states, for example, have, you
know, you know, reframe the possibility of the distribution of free, freely accessible medication. And the
cases that I've gone about that's that, for example, in South African Treatment Action Campaign, which
I'll talk about during the class has been about basically asking the judge to tell the state that it should
respect its negative obligation. Remember, negative and limited positive or negative obligation not to
interfere with the distribution of resources, medication that is that we're already so this distinction,
which I pointed out to later between negative and positive rights philosophically, of course, that exists
and even legally, but the long standing word of the treaty monitoring bodies are many of my colleagues
have been to try to show that it's not clear cost. It's not like poverty, economic, social and cultural rights
are always about resources very often they are but not often, and that civil and political rights are just
about sort of a you know, injunctions of states to respect human rights and stop interfere. It's you know,
it can be understood in in many different ways. Yes, yes, of course,
like the respective countries like India or like, a lot of places in Africa like this action, shortage of video
products, and they found that so people, for instance, like I read a specific study on the eight months
That will not be sold, when the state has been a publication, that Shipe essentially is detrimental and
worse, the failure to write, especially in the country. So this, again, coming back through the faculties or
take care of
itself. Well, actually, if you look at many of the cases of Treatment Action Campaign case in South Africa
is a really interesting example, because you had a whole preparatory work by NGOs and social
movements actually make the drugs available for mother to child transmission of age, freely accessible
and not complicated, like the proper drug, with the participation of Doctors Without Borders, for
example, but some of the arguments of the South African government, we're precisely the reason we're
doing this, it's not because we don't believe it's science, which is actually one of the problem parts of
the government is we want to regulate, we want to protect, because we're not sure that these drugs
actually work, or that those are trying to market our citizens. So you have these kinds of argument, and,
55
you know, you have to go on a case by case, you know, examination of the arguments, but I wouldn't
say that in general, because there is this distinction, it's going to always affect negatively, you know,
countries in the south, and in some of the decisions that you have, or even in some of the articulation of
human rights advocacy, there is, you know, sometime a push is actually for states to, you know, actually
invest, rather than, you know, not just, you know, not interfere, but So, the point here is that, that the
obligations with regard to economic social cultural rights are more open, and can be interpreted in both
negative and positive obligation, depending on the case. Okay, the argument for a long time is that
economic, social, cultural was only about positive obligation to put money now with, you know, with the
limitations that you point out, which are interesting, but there's no recognition that it has to be looked
at case by case and that there's interesting arguments which have been made in the field of economics,
which provides that states are very often under the guise of these situations in which you're not sure,
for example, about recovering regulated enough, they're going to interfere in the distribution, or they
will do it in a way that is discriminatory for political reasons, right. So one region of India will get it and
the other region will not get under a very sort of shady argument. So I wouldn't say that it's, you know,
always going to negatively affect and I think that what's happened here, in opening the way we interpret
what are the state's obligation is, I think, a piece legally an interesting insight, in the case of South Africa
against a complete change of policy from the government through a case case with a social movement
that was backing it up very, very strong. Okay.
On the other hand,
another kind of critique, I'm sorry, I'm taking a bit longer participates in signup, and it's really important
because it's a crowning moment for the, for the course. There's another set of critiques which come
from different spectrum. Okay, so on one hand, some people were leaving the despite the aspirations,
and if you make those rights, it might be a slippery slope and appeal rights, because of counter
majoritarian arguments or, you know, justiciability competence. And we've seen that those have been
counted. They're also more on the left, I would say politically on the left, a lot of you know, social justice
activists who consider the human rights or exposition. We talked in the first class about a book called
not enough by Samuel Moines and OPI and Yale, we'll talk about how human rights work essentially
accommodating of neoliberal globalization, really going to the point here, too quickly, of course, but
there's a number of scholars There's a famous book called The Future of human life, the inventor of
vaccines in Indian, fantastic Indian scholar based in the UK wrote about how human rights are essentially
human rights, protecting property, individual property and liberty and security and causing human rights
for the market rather than for protecting marginalized groups. So there's a whole bunch of critiques
suggesting that you know, human rights are not really going far enough. Among those right those
critiques as the notion that human rights in general are what you would call liberal individualize and
formal one other proponents of this idea, one of the early proponents of the idea is Karl Marx, Karl Marx
wrote a book called The Jewish question, which talks about a lot of things, including what he called the
Jewish question. And he makes a distinction in this book about what he calls civic and formal rights,
56
essentially negative civil and political rights. And the fact that these rights are formalistic, that they deal
with the, you know, the individual in the states that they don't deal with, enough with the material well
being of people they don't deal with, only with education. And they also don't deal with private relations
between men and women, or, of course, for marks an employer and an employee. So they don't look
like what's happening materially, and what's happening in the private sphere. So the idea here is that
human rights and the way although we now know all these things about economic social rights, civil
respect, but for a really long time, so many reasons that human rights after human rights organizations
have started to the economic and social rights series, for a long time was mostly about the right to vote,
to fair trial, torture, but neglecting these rights, so even as we've just seen, questioning whether these
points are rights, and the proponents of this idea is Amartya Sen, Amartya Sen. Sen, Nobel Prize in
Economics did a really important work in this field, which we will look at. And his argument sort of was
very similar to the one that Marx made was the notion that he famously said, We cannot eat human
rights as a metaphor, right? What's the point of having the right to vote or the right to freedom of
circulation, if say, the right to vote, if you actually don't have enough food on this table to walk to the
voting booth, or if you can't write, so you can read, you can actually complete the progress. Right? So his
idea was, you know, one, you know, one is not enough, you need you need the other one, you need that
too, we need to look at health and education, for example. And the critique here is that you both are
interdependent. If you have a beautiful wife to free culture, free housing for education, as you had in
communist Europe, but if you say anything against the government, you're put directly into jail, what's
the point? Right, what's the point of this beautiful, so you need this, this is called the interdependence
theory of human rights. And that is, you know, related to the some of the critiques that, you know,
human rights are mostly about, you know, civil and political rights, and they actually should be read as
independent from one another, okay.
Remember, we will see I laid out in more detail. But even with that number of scholars and leftist
suggesting that economic social cultural rights even when they have been, we respond to the argument
that we have to also focus on material issues, the right to health and rights housing, like Amartya Sen
said, the way it's been done is that it's been done in a way that is really minimal. And then a lot of the
interpretation of economic, social, and cultural rights, including by legal scholars who can try to say it's
about protect perspective, have been essentially all these treaty monitoring, it's been accepting that
these rights are really about sort of a minimum floor, that that's the only thing you can push a state to
do, rather than really substantive equality in the distribution and morals. And, of course, as we've seen
yesterday, there are a number of critiques about the fact that well, human rights in any case are
Western, they're liberal. They talk about an individual person say even when we talk about economic
social life and don't take into consideration, alternative visions. They're what you call D mobilizing. The
mobilizing is a term that was developed by Teddy Kennedy that you can see is a professor at Harvard,
who suggested he take his book in 2004, called the dark side of virtue, which created a huge splash
among human rights actor, just as Samuel Moines book for not enough, did in 2018. And the same kind
of reaction, what are you talking about? So David Kennedy essentially said, you know, if all the work has
been trying to counter this counter majoritarian critiques and show that you do all of these, you know,
there is about an obligation to respect for tech fulfill, and you try to sort of give legal standards in terms
of what is a reasonable behavior with regards to the obligation to progressively realized rights. So all of
57
this is very long and even says in one of the passages, legalese terms, what is is that this might actually
mobile demobilize social justice actors who are on the ground who have to enter these legal categories
who have to enter the judicial processes. And by doing so, traditional processes are not easy to grasp for
everyone. And also they sometimes fail or sometimes in traditional concrete things for people. There's a
famous case, housing case, famously, the South African Constitutional Court says, Yes, we recognize the
right to housing as being justiciable. And we think the right to housing, Mrs. Goodwin has been violated
because she didn't have access to American emergency shelter. Celebrated books, conferences, dinners
about this, what happened a few years laters and Mrs. Coogan died in the streets still without housing.
Okay. So that's, that's it, his argument is to say, you know, the oldest is really well, and relates to what
you were saying earlier, you know, sometimes things happen. So that's an important set of critiques that
are important to know, I don't think that necessarily disqualify or dismiss all of the work that's been
done to try to show that, first of all, you cannot eat human rights. So you have to also take into
consideration all of the things which allow you to eat the right to be housed. Number one, and second,
that the obligations can be, you know, don't always cannot legally always be qualified as the obligations
of price to fulfill, like allocate resources, but that it's also about many things, negative obligations, or
what's called the obligation to protect.
Okay. Question questions about this?
Actually, I always remember, I went west to Morocco. And I went into a taxi and the taxi asked me, what
do you do? I didn't say anything for five minutes. And then he said, you know, for me, democracy,
human rights, what matters is to have roads and health care for my kids the rest of what we care about.
So there's an argument that says use a very material. So I went maybe a bit too quick sense idea, and
we'll see is that's one part of the thinking is thinking is really on the contrary, that you need to sort of
take fully, fully into consideration when you think about development posts, when he was thinking, you
know, by the fact that the way you can write something designed to mostly practice by a lot of human
rights organizations, but what was really to push one side, and he said, you know, we need to
completely take human rights seriously, that we need to take both together, they're interdependent.
One doesn't. Beautiful. Day out there, that doesn't work either. Really strong. But you are right, in the
fact that you know, some people on the ground feel or you have arguments, saying that all of these
things are not as important as providing concrete materials, population, a lot of what you call the
authoritarian developmental states, which were in power, China is still one of them. But you know, in
Southeast Asia, in the 1970s, and 80s, the argument was that, well, we're doing, you know, health and
education. And that's more important to people than you pointing out the finger at us, because we're
putting our opponent to chip. So there's a strong argument, you're absolutely right, that it's out there
and that device, advocates have to fight constantly. But we'll look at the history of blacks in a few
sessions. So yes, thank you for your question. So we don't have much more time. And I was going to give
you an introduction with a lot of numbers, etc, with regards to poverty and inequality, but actually a lot
of things that you today, and you will have a memo, adjusted and an email. You have more questions,
58
but I want to ask you now a question related to what to look out for today. In particular, with regards to
already in its relation to human rights. So we've looked at development, we started to deconstruct a bit,
that notion, we've now looked at human rights to some extent, and now we're sort of dynamic If you
putting these concepts together and the question for you now and you know, I'd love to hear from you,
maybe we'll take one or two minutes just to think about it individually or talk about it with your
neighbor. Do you think that poverty is a human rights violation? So that's the question. So take a few
minutes just to think about it is poverty a human rights violation?
A year okay, okay. Let's let's I just want to I just want to have a minute or two. I would like I would just
like I'm sorry, I'm interrupting this. It's just because I was very curious. So we know where to start from
tomorrow. I was just curious to hear a couple of your thoughts and then you were discussing it. So does
anyone wants to give us your sense? Yes. Why
and that is something that is not
political. In South Asia or Africa, like every country Right, can be applied fail by ratio. Right? Because the
definition of poverty is something that is very much more. Especially, let's see as many people as I think
it's not
okay. Any group or anyone having different opinions for did you all what you just
instinct over two years it's easy for me to
make those playing playing country,
but Beijing that most of you here
59
needs to read that under 5300, check bills and pay for an apartment here, which is so expensive.
So welfares also right there, then.
Great, thank you. Thank you very much. Other ideas other than resist?
Liberty, like to take some of that material?
Great, great. So all of these are, I think, time is pretty much up. So we don't have the time to go to this.
What will will begin to do tomorrow is I will go relatively quickly through what some of you have
mentioned here is, you know, how do we measure both poverty and inequality as in debates about it
that that is important to know. The other thing is, when we think about the question of poverty as a
human rights violation, it relates to many other things. It relates to the question that we started with the
other day of thinking about human rights legally or morally, and sometimes important is going to is not
that quite clear. And from it's quite now, positivistic perspective, there's a lot of lawyers who will say,
Let's not say that it's abolished, because there is no sex and because of everything, which was said here,
and we're talking about a violation, we have to be legally sure we can define it, because otherwise it will
undermine the power, legal and normative power of human rights to actually move things we already
know that it's complicated to move. But if we everything is a violation, then we're not going to we're not
going to listen to us. Other people are considered that the border is not that easy. And you can actually
mobilize political movements or social movement, even using the language of saying, you know, people
cannot live under this. This is a violation of their essential dignity and therefore the human rights. And
sometimes a little bit of the border between legal arguments and moral arguments. And I'll talk to you a
little bit about arguments that have been made by some political philosopher Bucha are sort of trying to
sort of, you know, be really at the border between law and morality and these issues. But this will also
give us an occasion to understand sort of, what is the functioning of sort of the legalistic positive I would
say sometimes limited version of what a human rights violation is. So thank you very much. I will see you
tomorrow tomorrow. Yes. No, yes. No, not tomorrow, right. Yeah,
60
Class 4
reach recharging? Okay,
welcome back to So Can those of you who are on Zoom me? Can you hear me correctly?
Yes, you can hear you.
All right. Okay, so today we're we still have quite a lot to cover in our sort of foundational building blocks
for this class.
So I want to to finish off our discussion about the question that we finished with the other day, whether
we can think about poverty in terms of a human rights issue or a human rights violation, what's the
difference, and this will give us another chance through an example, to sort of understand better the
structure of Human Rights International, and even domestic human rights law, Holly kinda the legal
reasoning works and it this will be an example of it. Before we do this, I want to give you a couple of,
you know, ideas, figures, concepts about both poverty and inequality. So I'll go relatively fast. Many of
these can be found online, too, just to give you guys a sense, we'll then discuss this question of poverty
as a human rights issue and violation. And then we will turn to the second big tension, which I wanted to
explore the beginning of this class, which is looks more instead of development, economics reasoning, in
terms of the relationship between development understood as economic growth, even if we agree here,
I believe that it's not only about that, but how do you relate growth with two big pieces of this class
poverty on the one hand, and inequality on the other hand in economic terms, okay. So, so far, we've
done just as a bit of a recap. So we, we've looked at development, and looked at, you know, how, you
know, there were debates about, you know, the very idea of measuring development that protects
about that, and various examples of how you can measure, measure and find the best surrogates the
61
best sort of example of what development material can mean to people. And there were a number of
conceptual and methodological dimensions to it, we discovered and discuss GNP, GDP, per capita
Human Development indexes and other forms. We also looked at history, the human rights in terms of
both concepts, concepts of human rights and the history of the modern human rights. And just
remember that all of these histories and its complex history, also this critique the various critical
approaches to human rights, also plays an important part in understanding why until quite recently,
human rights was seen for people in policymaking about development, development, economics,
policymakers, as something that should be left out to lawyers, politics, something that was ideologically
complicated with a universal and universal is an economic, social cultural rights and civil political rights.
So all of this, you know, really is important, but in a way sort of, partly explains why human rights sort of
left aside by by those, you know, thinking in economic policy rulemaking, that, you know, development
is sort of a technical thing. to do it's not political and human rights should be, should be left aside, we
will get back to this. But remember the big debates one about universalism. The other one. Other ones
about sort of the other all of these groups, various items that we discussed, I posted on your Moodle
memo that sort of in writing does the same thing, which I did quite quickly the other day that lays out
the various arguments about critiques of rights and major critiques of rights, the notion of, you know,
the idea that you cannot teach human rights, the idea of a liberal, Western understandings, all of that is
out there. And I also added is, we didn't have the time to discuss it in it in critiques about human rights,
about the fact that they're very liberal oriented, they're very Western, in the, in the whole, you know,
apparatus of thinking about human rights as individuals protecting their individual spheres of private
private property, liberty and security, versus the state. There are strong critiques also, of course,
you know, of how human rights thinking seems to sort of other other forms of thinking other forms of
power, dynamics, accountability, but also, in terms of gender. I posted you a really interesting summary
of a publication which came out a few years ago by a really wonderful scholar called Rebecca Ford, she's
a professor party at a Jindal law school, and also in the UK, I believe, and she wrote about a book about
human rights and in the fishbowl, you can read about it. And it's a really interesting critique, both from a
gender perspective, but also against the liberal and Western features of human rights, if you're
interested, have a look, it's a short sort of summary of that, that works. Just know, of course, that
they're out there. So now, if we sort of focus on poverty, okay, so poverty might be something that is
quite, quite obvious for you. And when we're talking about development, obviously, we're going to talk
about poverty, okay. But you have to know that for a long time until about, I would say, about the turn
of the century, poverty was really something that was not really in the debate, or even not formally,
really, in the, the primary objective. For example, if you look at what the World Bank said, it was doing,
what the World Bank was doing was development as growth. Right. So growth was really there. And,
you know, the notion of poverty was sort of seen as a, you know, maybe a negative externality of
produce something that would have to be part of it sort of, you know, a sideshow of the development
process with industrialization, modernization, and something, it was something that was sometimes
even caricature in the 1980s, you know, World Bank document is, you know, if you read between the
lines, it was often, of course, in domestic circles, too, sometimes poverty was something that, you know,
those were poor would sometimes have to suffer or sometimes even blamed for in the literature. So it
was really something that was, you know, not really part of the main objective, which was to modernize,
62
industrialized, through a variety of policies, which we, which we'll look at for a while he was, you know,
about industrializing domestically in the 60s and 70s. And later we moved, we will, we will look at this in
detail from worry, it moves to sort of more trade oriented, exported economic growth, okay. But now, I
would say the last 15 years sort of poverty is that you have, you know, big charities, you have a notion
around 2000, around the millennial making poverty, history, there was a movement like that. And
there's also been a shift away and the new way anti poverty work is structured, you used to have big
international financial institutions and organizations, the World Bank, regional development banks, or,
you know, bilateral agencies, such as the USA ID Agency for International Development in the US or, you
know, different in the UK. And you now have a shift in a huge philanthropies that are actually caring
towards the World Bank continues to do a lot now, but carry a lot of work. Today in the area of sort of
anti poverty work. If you looked at the economists, I told you, it's sort of a reference in these in this
field. Every year I remember as a student at this I was looking at the World Bank reports World Bank
report, the urine, the World Bank report was the thing you would look at to understand what were the
trends in thinking about development? Now, the World Bank report is barely mentioned sometimes in
The Economist, what's mentioned is the Bill and Melinda Gates Foundation report. That's where you find
sort of the current thinking so you know, The way it's a good thing or a bad thing you like it or not, but
arguably, there's been there's been some form of privatization of anti poverty work. Hopefully, we'll just
complement the public work from bilateral Development Agency, what's called ODA, you know,
overseas development aid by the OECD or countries of the world bank. But there's a lot that is now
being done by private philanthropists who have decided to put a large size of their fortune to target
wherever they want to. Okay, so it can be for the greater good, but it's also a very specific approach,
sometimes a more narrow approach. There's also something that works quite well, and clicks quite well.
It's very trendy at the moment and relates a lot of the way someone like Bill Gates, for example, thinks
engineers really liked that kind of thing. The Nobel Prize in economics was awarded. I think, two years
ago to Estelle we filmed a French economist and her husband, Abhijit Banerjee, they,
they put forward an approach to fighting poverty that's become really really popular, which is I think,
ethically disputable and a lot of human rights people are actually not very happy about it is the idea to
push what they call evidence based social policy. So whether you're going to put malaria nets or
whether you're going to put what's called conditional cash transfers, you're going to give people money
if they promise to bring the children to sign up their children to school, or if they promised to have
vaccinations, for example. And the way this is actually looked by the flu, and Banerjee is sort of through
what they call randomized micro experiments, a bit like drugs, you will try the malaria nets approach in
one village and not on the other. And then you will see what works best you will try the cash transfer on
one region and not on another one. And you will compare it just like you would with a placebo, you
know, vaccination or drugs. And this is something that engineers love Bill Gates love that. And it has
actually really fine tune the efficiency of a lot of aid in anti poverty workers, because of course, it was a
huge literature of critique about how AIDS in anti poverty work was sometimes not affected. Bill
easterly, as an economist at NYU famously wrote a book called The White Man's Burden, talking about
the effectiveness of Western aid and the political economy of it. And he was, you know, debating with a
lot of other economists Jeffrey Sachs. Does anyone know Jeffrey still normal to Jeffrey Sachs is? I'm just
curious if so 10 years ago, 15 years ago, he was a big thing. Working at the World Bank first and then he
63
was the adviser to UN Secretary General in 2005, came up with a famous book called The End of
Poverty. Some of you may know that at the end of the Cold War, famous political Francesco Francis
Fukuyama wrote a, you know, a book called The End of History. And he's now quoted, again to ask, you
know, is it the new end of history now with what's happening in Japan? In any case, yes, actually, sort of
a little wave to that and wrote a book in 2005, calling for massive, you know, north south redistribution
of resources, especially for countries which you said, we're calling what's called, like eco poverty tracks,
because of their geography, there, sometimes colonial history, the job that their geopolitical situation
and he said, you know, we can we have the resources today to do that. And he was, you know, in a fight
in the famous fight with Bill easterly, who said that basically, western north south west, north, south
Asia was competing, you know, a waste. According to him, you had other big names such as Paul, could
you call your the British communist for the things book, the bottom billion at the end of the two, in
2008, or nine, I believe, an important reference, which we'll find in many university libraries today. That
sounds cool, for example, it's still you know, out there, it's a book that's 10 years old, but it's important
by two economists called.
So as to Mizzou and Robinson, a book called Why nations fail and they try to give a little bit of a, a world
explanation of, you know, why do some, some nations you know, prospers and others don't? And they
suggest that the various hypothesis that have been put forward the poverty tracks geographical
historical, you know, are partially valid. But for them the most important variable is that economic
prosperity, according to them depends on the inclusiveness of both economic and political institutions.
So the more people are able to participate in economic institutions, access to contracts, access to loans,
access to, you know, economic activity, but also in terms of political institutions, and they were, of
course, you know, pushed to say, you know, what about, you know, a country like China? And their
answer was, well, there is actually some forums, you know, sometimes informal, non democratic, liberal,
but there are some forms of both economic and also political participation. But their argument is that
China's, especially the current Chinese government's model is not sustainable in the long run, it is not
inclusive enough, and in terms of, you know, really going step further and continuing economic growth,
according to them, they will not be enough. So they're sort of, you know, you know, one of the
references in this notion, but then, of course, so there's a lot of the, you know, the, the numbers in
terms of poverty, which we're going to look at, are have to only put in a lot of the literature that was
looking at poverty and the trends in reducing poverty, we'll see that there's been actually, if you think
about poverty, in terms of income, number of dollars per day in your pocket, there has been actually a
huge reduction. COVID, of course, is a big thing. COVID. And then what's happening now, with the
current prices, and prices of food in particular, is going to have an impact. And the you know, the
bottom line is that, you know, covered poverty and income has actually globally gone down quite
spectacularly. But there's a large number of parts of the world in which going further than that, when
they was called The Last Mile, I'm going to do readings, you can't that is hard. And the other thing is that
COVID is going to actually, you know, regress a little bit some of the progress and for the first time, the
number of people under the Public global poverty line, since COVID, has actually risen. I think the World
Bank suggested by as many as 150 million people by 2021, would have actually gone back under the
extreme poverty line, which we'll look at in a minute. And of course, there are huge numbers which
might be coming. There's a new research from the World Bank estimates that climate change also will
64
drive about 68 million between 68 million and 132 million into poverty, if you measured in terms of
poverty line by 230. Okay, if you think about COVID, some numbers are quite evocative governments in
Britain poor in the poorest countries of the world have handouts, only about $4 extra per person and
social programs in total over the the period of one year after COVID. And if you look at the US, Britain or
France, it's about 695. So you can see also that kind of
difference, okay.
So one important thing is that two poverty as you can see here, can you measure then in red, the variety
but so one is the notion of strict income concepts, the notion of absolute poverty lines, okay. And then
big moment for this. And I had a chance one one day to talk with people at the UN who said, you know,
at the UN, we often come up with new concepts, new indicators, new labels, and we fail. And for some
reason, for once, our marketing was good. When just before the millennium, we came up with the idea
of Millennium Development Goals. Okay. And Millennium Development Goals for some, I mean, we can
understand what somebody said, struck a chord with a lot of international organization and states said,
Okay, we have development goals, but not obligation. We have goals, and we have a set of targets and
indicators, and we can show how well we're doing in terms of development. So it was established by the
UN in 2000. And the number one goal was in terms of poverty, okay, the goal was by 2015 to reduce by
half the proportion percentage. There was a debate. It was supposed to be another term, but it ended
up being the proportion of people living on less than one daughter TTP. Now you know what it is per
day. It's moved now, in the sustainable development. Those are 15 years after there was a review of
what happened. Does anyone know if the Millennium development goals. So the comparison was
between 1990 and 2050. Do you know if that target had been actually achieved in 2015? In terms of
reducing poverty? The goal number one, yes. No, I see. No, actually, yes. Actually, it was, and a lot of
critics that they say that, you know, the target was a proportion of people between 90 and 2005. That
was actually, you know, not ambitious enough, it did. Because if you think about poverty stricken
income, and how many people on average have in their pocket, we're talking about $1 day, extreme
poverty, right? The staggering number of people who were lifted out of this very low level of poverty in
both China and India made it happen, right quite easily by 2010. In 2015, there was a review and the
sustainable development goals were introduced. So sustainable development, the notion of
sustainability, and also the idea that those goals were applicable to all countries of the world, not just
development, developing countries. And you can see that the number one target remains focusing on
poverty. And this time, it's not to reduce, but it's to eradicate extreme poverty for all people
everywhere, measured as people living on less than 125 a day today. It's $1.90 TPP. So that's the
extreme poverty global life. That's how it's actually
65
calculated. Sorry. Very easy to meet.
Yes, exactly. But that's why that's what that's why governments like that. That's exactly. But that's, I
mean, the US, you know, or even front, like France, or countries, like France, for example, will say, No,
we've we've achieved this a long time ago, pretty much no one is under the under that line. This is why
and we will get back to this. There's, there's a there's a whole literature that criticizes this, It criticizes
the very notion that, you know, poverty can be measured by an abstract kind of line. And there's
critiques or for a variety of reasons. First of all, that line is very low. It's not poverty, extreme poverty,
okay. And for many countries, that doesn't mean anything, because $1.90 in the US, pretty much
everyone would have that one way or another. Exactly, exactly. Exactly. So first of all, it's one one
critique is that it's measured in terms of income. And sometimes people are poor in many other ways, I
think. But the answer is always like rough. It says, Yes, I know. But this is what we can measure. The rest
is difficult to measure. But their critiques about the fact that this is supposed to be objective, it's very
low. And it doesn't give a sense of the subjective. You know, you know, how poor you feel how poor you
are. And that relates to another notion, which I'll get back to in a second, which is the notion of relative
quality, which relates more to inequality, okay. But there's also a question of how these are measured.
These are measured through, you know, national wealth, or poverty or consumption sort of figures. And
a lot of people in the literature in development economics say that, that actually, the best way to
measure poverty is more in a multi dimensional way, as you suggested, and also to other means of
survey, for example, what's called household surveys, which ask people a number of questions, you
have electricity, you have gas, your income, your food, and that are much more precise. And as we'll
see, I'll give you a couple of figures. If you measure this in this way, if you use I mentioned that the multi
dimensional poverty index, you will see that the fingers are completely different, but states like that,
because that was quite low. That was quite simple. It was quite measurable. And after five years, some
some states already said in 2050, but we've done it, but remember that when the millennium
development goals were were instituted, it was mostly for it was for developing countries. Now, all of
this is supposed is about eradicating poverty everywhere. Okay, including places like the US, but the
notion of relative poverty is one that sort of slowly came into into both the critique but also the public
debate because a lot of people will say, Well, okay, we're going to render this in absolute poverty line,
but a lot of people feel poor because of what they see around them as being you know, less poor. And
you know, if you think about it, and there was a Bronco Milanovich, an economist from the World Bank
talked about this is, you know, if you're for those of you who drive or who have been in a taxi, if you're
Enter this for like four lanes, okay, you want to tax you in a car and you're stuck. And then the line here
moves in the line, he moves in the line, he moves and you're stuck. When I draw a hit, I can't stand it, I
will go there, and then I'm stuck there and then, okay. And it's this sort of psychological idea that, you
know, people actually don't necessarily mind if some people are really going fast, as long as they're
moving to. And, you know, one interpretation of, you know, huge resentments that you can see in, you
know, western industrialized country, you know, that some people voting for Trump or LePen. Today in
France is the idea that people feel that they're actually there, their income in real terms has stagnated.
It's not the fact that they are, you know, Jeff Bezos or Elon, it's about the fact that they are stuck in
terms of income. So this notion of relative poverty is one that is actually also really much in the picture.
Yes, I'm sorry, someone had to have Yes.
66
Wait. Like, it's like I understand. Because especially keeping this kind of trigger, like $9 a day, if it's
available, each shift the entire Owners of poverty eradication from the local market itself, because the
Google runs to the say, Oh, we've already applied. And so it's like, basically, like creating this friction of
sort that poverty, extreme poverty only exists in developing a very skewed way of looking at the images,
the experience of Western countries over those of
you absolutely, and that was, you know, so countries did adopt this. Because, you know, the downside
of it is for some countries to say, well, it's not our fault, we can't do anything. It's all the rich countries
fault. So we're not going to do anything in our own country to tax the rich in our country, and to actually
implement social policy, even as a low income and middle of low income country. But yes, you're right,
right. And there's been a lot of, you know, critiques about that, and a lot of countries in the, let's call it
global south for now, pushed in the 1970s, and 80s, for something that was more about accountability. I
remember when we raised this question, in the first passage, was the notion of a right to development,
with the notion of a right to develop, and with the idea that, you know, countries which have been
depleted of their natural resources, or their human capital for centuries, or even now in the sort of post
colonial global politics of global supply chains, for example, would have a right to development that
would actually include the idea that there is accountability from the richer countries to actually help
those countries develop. But that's something that's never been accepted by richer countries, either.
Okay. But you're right. You know, that's, that's definitely an argument. The answer was also well, these
are just goals with our benchmarks indicators. And it can also give sort of a way for national policies to
be set and for the World Bank, or other countries, which are actually trying to help lower income
countries for a variety of reasons, can actually measure their progress in terms of poverty. If we think
about these absolute numbers, they've really gone down before. Before COVID, it was about, you know,
almost 700 million people still living under that line, but that was, you know, reduction of, you know, 30
or 40%, compared to a decade or so earlier, and that the speed at which people global poverty was
reduced was actually astonishing, if you look at, you know, how long it took for Britain to reduce its
income, poverty in terms of absolute numbers. And if you look at, you know, what China and India did,
in those terms, at least, it is actually quite an impressive, but you have, as I said, sort of, you know,
critiques about about these lines, you know, how, how they, you know, how relative how they, how they
don't include a variety of dimensions of they're not subjective. So you have a couple of broader concepts
and have not, you know, made it go into the mainstream. One of them is the notion of capability, big
privation. We'll get back to this study. Amartya Sen. It's the idea of poverty is not just what you have in
your pocket, but your ability to have access to healthcare to education, but also your ability to
participate in political life. So that's what what's called human poverty. And MIT a sense, we're social
exclusion that was a term that was developed by the former UN Independent Expert on extreme
poverty. A while ago, Argentinian Gupta, who suggests that extreme poverty was a combination of
income poverty, human development, poverty, so Amartya Sen, poverty and social exclusion should be
close to discrimination. So if you can measure how people are excluded from life that should be
counted. And I mentioned also last time, the multi dynamic dimensional, the multi dimensional Poverty
67
Index, which uses micro data from household surveys rather than the absolute national lines, which are
given by states measures income, but also basic needs. And if you look that I told you, I will tell you how
staggering the difference is. If you looked at the figures of 2018, sort of before, let's say 2090, just
before COVID, you heard about 700 million people that will be under the baseline right? This line here,
but if you do use the multi national poverty index, it would be 1.3 billion. So, you know, the numbers are
really different. In Ethiopia. 39% of the population is considered extremely poor under the conventional
measures. But if you look at the multi dimensional Poverty Index, which takes a lot of other things into
account, whether they have a household access to health education, as well as standard living, it's much
more microanalysis. It's about 90% of the population. Okay, there's also a big critique, what's the
problem with a line? If you say all of those who are under 190 are extremely poor, and we should care
about them? What's the problem with that?
Everyone else? What about the people who have who have $2? Right? Are they rich? No, but according
according to the line, they're not extremely poor. Okay. So a lot of social policies, that's why government
likes it, they said, we need we need to focus on really focusing on these really, people. And in some
countries, it's a lot of people, right, but in many countries, and for those who are just above, oh, yeah,
too bad, you're not in the line, you're not in the Millennium Development Goals, so you don't count. So
the World Bank, finally sort of, you know, now gets indicators looks at $303.20, for example, as another
line to because COVID has shown that a lot of people who were just, you know, above the line, they
were to 2.5, they want you know, very quickly under the poverty trap, you know, with you know, failure
of social safety net, and it will be really fast the rise of food now, because of the more you it's gonna go
very fast. So there's the idea that you need to know lines are never a great option. But in any case, that
is the way it is measured, if that is the way
things are today
Sustainable Development Goals, you have a couple of slides here, we talked about the sustainable
development goals and how sustainable development goals include much much more things that the
original minute Millennium Development Goals, but as we discussed in our first class, with your group
over there, if you have a lot of goals, including poverty, and it includes actually sustainable development
goals, 10 inequality also, which is quite new. The problem is how you measure all of these and how do
you achieve all of these things at the same time? Quickly, inequality. Okay, I'll get back to this. So
remember, they had this notion of the Gini coefficient, and as I said, So inequalities is usually a measure
of, you know, the proportion of people the percent we call is the lowest or highest percentiles of the
population in terms of either income or wealth. That's how economists measure this Yes.
68
single measure for example, in countries like communist countries, for example, Russia and others can
also Sweden, Scandinavian systems, which provide positive rights to the skills in a more of a developed
manner people will be considered even if they gain very, very little more than or practically they need us
to maintain absolutely the country the state provides the basic case
Absolutely, absolutely. I mean, in terms of Scandinavia, definitely Scandinavian countries are always
remember when you look at the Human Development Index, which looked at all of these things, you
always have Scandinavia is on top with regard to Communist Russia. If you think you go back to seven
year sense notion here of poverty as capability deprivation. He would agree to start if we think about
communist Russia, he would disagree with one important factor. Okay. For Tsang development, he calls
it development as freedom is, is about giving an individual the ability to live a life, he or she has reason
to die. That's technically how it says. And for him, the poverty is a deprivation of all the things that can
make you achieve your individual goals, the ability to participate in political decisions, meaning civil and
political freedoms are part of that. So if you don't have that you're poor in some way, too. Okay, so not
itself. Scandinavian countries have all you know, all of these other things, including the ability to
participate in, you know, democratic politics, in a communist Russia, and you will see that sense
argument was very much fighting against authoritarian countries, which are doing exact, we're saying
exactly that. We're fighting poverty, we're giving health we're giving education, we're doing all of that.
But they were, you know, in terms of similar political freedoms, that were seen as something completely
different. A lot of the communists would sort of be you will see next week, where you're going to talk
about this is called the Liberty trade off that but people like Amartya Sen, were really, really strongly
pushing against that idea. Because for them, we need to have, you know, not only a broader idea about
what poverty is, in terms of it, not just being about income. It's about health, it's about education, it's
about you know, food, etc, but also about civil and political democratic freedoms. So a lot of
disagreements about it. But that's otherwise, you know, the.
Exactly. Then, you know, that's why I say there's so many different approaches, they're all informed by
politics, ideology, methodology. And I'm just telling you what the the main the main policymakers are
still thinking about, it's mostly in terms of the slides. It's mostly in terms of income, even if there's been
a bit of progress with the human development index with the multi dimensional poverty index, all of
these things are, are there, but I wouldn't say that they're mainstream today. Yes, it's exactly what we're
seeing in China. China is listed as, as where exactly. It's happening. Exactly, exactly. And there's a strong
year of disagreement for someone like sense still alive today, we strongly disagree for him. It's not it's
not development. It's not the full expression of developments development, it's as what he called
freedom. I will discuss this, this is a really fast for me, it's a really fascinating question. So in terms of
inequality, we can't go into all the numbers here, you can look at Sustainable Development Goals, which
which shows you sort of, you know, COVID, has, of course, an impact that I mentioned this in our first
69
class. And, you know, it had this idea that global inequality is sort of the combination of inequality
between countries and inequality. So let's say, to go to the north, south, rich, poor countries, but also
inequality within countries between the rich poor segments of the population, either in terms of income
or wealth, and the poorest segments of poor population. And the trends have essentially been that
global inequality had largely started to go down because of the rise in income as countries or countries
like India or China in particular, but that pretty much everywhere, the inequality within countries. So the
difference between the income and the wealth of the rich, or the poor, in any society of the world,
pretty much over the last 20 years has been rising. Okay. And now, because of COVID. The idea is that,
you know, inequality between countries is probably going to rise again, that some countries were able
to basically nationalize salaries, and health care and education and think about my country, for example,
and others simply couldn't, okay. On average, and taking into account population cells, income
inequality increased by 11%. In developing countries between 1990 and 2010. A significant majority of
how this is from the former World Bank economist, a significant majority of households in developing
countries, more than 75% of the entire world population are living today in societies where income is
more unequally distributed that it wasn't the 99th we're gonna get to see and why not, actually that is
the world inequality database that is a new sort of reference, the world inequality report. It's, it's related
to the work of a French economist, you might have heard of him to Thomas Piketty. He wrote a book
called capital in the 21st century, which was the, I think, the best seller for academic book books, and it
had a lot of success. in both Europe and the US in particular, and his work is looking at global inequality
trend around the world, he talks, so every year now you have a look at the world inequality report from
the world inequality database that looks at the data in terms of, you know, the shares of wealth and
income. And this is where you'll find the most specific and precise numbers that you you must have one
you had to read for today. But you also have heard probably, around the press, you know, if you take
the five or six richest people together in terms of their wealth, it pretty much is the equivalent of the 1/6
of the entire gross domestic product of the United Kingdom, take the five richest people in the world. So
you have these kinds of figures, you probably hear them a lot about how the top zero 1% Pretty much
everywhere. So this data about us about Russia, but also how inequality has been rising in India has
been rising in China pretty much everywhere. This is where you can find actually really specific measure.
There's also now a World Bank database, on shared prosperity, it say that inequality between all people
in the world has declined since 1990. This was before COVID up, but within country inequality is higher
than 25 years ago, which means that an average person is today around the world is more likely to live
in an economy with higher inequality compared to 25 years ago. So the numbers are quite
there. And it also explain why in a large number of places around the world, this idea that you're stuck in
the line where others are going fast, is very much becoming a political issue. Okay. So now, let's focus
on poverty. Okay. So
70
in terms of the question of whether positive, so to link poverty and human rights, you guys started to do
it the other day, or class, whether we can think about poverty is a human rights issue or violation. So
there's different way we can look at this. And this will help help us sort of unpack a little bit more than
what we did today with the other day, which was a really quick overview of that mechanism, the
monitoring treaty monitoring. Now if we think about the logic of human rights, okay, there's different
ways we can think about this. And this is one example. But there are other examples. One is to look at it
from a sort of strictly legal positivists. out of, is it a human rights violation? And if so, what do we mean
by that? Another approach is to look at this in terms of more sort of moral perspective. And I think, you
know, what you were saying the other day is that, you know, you could feel that this is a complete
injustice that people cannot live in Israel under a number under some of the minimal income that
people have, and it feels like a human rights injustice, or maybe by addition to the issue, and you will see
that there's a lot of thinkers who have been trying to articulate and they're not shy of saying that their
perspective is slightly more and more. Remember, at the beginning of the last session, I told you, you
know, there's there's really a fine line, sometimes between a legal and a moral outlook on human rights,
and very often struggles about human rights are to transform a moral, you know, crime and justice into
something that will then become legal and actionable, as we lawyers knows. And there's another
approach, which you know, would, and we'll have, we'll do a case study, actually, next week, in which I'll
get to tell you a bit more of what I mean by that I myself quite prone to this idea, which is thinking about
a more pragmatic world, sort of not because there's, there's lots of debates. Sometimes lawyers really
get upset when we say this is a human rights violation. You're talking about it from a moral perspective.
And if you do that, it's bad. Because it's going to undermine the whole legal mechanisms, and we Lloris
have been painstakingly putting together over the last 20 years. To respond to the you know, some of
your classmates the other day were saying, well, it doesn't work, it doesn't work. So they will say, Well,
if we say that everything is a human rights violation, it's going to undermine we have to be specific, we
have to be legal, we have to be rational, we have to put in the doctrines of reasonableness, we have to
work on case studies, etc. Case law so that we can be credible, we can have actually stays listened to a
case when there's one. Okay, so there's a strong debate. So the third approach is saying, Well, it
depends sometimes you're going to have to be using the moral language because it can mobilize
political power and achieve the same goals. And sometimes you're going to get to be quite legal and
loyally because you think that it's going to work better. Okay, so that's, that's just an introduction to that
very bright idea.
Okay, so from a
let's say let's go here for the moments, forget what's up there, just look at it. So from a moral
perspective there's there's one sort of camp in it, you can think about. One author who's quite famous
wrote a book about this about human rights is called Thomas Colgate is at Yale, and other political,
71
political philosopher at a number of other things that really talked about the staggering numbers of, you
know, poor people, including relative poverty to include inequality in the way they think, are, you know,
unacceptable. And they consider that, you know, human rights is the kind of language that we can use
beyond its legal positive enshrined, it doesn't have to be in a treaty doesn't have to be at the
constitution for us to talk about human rights. Okay. And so Thomas cobia, and I gave you it's on the
Moodle, I think, as an optional piece that was by Tim is asking, Are we violating the human rights of the
court? I don't know if any, did anybody have a chance to look at it? Was it an optional? No. So if you're
interested, have a look. So he makes a strong argument. He says, You know, I am using the moral
language, human rights. But I do realize that when we talk about the human rights violation, we have to
talk about something specific, either an action or inaction, of specific actors. So he says, I'm not just
talking morally. But I think that we talked about citizens of richer countries are all violating a negative
duty, were all violating a negative duty, not to participate, not to condone not to vote again, for
governments, which will actually leave as established a very unequal global economic governance
system. Okay, that seems very complicated, but it's not. He basically looks at the World Trade
Organization, he looks at intellectual property rights, he looked at the structure and how much poorer
country are represented at the board and the World Bank, or the IMF, he looks at a number of sort of
global economic, legal instruments. And he basically shows how these institutions and there's a strong
empirical arguments have been actually favoring richer countries over poor countries in the way
international intellectual property is protected in the way trade is organized. So he basically is saying,
you know, we, he talks about the metaphor of we're sort of lifeguards, and we can see people drowning
in a pool, and we're not jumping to save them. By voting in our governments and not asking them to
change these global international economic institutions, we are in fact, violating a negative duty, not to
condone it not to accept a global economic legal arrangements that violate the rights of the poor. And
he's got a huge number of economic data, pretty much showing this he's worked with Sanjay Reddy was
an economist at the new school. And they've been really doing a lot of sort of data, data data. But this is
sort of legal and more peace, which is, I think, quite interesting, if you're interested, have a look. Okay.
So negative duty not to participate in the global economic government's system, which foreseeably says
violates the human rights of the poor. Now, that's Thomas colegas. Arguments. He also tries to do some
lawyers. You know, the idea you remember this idea, the Universal Declaration of Human Rights as
customary international law, the articles which we read article 25, article 22. So he's also trying to say,
Well, in any case, you know, we are violating which so which rights? Well, these articles, he says these,
this there is actually part of international law. So this is where we violate, you remember, there was an
article that said, you know, you know, we everyone is entitled to social ordering, in which their freedoms
are. So he uses this kind of language and he allied sometimes with economists, sometimes with lawyers
to make the argument. But if we think about sort of a more positive outlook, positivist outlook
from a human rights lawyers perspective, this is You know how it happened. So remember the idea of
international human rights law as a revolution, anti sovereignty revolution, you have a number of
institutions, treaties. There's also what my colleague, Bolivia disputer, with the UN Special Rapporteur
on poverty and human rights called the, the emergence of for those of you who do international law, a
semi autonomous regime of international law, in which you have sort of a hybrid of regional courts,
international treaty monitoring bodies, domestic courts talking to one another, citing each other, and
72
you have a body of human rights law that is that is out there. And that is emerging. And you have all
these general comments, which are trying to specify with what this obligation mean, what does
progressively realizing according to maximum available resources we like to help make etc. So the
reasoning with that is that essentially, you can think about the violation of human rights. First of all,
when you have the texts, right, not just the more likely but actually, the crystallization of a moral
aspiration in a text a very specific text. So if you interpret it, the the Universal Declaration of Human
Rights as a value, or part of it is customary international that can be taxed. Otherwise, it's most likely
one of the treaties that we looked at last day, a declaration covenant, or it can be to a translation of the
Covenant in domestic law, the right to fair trial in the ICCPR becomes something in your constitution or
your legal regime. Yes.
Exactly, exactly. So we're actually going to look at this case in a few next few sessions. Yes. So the idea is
that you have a text somewhere real text, or you know, something that can be interpreted as having
legal value legally binding customary international, for example, the idea is that this text gives rights that
can create tort law. So the mechanism of thinking is really like tort law, tort like causes of action, which
imply having all of these different things at the same time, okay. So you need a plaintiff that has a
standing to sue, okay, individual or group that has a starting to sue, for example, if that, remember, the
Human Rights Committee, Human Rights Committee is a treaty monitoring body of the ICCPR and a
group, actually individual have a standing to sue if he or she has exhausted all domestic remedies.
Maybe he's gone, you know, to Regional Court if they're standing to do so. So there's all these things
that you have to take into account. And then you know, they can go in front of a treaty monitoring body
only if the treaty has ratified. The country has ratified the treaty. And the optional protocol, remember,
which is a separate tree that gives them standing to sue to go all the way for example. You need a
defendant that is a duty bear clearly stated the nation state very much so is the main duty bear with a
legally duty that is defined under human rights. Law. Okay, so for the strict positivists it's really only the
states. There is no legal doctrinal argument about the idea that non state actors even through the
customary international law argument, but also, other ideas will look at business and human rights, for
example. But for a long time, and even for strict strict positivist human rights lawyers, it's really the
state. Okay, you have to show that the state reaches a duty. Remember, the duties can be interpreted
often by constitutional courts or by these general comments. Remember the general comments that say
this is what the obligation of the duty to respect to protect or to fulfill the Right to Food beings. So that's
where you where you find it, you have to show that it actually causes a proof, provable injury to plaintiff
and that there is actually a remedy. So if you have the right to fair trial, for example, you see that it's
translated into a national legal order. That means to there's a remedy the possibility to go to court, or
there's an ombudsman or there's a human rights institution, there's something that allows you to
actually go out there. Okay. So that's the general structure very much like torts. Now, if we think about
the positivism approach, and we look at the question of poverty, okay, the committee for economic,
social and cultural LightSwitch is the treaty monitoring body of the ice s er International Covenant of the
same name. Defining the data is important. 2001 is pretty much under the influence of Amartya Sen.
Right. So the definition here is really wide human condition characterized by the sustainable quality
provision of the resources, capabilities, capabilities. That's a really direct quote of both Amartya Sen and
his then partner, Martha Nussbaum ideas, choices, security, power and necessity for the necessity for
73
the enjoyment of an adequate standard of living, and other civil cultural, political, and social work. So
you can see here that it's really white, to answer your question, right, you know, communist roughshod
doesn't fit here, yes to Scandinavia. So the first thing that is important to understand, and you had this
new reading, when you mentioned poverty, you are thinking of death rates of, you know, deprivation
that are related to the lack of extra income or access to productive economic resources. And the
example that they gave is, it is a, quite an easy one and important one, if you think about a low level of
well, being someone being deprived of something, if your low level of well being is related to a genetic
disease, for which there is absolutely no cure, no medication anywhere around the world,
okay. That is a low level of
wellbeing, but it cannot be recognized as poverty, because the link hasn't, you can be super rich, or you
can be very poor, in terms of access to income or access to resources, it's got nothing to do, even if
you're Elon Musk, and you have a genetic disease when you're going to die, or you're going to be
affected by okay. So the idea is that you need to have some form of, you know, in the chain, the causal
chain that leads to this low level work of well being you're in the hospital and you don't have
medication, there has to be in the causal link that led you to this a lack of access, lack of income that
didn't allow you to get, you know, the treatment that you needed. Okay, is that clear for anyone?
So that's one thing.
So then, the second thing is, okay, let's say that the low level of well being is can be qualified as poverty,
because there is the question of that person didn't have the medication that he or she could have saved
her life. Okay. Now, for them from a legal strict legal perspective, there is a distinction to be made
between the non enjoyment of human rights and the violation. And the idea here is that we give the
notion of violation, a very strict sense, okay. In order to have a violation, it goes back to what I just did,
you know, the tort like thing, you need to identify specific human rights. So tasks, you need to identify
the duties, you need to see, you know, what, you know, is there a state of duty to respect protect and
fulfill that has been violated by the state that is actually imposed on governments. And then you have to
identify whether there's a breach in meeting those duties, and you have to look at the intentions and
efforts of the state. Okay, let's say that a poor child is sitting in a hospital and doesn't have access to
medication, because, you know, you just have to teach the poor to have access to it, and there is no,
that medication is not there. Okay? The idea here is to say, well, the states really will be in violation of a
duty to respect human rights, for example, if that drug was available in other regions of the country, but
74
the state has decided for political or, you know, ethnic or religious discrimination reason not to give it
not to make it accessible in that area, or the drug is simply not available to save that child because the
state so that's the, that's the fate as a violation of the obligation of the judiciary to respect that you
don't want to interfere with the circulation of these drugs. If the state has not put in place a regulation
that will allow for, you know, the absence of a monopoly or the absence of you know, one of your
classmates mentioned, you know, these counterfeit drugs and would actually, you know, not be given to
the child because we worried so the absence of some form of regulation that would make sure that you
know, private companies are going to not benefit you know, exclusively from the from the from the
position of monopoly, or you know, that there's no wouldn't be if there isn't any regulation that allows
for the distribution of the drug in all parts of the country from a company that can be, you know,
sometimes qualified as a violation of the duty to protect the duty to protect the state is to make sure
that there's regulation so that people, individuals are not harmed by companies, for example, we want
to distribute the drugs in that region, or by individuals harming other individuals. Okay. So and this is all
the words that we talked about the other day that a lot of human rights lawyers have been trying to
show that with regards to economic, social and cultural rights, it's not just about asking the state to pay
for something, but it's about showing the states are failing or violating the specific obligations, which can
be the obligation to fulfill, which might include having to pay for the drugs that this child has access to it,
but most often can be characterized legally, if you look at the detection intention, or the omission of the
state in terms of violation of the obligation to respect or to protect. Okay. So but the bottom line is, of
all about this is to say that, you know, for a lot of lawyers, human rights lawyers for really thinking that
the best way to use human rights is by adopting a strict positivist outlook. It's quite rare. It's quite rare
that the states can be held to be violated violating human rights related to poverty or that poverty is,
you know, can be qualified as a violation of human rights by the state. Okay, you have to have very
specific sort of an obvious failure by the states, an obvious impediment some form of discrimination, the
failure to regulate. That is, you know, I've discussed this quite a lot with you, as far as they say, it's not a
bad thing, that there's a the hardest standard to make this work legally, because otherwise we wouldn't
be taken seriously. That's the odd. Yes.
Isn't it easier to move a company by elections? In a state where the inception of welfare capitalism
allows for Social Security? For example, like, Wouldn't it be easier to say? Let's say the Norwegians
absolutely poor like the poverty baseline?
Absolutely, you're absolutely right. And a lot of states can be a lot of, you know, cases that have been
successful can be basically about the failure to apply where it's at welfare state regulations. In France,
you have what you call a justiciable right to housing in which you know, if you haven't been given sort
of, you know, free, at least temporary housing by the state, you can actually, you can actually sue. So
there's the argument that you had in the piece, which I gave you is to say that rather than try to frame
poverty as a human rights violation, it is sometimes easier a to try to frame failures in terms of
respecting protecting or fulfilling specific rights. There is not a right to be free from poverty in any of the
75
texts. But there is a right to housing, there's a right to Social Security. In some constitutions, there's a
right to food, there's a right to occation. So the line here is to say, thank you for your remarks. This is the
way to sort of get at states rather than try to say like Thomas Pogi, that, you know, everyone is guilty
for, you know, thought the poverty of the poor, because, you know, lawyers will say that doesn't work.
It works morally, but it's the second to be legally effective. So yes, and absolutely in states where you
have those rights actually enshrined either in the Constitution or for welfare programs, it is much more
easily than you have much more cases. So yes, absolutely.
We possibly, let's say
too many, exactly.
It's impossible to be guaranteed any of that beyond the point and Absolutely. Guarantee too much of
labor without being ready for it
as a state. Absolutely. And this is why for a long time, you know, if you look at India, for example, in
debates around the Constitution of India, there was a reluctance, sometimes a strategic reluctance to
include economic, social and cultural rights as rights, I think, yeah, put them as you know, you know,
national goals of principle Directive Principles of policy, precisely because of that question. But then, of
course, I pushed by really creative lawyers, you know, who pushed public interest litigation in India and
around the guise of the right to life, convince the judges to be very progressively interpretive. And
finally, a whole range of economic and social rights related to the rights the right to life. So, but yes,
you're absolutely right. So this is the conclusion. But poverty is different manifestation on religions
always reflect some form of non enjoyment of rights and human dignity, they often will not always
protect the condition for human rights. So from a strict perspective, we need to actually find a failure of
government either prevent poverty or incomplete action that actually produce or perpetuate poverty.
Okay. The pragmatic approach essentially, doesn't really care about whether, you know, you need to
always try to draw poverty, especially related human rights argument, either from a moral or from a
legal perspective, you can actually draw on both the timing of what will make pragmatically one political
sets. But this seems a bit abstract here. And I think we're I just want to know, I won't give you an
example concretely. But the idea here is that if you, if you, if you say you have a human rights violation,
like you did the other day, you know, it might actually create a political movement around the fact that
this is a human rights issue. So there's that kind of symbolic language aspect to it. So what I want to do
now
76
is to is to focus on
another important tension, right, which is important to grasp. So that tension, I'm sorry, I just need to
look at something very quickly. Okay, so the second big tension here after the one between human
rights and poverty is looking essentially, at the relationship between development on the one hand,
poverty and inequality on the other. So we're now leaving the lawyer's hat, and we're going back into, I
promise you, we will, we will navigate between different ways of thinking and that's what we're doing.
So now, okay. So a question that isn't for Charles can development, whether you define it conventionally
as growth. So the income or more more expansive way can actually reduce poverty or, and reduce
inequality? Okay. So, one of the things that to begin with, is, is the idea that we need to put aside for
this to understand this debate, our ideas that we discussed in class, I think we all agree that
development has to be understood in a broader sense. But if we put that to the side, we saw that there
were methodological reasons or political reasons for which, well, there still is a focus on GMP, let's say
GMP TPP per capita, is still something that is very much at the heart of the debates in policymaking
circles. Okay, so if you bracket all the discussion that we we've had, so far, the question, if you add now
the notion of poverty is increasing the GNP, PPP per capita the size of the you know, the size of the cake,
and your slice of the cake. If you grow the cake, is that going to be the best way? And it's going to
because you're going to actually reduce poverty in terms of these absolute numbers under the the line,
okay. So the arguments which I gave you to read, I gave you a succession. And I'm really asking you, I
know this, you don't have many days between the class but please do the readings because it's better
for us to all do them before the exam. And also because I can hear from you how we understood that.
So the focus, and the first reading I gave you what is from 2006. Okay, and I gave you these orders and a
couple of economists pieces, that's kind of our time. The idea here is to read them in the order so you
can see the evolution or non evolution in the thinking. Okay. The first piece, which is a question of
justice talks about the idea that well, what you need to do is is the best way to reduce poverty is
important, both morally and in for economic reasons, okay, what you want to do is to maximize growth,
make a country's aggregate output the big pie the cake bigger. And then if the cake is bigger, we can
take a slice of that cake and give it to what's called, you know, targets, you know, social safety nets
transfers, specifically allocated to the people who are under a very low line. That's the way to do it.
That's what this this this article is saying. But it also says that there's one really good way, the best way
to make the cake bigger, what is what did they say? What does anyone remember? What kind of policy
recipes in that piece? And you know, it still remains today the the line of the economist in a certain way,
and it's still very mainstream in development, economic circles. So focusing on poverty is morally a good
thing to do. And economically, the best way to reduce poverty is to increase growth. What is the best
way to increase or what kind of policies?
77
Any idea? Yes, so
do we have to create state on enterprise? Every tariffs and barriers and trade? Yes.
To shift from like a more socialist approach like unfettered capitalism, because like, the idea that we
have overall economic growth that could like automate the day to.
Okay, so you call it unfettered capitalism, they would, they wouldn't exactly call it like this, but it's pretty
much a recipe that was labeled actor actually, in the 90s, is the Washington Consensus, the Washington
Consensus, why? Because it relates to the mainstream ideas of two big institutions based in
Washington, the World Bank and the International Monetary Fund, the IMF, which around the 1980s
90s 2000, there's been some shift, but it's relative, over the last decade and a half, have promoted a
very specific approach. Okay, that approach was that in order for countries to grow, they needed
indeed, to move. So you have to always understand that some economic ideas that they don't, they're
not produced in a vacuum, right, that they're very often a reaction to what was element before and we
will get back to this, but before that, there was an idea that what something is needed to do is to
industrialize, maybe sometimes to you know, state enterprises in a number of countries, but for a
variety of reasons, both historical ideological, which I will get back to next week. And the 1980s and 90s,
there was a strong push to actually do something really different. That primary engine of growth was
meant to be trade. Okay. So what countries have to do is to liberalize their economies, open trade,
open, attract foreign direct investments in their economies, liberalized financial flows, liberalized trade,
privatize, state owned enterprises reduce the size of the state in the economy. So that must sound quite
familiar, right? Some people call it neoliberal approaches, and they were, you know, very serious,
neoliberal economists. We will study some of them, which explain why you needed to do that. Okay, so
trade liberalization policies get away with quotas on imports, and any protection measures specialize in
what's called Export led economic growth. Every country has to find what they have, they can produce
or extract as that's what's called in economics terms of comparative advantage. Again, we will revisit this
idea that the best way rather than to try to industrialize is produce everything is to you know, find what
you have under your ground especially for you know, low income countries your natural resources, your
agriculture or what you can best produce and then trade it around the world, okay. You need to let the
markets yes capitalist market based allocation of resources rather than state deciding whether, you
know, resources of countries should go reduce the role of the state allow for foreign investment reduce,
in the domestic side, reduce taxes on introductory ordinario private sector affects national corporations.
So if you have high rates of liberalization of the economy, especially in the trade sector, you're going to
actually have higher rates of growth. And through this, if you have higher rates of growth, that was the
theory, you're going to have, as a result, a reduction of poverty. Okay? First of all, because there is a
78
consensus, and that's whether you're left or right, all economists will say, economic empirically, if there
is no growth, it's going to be hard to have a reduction of dependence, impossible to have a reduction of
income poverty that is accepted, what is debated is how you get to that Pro, what's the best recipe to
get to that growth, okay. And the idea was really to say, Well, if you have more liberalization of trade,
internationally, and domestically, if you do what's called supply side economics, you really reduce taxes
on the private sector. So go because they will actually generate wealth and growth. The idea you've
heard of this idea is that all of that will trickle down to the poorest segments of society, trade
internationally will help the growth and the poor will benefit from it, their boats will be lifted
domestically, if you let the private sector if you don't touch people too much. Let people reinvest in the
economy that will trickle down in will lifts. For people. That's the main theory. Yes, you have.
Yes, in terms of the European Union, the theory was definitely, you know, you're completely open the
circulation within the union. Yes, it but you know, in the union in the European Union, there will be at
least the some countries which also have some kind of strong welfare state. And the idea here was
really, and we'll look at how the World Bank and the IMF actually imposed these measures, not in the
European Union, but on, you know, Mexico, Tanzania, a lot of, you know, countries which were in debt,
we'll explain why, in the 1980s, and radically transformed their economies and really push them to not
try to industrialize, but to go back to what they were told to do before, which is to extract the natural
resources, sell them in exchange for, you know, foreign direct investment in manufactured goods, and
you function to trade and liberalize their economy. Okay. So, one of the founding moments for this was
2004, there was a large study at the World Bank by two economists, but one of them was called dollar.
And the other one was called K K, why they did a big study around 92 countries looking over for 40
years, basically saying that the liberalization of growth around the world had been proportionately just
as good for the poor as for the rich, huge empirical study, which had a lot of impact and give a lot of, you
know, impetus momentum for the World Bank to say that they were on the right track, and for articles
that those like those you saw in the middle of the 2000s, to be written. Okay, the idea was that trade
liberalization, globalization, if you want to call it in another way, we would be not a bad thing for the
poor. That, of course, was, you know, why we debate people like Thomas Borges. And already we're
actually trying to show counter empirical data to show that this was true, but it really made an
important impact. You still have debate, I don't have the time for you to do but there's a number of
names. There's debate today between David Henderson and Mark Clayman about, again, whether
globalization and liberalisation of trade, the circulation of capital goods, in particular has been good for
bad in proportionally, especially for the poor. But there's still no argument about that. But there is less
of a consensus. If you look at the distinction between the Article of the economist in 2006, and the other
one, which was from 2012. I believe. You can see the difference. It there's no consensus is that you
know that that study is not consensual and more. There's a lot of debate about whether globalization's
work is very interesting empirical studies, looking at, you know, there was a sort of a holy law in
international development, that foreign direct investment is always going to be cool. Good for low
income countries. There are now no very good empirical studies showing that well, it depends, depends
how that foreign direct investment in us whether it actually some of the returns are kept in the country
where the some of it is actually training workers on the ground, whether there's transfers of technology,
and sometimes a lot of what's behind it is law. Extraction contracts bilateral investment treaties that
79
actually don't allow for foreign direct investment to be really helpful and beneficial for the country. So
that's law is pretty much everywhere, there, but just know that there are, of course, more much more
debates about that idea, right? That idea of, you know, opening trade, deregulating, not taxing the rich
domestically, that will trickle down and benefit the rich, okay.
The research showed that from 2004, it's a big study by dollar and K, they were showing essentially that
the liberalization of trade, which other people would call globalization was actually proportionally, just
as good for the poor segments of the population in the world as it was for the rich. So it benefited
everyone. That was the argument. And there since has been a lot of counter arguments. Okay, now, so
that's probably so the idea was, okay, focus on poverty, and we the recipe for poverty was this. Now,
inequality, we take inequality. In that article, the first article, what it says, and really next week, I will ask
you, and I will wait until you tell it. Okay, well, maybe someone remembers, what does it say about
inequality? Should we focus on inequality at all?
Does it matter? No,
okay, the answer is no. Let's not focus on inequality, because it's not the title of the editorial, it's a
question of justice. It's not a question of economics.
Okay.
So today, inequality is very much we discussed the, you know, the Tickity, and, you know, 1% Occupy
movement in the US, you know, inequality very much there, but for a long time, so I told you already
was not always there, but Nick wants to forget it, development, economics, the distribution of income
was always something that economists look at that as a goal as a policy objective to reduce inequality,
definitely not. Okay. And that is, there's a reason for that. Okay, there's a very specific reason for that,
which I'm going to start talking about today, and we will carry on
80
next week. So the first type of arguments that suggests that essentially, so you have two different
versions of The Economist, but in both versions, you have two sets of art. The first is a
moral. The moral
arguments, is quite stretched and quiet. So I'm going to detail it a little bit, that'll be where we'll finish
up today. But it's the following. It actually draws on a very specific body of work. Many of you have,
perhaps for the John roles, John rose, a liberal, liberal American political thinker. So John roll in a theory,
in his theory of justice, wrote about several kinds of justice hypothesis. And John was someone who was
actually advocating politically for the Western distribution of income from the rich to the poor in society,
domestic, not International, that was not his thing.
But John rose,
gave an extreme example, under which morilee It would be okay to have an expansion of inequality
within the country. Okay, so let's say this is very schematic, this is year one. This is the poorest segment
of society, their share of income. This is the richest segment of society. Year two, the poor a little bit
better off the rich are much better off, okay, the inequality has risen. But the poor here are better off
better here. Not a lot, but they're better here than that. John Rawls is saying that says it the burden of
proof is on those who are favoring these policies, but he says that, if of all the options of policy,
you can prove
that the one that really raises inequality is the one that will give the best benefits to the poor. Rather
than redistributing for example other from the policy, then it is morally acceptable From the standpoint
of liberal standpoint, to have an increase in inequality, okay? This was really an extreme example says,
you know, it's morally acceptable and the burden of proof is, is on those who promotes policies that will
81
increase inequality, they have to show that what they're suggesting is overall going to be giving give the
poor the best possible results. Okay, yes.
It is a problem. Not people, like putting things forward a problem for itself. Because, frankly, even if they
have a problem with the equality for itself, then I don't think that's like, I don't think that's like, not that
extreme.
I mean, for many people, again, I told you, some people don't mind if some people are going faster than
you. And if you're stuck, if you're not moving with, for many people, it's okay to have people who go
much faster than you as long as you're moving a little bit, too. And that's a that's precisely what we're
saying here that, you know, and that's why gold is, you know, furrows, he was actually more for
distribution, he was more independent getting terabit says, this is more you okay, and a lot of people
might think that's okay, I might not agree with this, you might not agree with this. Yes.
So this is, in this case, you have more of what's called relative poverty, right? Because your income is a
bit better. But you know, your neighbor has a much, much bigger so.
True, true, but I think your point is, well, and for a lot of people in society, a lot of people might, and I'm
not saying that's your opinion, but a lot of people might actually be okay with that. You know, as long as
you know, this is the best thing we can do. And you will see that there is a strong, strong economic
argument. That pretty much said it was he was even sort of labeled as an as a law of development
economics, that inequality had to rise. This was a new reading, and please do it so that on Sunday, you
can discuss it, inequality had to rise had to rise. In order for, you know, countries to become less poor
until it will go down. It was called the inverted Christmas, you inverted U curve, Kuznets curve after the
American economists. While American indicated economists Cousens. Okay. But in this case, so it's the,
you know, the toy line of The Economist has not changed, and it's pretty much that but in that case, the
argument is that they're they were extrapolating a little bit. They were using roles. And there was a
more detailed, actually piece in that version of The Economist that cited him and he would have
probably been rolling in his grave because it was not like we met. But there's a strong argument there
that to say that, you know, inequality isn't is a moral issue. It's a justice issue. That's not what matters.
What matters is poverty. And if growing the pie is what's going to reduce poverty, and if that means
rising inequality, then so be it. That's the argument here that first piece. Okay, we have to stop it's a
shame because I can see you're concentrated that we will carry on on Sunday. I wish you all a good rest.
I will see you I think on Sunday afternoon.
82
Thank you. Thank you.
Class 5
All right. So good afternoon, I hope you all had a good weekend. I would like to begin shortly, I also want
to specify that I sent you this email about attendance because I was essentially very surprised when I
said the number of students attending this class that was 53. And I never saw 53 students either on
Zoom or class. So no, I'm obviously I'm a visiting professor, I'm not going to police you, you're all adults.
But the difference between the number of enrolled students and students who are either in the class or
resume was a bit too much. So just, you know, the rules, you know, just just come, it's better for
everyone, if you are in the classroom, if you really can't, at least be honest. But again, I'm not here to
police. You, I think you're old enough for this. Alright. So what we're going to do today is we're going to
pick up where we were, which was moment, and we were sort of really digging into a foundational trade
off, that has existed for a very, very long time in economic development thinking. It's often called the
quality versus efficiency trade off. That's the name of one of the readings last time. And it basically, it's a
trade off between growth on the one hand, and equality and with the idea behind it is that even if
development economics should focus primarily on growth, and perhaps on poverty, inequality should
essentially be left aside, because it's a question of justice or politics. But if, in economic terms, inequality
is not something that development policy should focus on.
But even going further, it might be something that might be desirable from the perspective of economic
growth. So that's the arguments that we're really taking the time to time to unpack. Because it was
obviously important in history, and it remains very present today. To understand, Okay, so where we
were essentially was, so we talked about the idea that, you know, it really that for a moment, at least,
we think about development as growth. And we think about these are the best policies for growth,
there was an argument for a really long time that certain sets of neoliberal policies and globalization
policy, the privatization liberalisation opening to train whether were the were the right wants to go in
terms of reducing poverty that we're not these policies were deemed to be in a some people really
believe that's the best way to do that, it will generate growth and reduce poverty. So liberalize private
State Owned Enterprise get the state out of the market based allocation of resources. And we started to
look at the various kinds of arguments that are out there. So one of them which we looked at last time,
and which we can see can be debatable, and one may or may not agree with it was sort of a moral
argument, loosely interpreted from John Rawls approach with the idea that essentially, you know, if a
83
policy that raises inequality between the rich and the poor in a society can be better overall for the
poorest segments of society than other forms of redistributed policies, then it's okay. Okay, that was the
first. But there was another set of really strong arguments and theoretical arguments that I'm going to
unpack. Okay. So the first idea is that essentially, if you're going to proceed by trying to alleviate
inequality between the rich and poor by doing what's called redistributed policies, taxing, for example,
on the rich, to redistribute through public, public universal access to education or healthcare or through
cash transfers, for example, that the arguments was and this is still for some that this will interfere with
the market dynamics with a market efficient allocation of resources, which in international international
room is best offered by opening barriers to trade and in domestic terms by allowing for what's called
supply side economics by not taxing the rich and letting the market allocation of resources. The idea
behind that if you allow for open trade and if you allow for supply side economics, all of this will trickle
down to the poor. Okay, this is supposed to be good for the poor, and therefore, even in societies with
high inequality, but you don't want to do is to try to twitch in equality to change equality. Okay, so that
really is a very strong argument. Okay. The second idea goes further, it suggests that not only do you not
want to touch inequality, because it will interfere with those policies which are best to promote growth
and reduce poverty, either internationally or domestically, what you may want to actually do is to
promote inequality to voluntary allow inequality to even prosper in low income countries, because it's
supposed to be part of the development process. Okay. This is largely related to this, which you read for
last time, which is the Crusades curve, the inverted U shaped curve, right. But it says essentially, was an
observation, statistical observation by crisnet in the 1950s, suggesting that if you look at the evolution of
GNP per capita, right, the average income per capita over time, what you see is that inequality rises until
it reaches a threshold, after which it goes down. Okay, so that was essentially
what Kuznets observed. What's interesting is that after that I took who says servation slurry of economic
models in the 1950s and 60s, which are really important if you studied development economics, that try
to not only observe this, but explain this. For those of you doing economics, it's called economics,
economic modeling. So some theoretical models, which explain why this is and why this important we
should be. Okay. One of them is by an economist, famous development economic economist called
Nicholas Kardon. Okay, so let's unpack very briefly what he's saying. So, if we take this is development
economics, no one is it we're not going to get complicated, but just very simply think about
development economics, you know, the economy of a country as a cycle of inputs and outputs. Okay.
What do you think for those of you done economics or just from Formula? What goes into an economic
cycle? What are the inputs? Which inputs? What goes into an economy? capital, labor? Great, what
else? Okay, yes. Anyone else? Okay, so there's a variety of things. Yes, education, which goes, you know,
with human capital, so, technology, raw materials, capital and labor, this is just a simplistic version of
this input. And in very simplistic terms, what are the two main categories, which come out of a cycle, if
you put this in the machine, and then you get services and products, so that's one way to label it. But in
terms of you think about sort of, you know, you know, where and to whom this is going to go? If you
think of you put your labor into it, what's gonna, what's going to come to you, you know, after you've
been in the factory, the end of the month. Okay, what about if you have provided the capital, your
capital is you invested in the plants in the industry where the labor goes to work? What comes after one
or two years? Profits? Okay. So wages and profits. The big theory of development economics, remains
84
that it remains true today that very low income countries are faced with what's called a saving savings
and investment gap. Poor countries produce, but pretty much everything that they produce being
consumed immediately, for basic needs to attend the basic needs of the population. Okay. So what they
miss is a virtuous circle virtuous cycle in with the profits to be actually saved to be reinvested in the
input output cycle, they don't have the savings. Okay. And what's the theory behind development a was
precisely to try to bring aid from the north, for example, from USAID at the World Bank to close the
savings gap to provide the capital that is not there. Okay to invest, for example, industrial industrial
machinery. But what car is saying is that at the domestic level
what you need to allow For those who have this is an economic zone, those who have the highest
marginal propensity to save and reinvest those who have the marginal propensity to save reinvest,
which she qualifies as the capitalists, you have to let them have a larger share of the pie. Okay, so what
you don't want to do, you don't want to tax the capitalists, you need to let them have a bigger share of
the pie, you need to let inequality rise. Why? Because those capitalists are going to cover in this many
arguments, since they're in the same vein, they will get profits. And rather than spending it, they will
have they will, you know, they will put some in savings and put them in the pocket. But the idea is that
they will, they're the only ones that will actually be able to take this capital and reinvest it in the
machinery to close the savings gap of poor countries, you need income from the outside, but
domestically, you don't want to tax them, you let them have more, you need to let inequality rise,
because they will reinvest and eventually that will go down. So that's one really strong expectation. And
it's at the core really core of this fundamental, really fundamental trade off in economics, which was
called the equality versus efficiency for the economy to be efficient for an input output cycle to be
efficient, you need to put the quality aside, because this needs to happen. And therefore you don't want
to tax those who have a marginal propensity to save. So what I'm saying here should start echoing with
some of the ways you can ask questions about this. A bit late, okay. Everyone with me? Okay, great. So,
quality is perhaps temporary, maybe it's even necessary, because it's, it will allow for faster rates of
growth, which in turn, is the best way to reduce poverty. In the economist, you could see the various
articles, which I gave you for last time, you can see that they're talking about China, they will say, Yes,
inequality in China has risen. But maybe that's what needed to happen. Because it was temporary, and
maybe it was necessary, things must get worse in terms of inequality, before they get better. Okay, that
was a consensus for 20 years. Is that the end of the story? We all have to do with this. Do we think there
are models since then that are questioned to this? Yes, no. Okay, so, you know, end of the story note. So
there's, there's new models now that are showing that the Crusades curves, if you look at it, first of all,
because that's, you know, was an observation based on empirical data, looking at the past, and now
with, you know, 40 more years of empirical data it, you know, it looks a bit more like an N, this, this, this
curve, it's not a it's not a U curve. And there's a strong if you see the difference in The Economist article
last time, maybe from 2006 to 2012, the beginning of the article actually says this, it says there is less of
a consensus about the Kuznets curve, about the fact that you have to let inequality rise as a dogma,
okay? It's not a law. It's not It's recognized empirically, we can see that it's not a lot because there are
examples in which inequality rose, so you were supposed to be on top of that business curve. But what
happened today there never went down. Okay, Latin American countries, Egypt, Middle Eastern
countries, many, many examples like this actually contradicted the theory of Condor closeness. Okay. So
85
that was a you know, a really contribution. The names if you're interested enough to have your cornea,
Nancy Burstow, which was one of the readings you had for today, which really did a lot of empirical
studies showing, actually that it didn't happen. And on the contrary, the examples that are given,
including by Nancy Burstow, Amartya Sen, and others that many countries would actually low levels of
inequality. So you know, a low Gini coefficient, what actually able to generate fast rates of both
economic growth and poverty reduction through economic growth. Okay, example that is often cited by
those economists is South Korea in the 70s 80s, for example, and other countries in the region.
So the basic idea, then, is that you don't need to have equality You do have books. Okay. That is been
the consensus that is quite clear. Now, it's not an iron law anymore. It depends. And actually, going
further, there is now empirical data here for models, including coming from the IMF. This is 2018 2016.
It's quite recent, that income inequality, not only is something that is needed for economic
developments considers growth, but actually the country's income inequality is now seen as a constraint
on two different things, two separate things. First, inequality within a country is seen as a bad thing for
growth. Why do you think this top of your head? Why would inequality be a bad thing for growth?
Of course, the concentration of resources access to
okay, just hold your question. So related to what you just say. One of the drivers of economic growth is
what what are the what are the drivers of economic growth? So those of us I'm sure there's some
people here, economics, what are some of the drivers of economic growth, you know, the curves that
you probably drew in your classes? And I believe no one's consumption. Okay. Consumption
consumption depends partly on the size of the markets. So if you don't have a middle class, a large
middle class that has access to consumption goods that can actually consume, it's going to reduce it
dramatically. Growth. Okay, so that's one of the strong arguments. Sarah, yes. Your question. Yeah.
In essence, understanding your call like receiver discussing, it needs to reach an inequality pretty come
down. So are there any countries like any European country, like Brazil actually said that once this
happened, they, it was the way I see it, especially in Asian countries, African countries, be inequality,
even if it reaches a threshold, it just keeps on increasing like the divide. And and that is like, a cost
effective growth while per capita, because the rich are getting richer, the poor, still poor, and we discuss
it, since the start that economic like fruit should not be just like, don't measure with, like the income or
other factors. So when inequality is increasing, how is this a good measure or like?
86
So what a great question, what I'm telling you now is actually that this curve has largely been dismissed.
There's precisely data, both from countries in which as I say, inequality kept being there kept rising. So
there was an empirical proof that this doesn't work. Or examples where it goes up, it goes down, it goes
up again, including in some European countries dependent on neoliberal government in power, and
then it goes back, if you look at Brazil, it's going up and down. But in terms of China, for example, the
argument about China is that yes, inequality has risen. Some economists will, they will say that's actually
a bad thing. But others will say, well, Danny Roderick, for example, at Harvard will say, in China, you
have a, you know, a real transition from a largely agricultural society to a big urbanization and
industrialization. So you started to have, you know, large inequality between, you know, agricultural
households and new urban centers, industrialized urban centers. And, you know, according to what he is
saying, Roderick, it's a warning that comes at the end of this is that there's there shouldn't be an iron
law. Now. It's all contextual, and has to be looked at, depending on the economic, institutional
trajectory. Right. So what he's trying to say is that is that there shouldn't be an like there wasn't an iron
law, stronger that you needed inequality in order to have growth and reduce poverty, there shouldn't be
no law, that in reducing inequality is always good. So he warns us this is going to be the finishing
warning here. He wants us that we shouldn't go the other way and Institute's a very strong parallel to
that. Yes. The other other measures, you're absolutely right. But I'm not really focusing on the the
arguments that are visible in development economics, in particular, and in the sort of the more
contemporary economics. So, income inequality is largely now seen as a constraint on both because
largely of the question of the size of the market. And second, what you call the ethnicity of poverty
reduction growth, or essentially, the ability of certain level of growth to reduce poverty. Okay. And the
argument Here is to say that not only income inequality we're talking about income is bad for growth, it
will actually be bad for the ability of that growth, to reduce poverty effectively. And there were
examples in the meetings that you had for last time for development bank's showing how, you know, if
you had had lower levels of inequality within some countries, you would actually have had 200 million
people, poor that have been, you know, taken out of poverty, as you said, any economic terms. What do
you think is the argument here? Why does inequality Why would inequality be a constraint on the ability
of growth to reduce poverty?
Thinking about? Anyone.
So the argument has been made by all these people who was new reading, Kanye Sanders, this
argument. Also, it's an argument that is more of rather than, you know, consumption and size of the
market, it's a what you call a political economy arguments. But it basically says, and I'm very, really
simplifying it here is that if you have high levels of concentration of economic power, concentration,
economic power, impurity very often relates in political power, to power to the financing of parties or
87
super PACs in the US are lobbies. So there's a sort of a, you know, if you allow an elite to get more and
more powerful economic, it will translate politically, which means that the poor segments of society will
have a hard time politically to make demands on the redistribution on, you know, cash transfers for
them, either through democratic Parliament or through their influence in lobbies, or regulation boards.
So really, it's a political economy argument that, you know, some some some people have argued that
this has been the case in the US, for example, for a number of years, but you have many other examples
in which this seems to be, you know, at least an acceptable way to, to pick up on it. But to finish on this,
Danny Roderick, then you run like is a political economist, based at Harvard, he basically tries to show
how it's with a K, I think, K I think it's just a case. To show that we have to be cautious, we now have to
look specifically at country by country, the trajectory, the institutional economic political trajectory, in
order to see whether promoting more redistributed policies talks about Brazil and Mexico as examples
in which it was largely needed. Because once the Lula government in Brazil started to redistribute social
policies, there was both growth and quite important poverty reduction. Same in Mexico with what you
call the familiar which were these conditional cash transfers to family families, which were invented in
Mexico and, and then also widespread in Brazil and other countries of the world. But when talking about
China, for example, he says, Well, China, maybe a moment of, you know, difference between urban and
non urban household income levels was perhaps a necessary part to really allow for growth to happen
inward to massively produce, produce products. Some people disagree with that, they suggest that you
know, you know, passive poverty reduction in terms of income that you had in China could have gone
the other way, and could have gone without, you know, a big steep rise in inequality. If you look at the
inequality database, it's important to talk about the other day, which, you know, some of the proportion
of wealth and the lowest income share of the population in China is now lower than that in France, for
example, compared to some of the richest segments, so there's this weakening plastic rising inequality.
The same is true for India. Okay, so everyone, more or less, okay with all of this? Yes. Okay. So what
we're doing now is shifting to another, slightly more historical, but we're still looking at these
foundational trade offs. I just gave you this notion of a trade off between the quality and economic
efficiency. But what we're going to do now is to look at how all of this was framed in the history of
economic theory, and human rights thinking. And we're going to every time we're going to do this, we're
not just going to be historical, we're going to address contemporary issue that ask your questions about
how this relates to current examples. I want to begin with a moments in which a very foundational
tension in the link between development and human rights is articulated. Okay? So one of the key
tension at the core of this class is the following. We ask whether development conventionally GNP, GDP
per capita or more extensively, human development, etc. That's it sometimes always produce human
rights abuses,
does develop at its most basic level, tends to tolerate, you know, with human rights abuses, because
respecting human rights would slow growth. And therefore, we should continue to trade put them aside
deprioritize human rights in order to achieve the growth that some would say poverty or inequality in
aviation requires just starting to discussing this in terms of equality notion, but what I want to do now to
really look at how exactly this was framed in history. So those are some of the questions that we're
going to we're going to look at today, I want to talk about the essay you need to read for today by Jack
Donovan talks about the need for quality liberty. We're going to talk about modernization theory. And
88
we're going to talk about Huntington to some extent. So, first, a little bit of a historical introduction,
okay. So the moment that we're looking at is post World War Two, post World War Two is the beginning
of development, development, economics, but more more generally, you have a field studies or
development theory. At that moment, and from there on until quite recently, human rights and were
framed and conceptualized as being very different. And pretty much one against each other very much
in this notion of trade offs. Very often students will take my class and a few years later, when I meet
them over coffee that I can remember one thing from your class, the notion of trade, if you like. It's an
important notion. So if you think about how both human rights developments came up in public
discourse, and this isn't a coincidence, both of them were articulated once. You know, most
commentaries talk about these two moments by Democratic democratic American presidents in the
1940s. So Franklin Roosevelt, in his 1941, State of the Union speech, talk about with the famous he
talked about what's called the Four Freedoms, he said, laid out in American social democratic vision of
human rights, which he aspired for everyone. And that included, of course, political rights, and included
some notions of Freedom from Hunger, for example, something that included economic, social, and
cultural. And the notion or the metaphor of development was actually first articulated by Truman, in his
1949 inauguration speech. So when he became President, this is really the first time in which the
concept of development, remember that notion metaphor that we already looked at, came up. So well,
you know, this is true, very quickly, both development and human rights important, very different
pathway. So to make it quite simple here, institutional level seven was going to be the focus of
technocratic economic technical people at the World Bank, to a certain extent at the IMF, or what's
called bilateral development agencies, USA ID, for example, as an example, as human rights were the
story and the stuff of the US with all these diplomas, these legal experts talking about, you know, the
Universal Declaration, a treaty, the optional protocols, to different protocols, etc. And I'm saying, I'm
exaggerating, but really, this is important to understand it for development. People develop human
rights, complicated and political, and was tainted by the Cold War, and they wanted to appear and
thought themselves as relatively rational rather You know, thinking policy analysis people versus
lawyers, even philosopher or political activist on the other. So developments as technical as relating to
economics as a strong, you know, just strong social science versus human rights, which could be seen as
slightly moral or perhaps legal or ethical. Okay, so there's a company, which is actually still very present
and there's a, you know, fight by some lawyers within the World Bank. We'll talk about this as an
example to try to sort of talk to develop economist and it's okay, up to date. Hey.
So in terms of development thinking, reading, I guess you Vice Rostow, we will go back to rosters
importance and significance is part of what you call the development era. It's the 1950s essentially, a lot
of non communist Western economists trying to essentially follow a two minutes and provide a model
kind of a recipe list of you know, how do you develop and a lot of it was so that the non communist is
important, because the idea was to basically quickly provide countries which were perhaps susceptible
to communist influence and thinking about Indonesia, Vietnam, before the Vietnamese War, you know,
a recipe so that they would actually grow and modernize modernization theory was the first of those
theory Rostow is one of the founding fathers, so that they would have an example that could be
supported by the West and they will not go under the influence of the USSR. Okay. And for many of
those economists from this development, that is, from the modernization to be human rights are largely
89
similar political rights. Remember, they're not communist, they're not really bang up to economic, social
and corporate, it's about civil and political rights, and it's something that should be pretty much set
apart. Okay. So before we go back to modernization, when to use is the thinking of what we're gonna
relate all the readings together, Jack Donovan, so Jack Donnelly was this essay on human rights,
democracy development, okay, it's, you know, jumped on in these is a political scientists, political
thinker, liberal American, but this essay really does a good job, I tried to sort of show how these
different trade offs which are here to be articulated. So, to begin with, Don, okay, what is one of the first
thing that he calls on us to distinguish, put aside development for the forum? What else does he talk
about? I just gave you the title of his essay. What does he talk about? He talks about we need to be
cautious between the difference between human rights on the one hand and what else exactly do you
want to elaborate What did you say? What did you say about that? You can all your links
are linked to human rights as much as you can democracy is human rights our speakers, okay. Basically,
everyone kind of associates rights are the same way as you are limited on how much you care.
If you look at theories of democracy, if you look at John Jacques Cousteau, for example. In France, he
says that democracy is voluntary, as a general will, should always the people sovereign will always be
sovereign. Right? Whatever the majority decides is good for everyone. And the notion of human rights
about this, remember, remember that the Germany laws were the expression of the majority of the
world, right? The will of the majority, sorry, they were elected, and they so the idea of human rights to
put a break on this is to say whatever, even if it's the democratic world, there should be minimum
guarantees that allow for it individuals, minorities in particular to be protected through constitutional
and very often, judicial means, right that there is a regime of rights that allow the can be adjudicated
through a judicial process that will protect individuals or minorities against will have the majority. That's
the difference between democracy, electoral democracy, and a liberal democracy in which you have a
regime that will actually make sure that individuals and groups are protected from the will of the
majority. So that's an important distinction, which relates to what we talked about human rights as
something that is imposed from above and that, you know, puts a brake on what a country and will have
its majority can do to inhabitants of a country, there are some limits. And the important notion here is
the notion of the judicial review process here to safeguards. The other thing that he does is to try to
show analytically. So let me ask you a question. Those of you who read this, do you think that Donald D,
sort of relates to that first question here? You think Donnelly suggests is for the idea that human rights
should be traded off? And the development should be given clarity? What does he say about that? Yes,
he is not for it. He claims the phasing of development of development in terms of political policy choice
to phrase development in terms of limiting.
90
Exactly. So what he does is to say, and so that it's a quite a subtle, little Amartya Sen. Will see Amartya
Sen. conceptualizes development and human rights as being one in the same thing, okay. And he's not in
vain. No, they're actually they are tensions between human rights and development. And he's going to
explain three different tensions, which we're going to talk about in a second. But his argument is that
there are tensions are not the same thing. Conceptually, they're not the same thing. But human rights
should be used as a break. So first of all, as a break on democracy, as we've seen on the majority of the
world, the majority, civil and political rights, but economic and social rights should also be a break
against a market based allocation of resources as development, thinking in terms of growth, okay. So
similar political rights as brakes on sort of a democratic will of the majority and Economic, Social and
Cultural Rights has brakes on the way on thinking about development as the markets. So that's
important. He has a very specific vision, which, which is, you know, likely informed by his own vision,
which is quite specific. But in terms of the way he tries to combat these trade offs, he talks about three
trade offs. I should have asked which one you would obviously told me, these are the three trade offs
talked about I went too fast. Can someone try to explain to me what I meant by all of these? Or at least I
want to, but what about the needs trade offs?
We got to take the resources, and instead of four, in order to provide them the basic that they have.
Would you send effects to create off capital?
Okay, great. So you made a combination of both here, okay. To distinguish activity, if you will, and the
nice trade off relates to the idea that poor countries any he's not saying that he's agreeing with us, but
he says this is development economic development, works is the beginning of the two sides. He says the
first idea relates to this notion of you know, savings gaps, which I mentioned the equip of good cycle,
what poor country needs to do, rather than spending everything on the consumption of basic needs of
his people is to try to sort of, you know, not to that not address the basic needs and try to find a way to
have you know, the products that the economy reinvested in the input output. The inequality equality
trade off, it goes a bit further and it relates to what we said earlier, right. It's essentially the condor is
that not only do you need to forego you need to let go of the idea of immediately giving people what
they need. By for example, you know, is shrining in your constitution? This is where pretty related Right
enshrining in the Constitution the right to sue the right to housing because that would immediately have
to be allocated for. So you don't want to do that. That's what the needs cleaned up do the quality trade
off was further it says what you don't want is essentially, for example, if that is article 12 of the icescr.
Okay? The rights of everyone to the enjoyment of the highest attainable standard physical and mental
health care. Remember that we've seen that it's not this should not be interpreted only meaning
redistribution, in order to allow for everyone to have access to universal health care, he taught me
nation the obligation to respect your condition to protect okay. But for better medical artists, this was
91
quasi communist. Because if you read this the creation of the conditions in which would ensure to all
medical service and medical attention in the event of sickness, what document if you want to translate
this into your constitution? That means you wouldn't have a welfare state? That means you want to
finance the welfare state? What do you need to do? Tax tax, tax the rich, and that goes precisely against
the idea of condom right idea that those who have a marginal propensity to save and invest should be
left free to do so if you tax them, you're going to stop growth, you're going to stop growth. So the
equality trade is essentially we've seen it's the efficiency versus equality idea. The same thing. Okay. So
those are really the the three, the first two sorry, trade offs that he talks about. Now, the Liberty trade
off? Is the Liberty trade off, we haven't really gone. We've talked a little bit about this in the last two
classes, but not really, what is the Liberty trader? What is this talking about?
In order to achieve a certain developments, efficient development, development goals, that goal can be
stopped or slowed down by civil liberties. So to take an example, that company has never heard that the
President needs to raise scheduled retirements, yes, from 62 to 65. Yes, let's say that's the revenue, very
common that people are gonna rise up against it and they're gonna demonstration. unionizing wherever
they can to stop me, it's so easy for the presidential spends on the party's knowledge to be able to
achieve his plan.
Right. Exactly. electoral cycles, the ability for people to unionize. The fact that there are cycles, it's short
term, so you can't win nine, four. So yes, it's exactly that is the idea that in order to generate high levels
of growth, not only would you try to refrain from, you know, applying a welfare state, you know, in low
income countries, but what you needed to do, and that is still very much agreed to by a large number of
countries today. You need to basically put a boiling water into the cover, at least for awhile on civil
political rights, we need to put them aside. Now, the theory behind it, and this is where hunting. So
that's who here has heard of Huntington semiconductor? What is it known for? Its clash of civilizations
clash of civilizations, okay. Did anyone get a chance? It was an optional reading to read what Fukuyama
students had to write about Huntington and how he took on battlestation theory. Oh, well, if you
haven't, it's interesting read. I'm sure on a beach on a Saturday. That's what you want to do. So it's
interesting to know, and I'm going to get a bit of a couple of things about him.
What Huntington says is essentially this, he says, with the modernization process, which which Rostow
games Vasa was the first meeting you had, it's a recipe of how what he says essentially, is, you know,
first of all, Huntington directly agrees with this idea of needs and equality, right. He talks about the
importance of having a group of people that will have a high marginal propensity to say I completely
agree with that. But he goes further, he says, he also talks about directly about the Crusades curve,
which was at the time it was seen as the thing. So he said, you know, inequality rises, he says, with
92
development or what the time was called modernization, inequality rises and instability rises with it.
Some are richer, some are poor, some are looking at their neighbors, their social unrest that comes out
of this process in which inequality rises. Okay, and we can think about China as one. But he says is the
most important variable for development to succeed. Regardless, at the time he was looking at both
communist nonfat ministry is what he calls political order. political order, according to Huntington is the
main key the main engine to successful modernization. So when he says essentially, him at the time
completely agreed with the Kuznets curve with the idea of, you know, development within inequality, all
of this would breed instability. And he says, essentially, that this is bad. So what you need to do is to put
a lid, at least temporarily, on this potential social unrest, you don't want to push people to unionize
people to be able to take you out in the next electoral cycle, you don't want to free press, you want to
put this to the side. And you need to do it, perhaps temporarily, but you need to agree with the age of
what we call an authoritarian developmental state. He's a theoretician of Western theory of the called
the authoritarian developmental state, I'm just gonna give you a few quotes of them, you don't have to
hide them, but just listen, okay? political order is needed for both political, economic and social
modernization. So you need a regime that can handle the consequences of change, and the aspirations
coming from modernization, and notably, the social economic impact and the social demands that arise
from various sectors of the society. The relationship between social mobilisation and political instability
is basically the urbanization, increases in literacy, education, media exposure, all rise to more aspirations
and expectations, which, if they're not satisfied, will galvanize individuals and groups into politics. The
absence of strong and adaptable political institutions, such increases in participation means instability
and violence, which are the enemy of modernity breeds instability. This is a famous quote, It is not the
absence of modernity, but efforts to achieve it, which produce medical disorder, if poor countries
appear to be instead of the poor that because they tried to become rich. So that's something so you
need an authoritarian transition, you need this liberty trade off, you need to put civil political liberties
aside. And if you think about that, basically that the instability created by that justifies this liberty, trade.
Okay. So what do you think about that talked last time about some examples? Do you think that's
justified? Can you talk to me about examples of countries today which you know, agree with this? What
are your thoughts on that? He writes was he always writes Yes,
I like sort of evolving a lot throughout the world, especially when we saw there was a rapid increase in
right wing like powers rising everywhere in the world and peoples and everywhere else like because
there has to make it like this stagnancy of the economy has prompted everybody to solve this, this will
allow for this liberty to essentially like, I mean, as always, in India, that everybody, even if the
government is like, you know, like, that is the constant violation of rights of minority communities. And
with the UK coming up with new codes, every single dialect, which is what they are, and why we would
guide especially the gig economy across the world, that is the biggest like example of the body trade
offs, because we can dismiss that if you have gone out of the meeting people your employees choose.
So that is in developing the site across me.
93
Sure, exactly. So you know, this is not just history. This is what I want you to imagine. It's a very good
example and India in this current regime is definitely an example. Of course, strong, strong defenders
but you all A range of political or self called illiberal regimes, which are trying to serve. What's really
become interesting is you've had in the same translation transition, sorry, from one model, which in the
1980s, and 90s, for low income developing countries, which was the Washington Consensus, essentially
near liberal policies promoted or imposed by the World Bank, and the IMF, to what others have called
the Beijing consensus, right? The idea of, you know, some form of states that capitalism, right, but with
a very strong Liberty trade with a very strong restriction of authoritarian regimes. So this is very, very
much state. So what Donnelly is introducing to talks about precisely Yes, sorry.
distributions, trigger response in my head because it inverts all. Strength positions, on institutions.
Nigeria, I think she mentioned, she doesn't have strong institution of education. So even if there isn't the
person for institutions are corrupt, and whatever. So.
Persons? Yeah, so Exactly. It's what's interesting, sort of, you know, one other way to look at that is
what we talked about the other day, Acemoglu, and Robinson, right, which is now sort of a really big,
you know, dominance model in developed economics talk about the importance of what they call
inclusive institutions. So institutions which are strong in the way they communicate, we talk about how,
for example, China has economically, you know, an economically inclusive sort of institution, which
wouldn't be necessarily for Nigeria, because of issues of corruption, in this case, by they talk about the
fact that political institutions also have to be inclusive. So they bet that the current Chinese model is not
going to sustain in the long run with in some way, Huntington, you know, talked about most of that, but
for Huntington, it was meant to be a transition. Right. And authoritarian transition. So he never, you
know, he's a political crisis is hardcore, you know, value necessarily democracy more than then the USSR
regime at the time for the Chinese. But now that he, you know, talk about the idea that a little bit like
the Crusades, Kurt mentioned, the idea that, you know, a project, right, and he talks about the fact that,
you know, if he doesn't get out of the idea of modernization as a teleology of progress, and he suggests
that it's, you know, that that authoritarian transition, maybe just, you know, transitory, it doesn't
necessarily it doesn't, it's not necessarily the model, but he was used, of course, to suggest that there
should be only one model, and that that model should respect human rights. Because of this theory, the
idea that, you know, you need political stability. The other two, three arguments. The first one is you
need political stability and self here today. The other was to say that empirically, and that and he points
to that those arguments empirically, if you have restrictions, and civil and political rights would create
faster rates of economic growth. And what Donnelly Amartya Sen are saying is that the causal
relationship, it hasn't been this debate, the economic debate about how the restrictions in civil rights
and economic growth in terms of income is not settled, you still have every year economist from China
and the US who are battling over, okay, I will give you a few names in a second. But this is not set. But
the third argument under which the restrictions and civil ability, right, so the idea of, you know, Liberty
trade offs for transition, and to avoid political instability, the restrictions are similar, but are very good
94
advice, because it would lead to higher rates of growth. And the third one, not everywhere was an idea
that, you know, civil and political rights in particular came from a particular part of the world, Western
ethnocentric liberal Western vision, and that, therefore, countries need not to take them into account
and to develop their own cultural understanding of human rights and that I'm referring here to the
argument of the Asian values, for example, that Lee Kuan Yew at Singapore develops and that still is very
much, you know, in the corridors of the UN, for example, but there are other regions of the world
there's now also an NPR arguments relating to Okay. So, what Donnelly and other liberal thinkers that
we try to do is to unpack to go against all of these arguments and Donnelly and center, basically, you
know, this size Huntington and he's embarrassed, because, you know, this is, you know, it's true and
there are arguments, you know, for and against, you know, can if you're going to have, you know, if you
need to, to transition today, ecologically to zero emission. Policy for examples, there is an argument out
there that if you have a very strong centralized planning power, that doesn't have to consult people,
when a raised your village in order to, you know, raise the factories that go with it, or if you're going to
completely alter the tissue of economic production, there's an argument there that, you know, if you
have a strong authoritarian government, it's going to be faster than the millions of debates you're gonna
have in the US. Right, so there's an argument, there's an argument around COVID, we will discuss this,
who is better placed to fight COVID? Is it what China's doing right now? Right, this minutes? Or is it what
the US has done? Okay, so, you know, we could I love to debate this more with you. I don't think there's
one line that, but in terms of the the readings that we have, the most important
contribution has been essentially to try to show that the empirical linkages between suppression of civil
and political rights and economic growth are not necessarily always true. Okay. And there's a number of
authors, which I think I can give you here. Example one, which was less talked about now, but was about
a decade ago, Danny Coughlin, you FMA and was at the World Bank, he showed empirically, that there
was actually no causal linkage between authoritarianism. And he defines it in very specific way and
economic development. On the country, he tried to show him buki that some level of good governance
lead to faster rates of economic growth and in his notion of good governance was the notion of voice
and participation, different means. Rob Robert Barro be a RR o at Harvard's also showed empirically in
the big study that if you move from a repressive regime to more democratic socialist regime, you
actually have faster rates, economic growth, and I mentioned also a Acemoglu and James who make
sorry, blue and Robinson make strong arguments
about that. Okay,
any other thoughts about this, especially the Liberty charts about what you think about it?
95
What is the quality trade off at the Liberty trade off the support of traders, the claim is that the market
will make sure that eventually the curve starts coming down with Liberty trade off. So Turing machines
don't don't relinquish power. They think that's gonna happen,
we can see but you know, in Huntington was criticized for that. I mean, if you think of Huntington, his,
his, if you read them carefully, he talked about the transition talks about the transition, it doesn't just
says, you know, the, the empirical reality of when and how that transition will stop. And contextual
contingent five variables is a very easy answer. It's very theoretical. But but his arguments, you know,
are up to today. And if you think you're going to get these examples, how do we do it the logical
transition? How do you deal with a pandemic? The question of, you know, if the government has all of
these, you know, interest groups, free media electoral cycle, is it going to be a good thing? Or is it going
to hamper the ability of government to go fast and quick? So I will say one of the strongest empirical,
theoretical and empirical counter act hunting this Amartya Sen. Will, we'll see exactly how he goes
against just ideas, uses, in particular the notion of foods in democracy in this example, so that's that's
one theoretical answer that but I agree with, you know, it's it's, it's there and there's no there's no
strong you know, it's on our show. What's really interesting if you think about the, what's called the
Arab Spring, in early 2000 10s, partly related to the repression and similar political rights, but also to the
rise of food prices in Egypt. For example, that was the case, often revolutions are about the price of
food. So we'll see what happens in the next few years, actually. But what you had, it was a reaction. I
remember to this day, Hillary Clinton, the Secretary of State in the US, When Mubarak was being
challenged, and kicked out in the hair square, she came to the TV and she said, What we need is order,
or hunting, or what we need is sort of stability, we need order, we don't need this mess. Of course, you
didn't know whether she, you know, support or let go in jail, her strong ally, Barack in the Middle East,
his idea of sort of, you know, a very strong idea of stability as a, you know, something that is good for
economic development is very much completely yet. Besides that, you know, Chinese is up in
consciousness of a large number of policymakers, including in the West, yes.
The Arab Spring generated a huge increase in human rights.
This was at the time, right? At the time, the idea was, it's going to be a revolution, and there's going to
be a revolution, we know exactly what's happening yet. It didn't happen. But the argument at the time
was, you know, there was really a vision that there was a, both a democratic and device based discourse
that was really trying to sort of, you know, these trade offs were completely happening, and inequality
was still there without any form of growth. And you had a very strong civil political repression. Egypt was
really a basket casing for which these traders were not just transitioning, but they were sort of you
96
know, they've been there for four years. So the idea was, you know, there was a call and there was a
certain liberal elite in Cairo, which was pushing for a, you know, completely overcoming these trade offs.
But we know that for various variety of political reasons, it didn't happen in the discourse. It's actually
interesting to see that these ideas were present. Okay, so now feature to Russell. So Rostow along with
a number of people like Arthur henchmen, Arthur Lewis. So rasa was an American economist and
historian. Right? It's important because he looks at history in particular, to provide this little book,
there's almost a pamphlet was called the non Communist Manifesto, related to the idea that there was
sort of an emergency at the time to sort of provide a non communist avenue for modernization. It draws
what does it draw on? What do you think what's the example that Barstow has in mind when you
describe this almost you know, it's like a cooking recipe you do this you have one stage can anybody try
to first of all tell me what you think? So it wasn't the actual reading one of the options reading explains it
what do you think he was basing himself on what historical spirits in particular? And what are the
different stages that he talks about? How does the country modernize according to the roster so let's
start with the first question yes
I'm not sure but I think like in some way kind of the Industrial Revolution
Great Britain is right the Industrial Revolution. Looking at of course, this is part of the critiques across to
you know, it's a very, very specific recipe, but it looks at these different stages and it tries to buy a
universally usable models, okay. What are the various stages what which ones do you remember? How
does it work? To drive to maturity, etc. Okay. So yes, there are a number of stages starts I'm not going to
go through all of them because this is something you have to be okay. It starts with traditional society,
right? The agricultural society, and interestingly talks about the fact that it's not touched by modern
science, and by the technological advances, which allows for man to regularly menu manipulators
environment with economic advantage, okay, so, theory. At the time, the idea was really for men to
manipulate the environment for its advantage Very much so. Then there's the notion of precondition for
takeoff, destruction called the destruction remember this notion of development, something violent
destruction of traditional society. He talks about The idea that will be this is important and external
intrusion by more advanced societies. And this, what could it be referring to? Colonialism. Okay. And so
it created and roster was both criticized for opening a debate about what he meant by that. And can we
talk about the benefits of colonization, you have endless debates about this in person in France, for
example, of course, the oppressive and exploitative nature of colonialism. And he talks about that as
part of a story and the way USA ID or the World Bank interpreted this was like, well, we're gonna help,
we're gonna give money, right? We're not gonna call it, you know, these, these countries, we're gonna,
we need to help them, we need to provide technical assistance, we need to provide cheap loans, or
even you know, provide direct funding. So that was the and what's important to remember is that the
term developer was seen to be a something that was technical, it would happen in 1520 years, breaking
took 100 years, but now we know how to do it. The idea was, like, follow a recipe, and it won't take
long, really, that's what people thought take off in which both becomes a normal condition, there's
97
important gains. So in the reading of Colorado frausto, you see directly the influence of what I talked
about earlier, he talks about the TechOps moment is one in which the increase of income in the hands of
those who not only save at high rates, but place their savings at the disposal of those who are engaged
in a modern sectors activities, Dr. Cardone, right, a new class of entrepreneurs, that's at the moment
you have it. So you need to be be endorses these two things, and especially the quality trader, as does,
okay, need to forego consumption, a need to accept a rise in inequality. That's the link here with
economic, social, cultural. It's also coming in we have commodification, you can translate everything
into tradable goods and services, you then have a drive to maturity, and then eventually, you have to
have you have the age of high consumption, the age of high consumption is the only moment when
which you have the reduction of poverty. So this is finally reversed. Okay. And he also talks about the
fact that it's at this political post maturity, so already well established, developed society, that you have
two things. First, is the first time they talked about a political process. So civil and political rights only at
the end, I remember this idea which I mentioned the other day, that there was a strong idea for
economists that all of these things have to wait until a really long time is there only at this very modern
vision of society that you have a political process, which means Civil and Political Rights, which will allow
for the legitimacy, the voting in of social welfare, and Social Security, in which you finally will have a
district redistribution of income. Okay, so very much an endorsement of all of these trade offs until the
end. So, car door, endorsement of boost net and endorsement that is trade off until the very end. And
this roster was really, really, really, for at least 1520 years, extremely, extremely influential, influential,
because it bite us sort of a quick recipe. It talks about colonialism. It talks also, that's it, that's a credit to
him about what you call a political economy. He was one of the first one to introduce political economy,
which is essentially the interaction between historical economic, political dynamics. So he talks about all
of these things, you know, having to be studied rather than just you know, economic curse, and also was
really a guide. It's Fukuyama says the peace universe of how the bureaucrats of USA ID the World Bank
designed development policies for for quite a long time. Okay, questions about Roscoe? Yes?
No, no, this is a time the book was published an entrance. Exam syllabus
was the 1960s I thought it was I thought it was a bit earlier. This 1960s Okay, so I'm sorry about this.
But then the by 1960s colonization would no longer think respire
right. Well, so got modernization development, modernization approach. is to develop and thinking. So
Huntington is 1968 to 69. I can't remember his book. And it's sort of a first critique of modernization. But
98
the theory that was still sort of captured here in this in this pamphlet starts really in the 1950s. Before
that this is a way in the moment in which he crystallizes that as a recipe, but it started to do it, you
know, before that, apologies for that. But modernization really started in the 1950s, and carries on until
the 1960s. What happens after we will study this next time is still a very strong idea that you need to
modernize, to follow stages, but slight difference in the kinds of policies which would be favored to do
so that is what you have in the 1950s. And 1960s is a strong push by USA ID the World Bank, to some
extent, Western donors, and you know, the more and more countries become independence during
decolonization in the 60s, starting in the late 50s. And mostly in the 60s, you have more and more of
that recipe which is applied. So you have a lot of a comes in. But the recipe economically is to really try
to grow, modernize go through all of these stages by but largely by drawing on your natural resources
and open yourself up to trade. Okay, this was seen as something that really was the way and you know,
a lot of critics would say, well, many of these countries will become independent, we're already working
like this, when they were under empire, they were seen as extractive points of extraction, in which, you
know, many of the natural resources would go in the empire, the, you know, metropole and be
transformed into manufactured goods, so that the recipe after independence for many of these
countries, but also for already independent Latin American countries, is to say, Okay, we need to
modernize, we need to follow these days to endorse all of these trade offs. But in terms of economic
policy, what you need to do is to extract produce and enter what's called the global economy of trade, in
which what you have to do is to try to produce export what you can produce an export at a comparative
advantage, right. Ricardos theory for those of you know, this is the neoclassical economic theory of
trade. Okay, which dates from Ricardo, much, much earlier in Western Europe with that recipe, so
rosters label with Ricardos idea, very simply put, what Ricardo was saying was the following thing, if I
remember correctly, the examples that he used with that both England, Portugal could produce wine
and clothes. But rather than both of these countries, producing and trying to export wine, and what
makes the most sense economically, is for countries to look at what they can produce at a comparative
advantage that they can produce more cheaply, and choose that products to export it because they
would have a comparative advantage. And then Ricardo is famous example, Portugal can actually
produce more cheaply because of the cost of labor in particular and of raw materials, it can both buy
and clothing more cheaply. The recording point was saying, well, if everyone is better off, if Portugal
does wine, and England, clothing, and you trade with each other, and it shows us through a number of
formula. Okay, is that clear to everyone I was gonna go go into this next time, but it's essentially, if you
look at it relatively, I hope it easy to understand, every country needs to focus on what they can produce
and export at a comparative advantage on broad markets. That's how low income countries newly
independent countries will be able to take off and grow eventually. Okay. But what happened at the end
of the 60s and in the 70s, is that you had a slightly different school of thoughts, including by Latin
American economists, route Pravesh, Dr. Ed Ishs, sch being one of them, who looked at the structure. So
many of these were Economists also have a number of sociologists which started to add to the structure
and empirically that you know now, about 30 Because of empirical data, and none of them, and they
just the following, they said that essentially, if you have low income for developing countries that are
being asked in order to grow, being funded even to help growing by producing what's called primary
products, natural resources, agriculture, essentially, while richer countries should, you know, exchange
99
with them what's called manufactured goods. So, you know, an Asia would be independent, be enticed
to gather all its natural resources, sell it to France, which is produced manufactures, manufactured
goods, with the money that came from the selling of the natural resources, you would buy
manufactured goods, which would allow you to, you know, to make your extraction of natural resources
even more efficient. And that would be sort of a virtuous circle. What the Latin American economists in
particular saying is that this structure of global trade, which was the recipe, foot low income countries or
disadvantage, why do you think that is why? Why are these countries at a disadvantage by producing
exporting at a comparative advantage? Primary products versus richer nations, which are biased at a
comparative advantage not to look at what they have in their soul? Or to do agriculture, but rather to do
manufacturing? Why is there a disadvantage? Why do you think? Yes?
You can say keeps in there, but there's a commodity boom. And you saw that a few years ago, but
actually much better, you know, if you suddenly your natural resources were worth a lot of money.
I think maybe it could be a exploitation of those resources. That doesn't happen in the village, different
trees. Also the kind of development of manufactured goods, cars in a society, like education and so on.
Okay, so all of these Yes.
Because the kids technology to the richer countries and technology is the one thing that can Yeah, let's
sealing off.
Okay, but all of these are true. Yes, you want it to
be example of like, USA and China buying like, or like the guise of development in like sharing the
resources, exploiting resources of all the African countries and buying off the entire economy sure that
we die on the debt and like, there is like a wall like us is extremely oil, rich, but they don't have to do
this. China has South China Sea scale. It's debatable, but like, they don't have it. Just tap into all.
100
That's what you were saying. Exactly. So the richer countries not tapping into their own natural
resource. Exactly. So all of these are true. The main argument, however, was that primary primary
products, remember what I just said, you know, what, if you have a commodity, boom, it's great, right?
But what if the price of oil goes down, the price of cacao goes down, the price of wheat goes down. So
the point was Travis's study in particular focused on the volatility of prices of primary products, those,
the demand for these products tends to fluctuate. It's much more contextual, than the demand for
manufactured goods. That's, you know what that was the long, you know, study that Pravesh came up
with, that was then used by a number of economists and sociologists among which was someone who
would then become the president of Brazil a couple of years ago to suggest that, you know, the global
economy was structured in a way that would really not in the favor of the poorest countries in the
world. There was even a theory that from Latin America, it was called dependency dependency theory.
And Cardozo was sociologist, in Brazil and also in Falletta, or theorists of it and basically suggests that
the poor countries which were told to modernize Rostow by stages through comparative advantage,
production of primary goods and trading them were at a disadvantage, okay. Because because the
primary products that they were advised to agriculture or restructuring the natural resources,
essentially, and selling them in exchange for manufacturing goods, so basically those countries will say,
don't try to industrialize don't try to construct cars to construct industries of cars have closed or or Hi Fi
just use what you can you Very little, you have a lot of natural resources, do trade and that will help you.
And the studies were showing that actually, if you look over time and period, those countries weren't at
a comparative disadvantage, because the prices of these goods, agricultural goods, natural resources
fluctuates much, much more, because the demand depends on the supply sometimes depends on the
weather, or on a war, for example, if you look at food prices now, so that was the argument, one of the
idea that came out of it in in development theory is the following. What you needed to do, and this is
really the 70s. So I hope I have my dates, right, but it's roughly the 70 Was it rather than trying to extract
produce and sell at a comparative advantage of world markets, your natural resources, what developing
countries should do. So if you produce primary products, you have to import manufacture goods, cars,
textiles, a number of things, they were told to be opposites, continue to extract natural resources and
sell them on the world market, but also do what's called i s, I, this is something that is back now in
fashion, import substitution industrialization. So I'm going very quickly through you know, 20 years of
development economics, but just isI essentially means what it says that states should be pushed to
actually select a number of sectors in which rather than importing at an expensive price manufacturers,
they should protect national champions industry, Tanzania should start designing its own shoes. South
Korea, which was the developing average stop producing key as a whole Mexico in a lot of African
countries. So the idea was, you know, continue to export, of course, national goods, but also proceed by
creating national champions national sectors, which means and this is important for the rest of the
story, that you need a strong state, economically, the state to actually select the sectors that are going
to be promising select the industries, and then this is legally important, protect these sectors. I'm talking
about protests, I'm talking about tariffs, legal taxation regimes, which will actually protect these nascent
industrialization. Okay.
101
So that's a, you know, very long answer to your question. But it's something that we would wanted to
see Anyway, next time. So we're already already there, which is, which is great. But if we if we just pause
for a minutes on roster, okay, and vasto, again, with the idea of, you know, modernizing through stages,
and to do this, it's not in the reading, but now, you know, primarily through tre the primary products at
a comparative advantage. If we think for a moment about the kind of notion of development that is
produced there, and I want to relate this really to the discussion, we had the very first day of class, okay.
It's in the optional reading that you have today by Gilbert Wisco, versus a famous development thinker,
was based in Geneva, and very strongly criticized the approach that was there, that wasn't Roscoe, and
that he really was even in the very word development. And he talks about it as a metaphor, almost a
missionary metaphor in which there was something that the developed had to do for the
underdeveloped that you created the dichotomy between developed and developed, and that it sort of
embedded make permanent the idea of remember the teleology of change the idea that you would
have necessarily progress towards something better. What race is not the only one and a lot of critical
thinker, including cultural anthropologists, Latin America, Arturo Escobar, for example, is one of them
strongly criticized the policies, but also the very concept of developments, right, because it suggests that
there is a vision of progress. And the critique is a division of progress. You can see what is the what is he
call it the post maturity stage, or what what does it look like? The ultimate stage of development in
which we have, you know, the welfare state, maybe you're right, but it looks like what country does do
you think Boston was thinking about? The US
Timing marginals, something of consumption, it was like the Americans have stopped buying
labor in heaven, they live in cotton like world it is, you know, the consumer is kind of oasis efficient. It's
the, you know, modern US society of the 1950s. And 60s, really the 1950, that 50 That he's looking at.
And the critique of that is that, of course, you know, it's a very, very specific vision of society. If that
promise, you know, now we even know better because of the environmental consequences of that kind
of capitalism. But it's a very specific vision. And what people like risks and Escobar show is that the the
words that were used by development planners, were really damaging to traditional forms of society,
alternative forms of knowledge, alternative forms of society, customary traditional forms of, of
modernity, other forms of doing agriculture. Escobar, for example, talks about how development
planners arrived in Bolivia and Colombia and suggested that the peasants will not protect barbed wire
around their land, where we think was completely illiterate, and you know, almost barbaric that you
needed to sort of wire off in order to be able to sell it. So their analysis is what some people would call
out for Kellyanne Foucault analysis of power in the idea that the three words that you use are power,
when you say that one thing is illiterate, that means that and that the other way to the more technical,
more Western ways to do things is better to prioritize, you should go famously talked about our
language and discourse is power, and risk. And Escobar talk about sort of the economic sounding
102
rational approach to development, thinking and development discourse, and how this actually created
huge damage in violently changing the lives in a number of societies in the world. So the critique is really
one of that. We will actually, tomorrow, very briefly, begin by this, I just want to read you a few
passages of an author that discusses this, because following I've thrown a lot of you today again, but if
you're with me, this is really this kind of thinking was a critique of Rostow in a particular development in
general, okay. And one of the logical conclusion of that, by cultural anthropologists with this notion,
remember, we discussed it with the Amazon tribe with the idea that what you need to be is what you
call alternative modernity, and then a path towards one way of modernizing, which looks at essentially
us. You need to have to celebrate alternative modalities, that tribe in the Amazon that we talked about,
you need to let it be, you need to not intervene in the way people are doing agriculture, you need to not
sort of change their ways of being. So I'm letting you with this thought. And tomorrow, I would like to
discuss it briefly with you one last time, before we carry on the story of what happened in, in
development and economic thinking. Yes.
Just question about patience. Sure. To know,
yeah, that's a good question. There's never going to be never going to be a very specific question about
how what I just explained comparative advantage theory, no, this is just to give you a bit of a vocabulary
so that you know, if you remember or if you know about it. And to give you the I can't give you the
explanation without talking about economics, when we're talking about development, we have the I will
tell you more about the exam. But the questions, I think, what I usually do is I give three questions,
which are relatively broad, and you can pick from various sessions to make your argument or your
analysis, but it's not going to be about you know, specific economic theory, especially non economic
maybe a bit more if you choose two questions out of three, but I have to check with the administration.
Two questions are the three there transversal it's not about one part of one class or not even about one
class. It's about linking things together. You know, and you're, obviously you know, I know you're all
doing long studies. So you can say more about the economics is here as a as part of the vocabulary that
we're learning but I'm not going to test you on this
I can give you examples of my exam from prior years so you can you can know but they're very quite
open transversal question. To be honest, I haven't Design The yet because it will depend on our
discussions
103
Class 6
Okay, good afternoon, everyone.
Let us
start from where we were yesterday.
So I told you at the beginning of this class,
that the first parts of this class are quite,
quite heavy in those, you know, some theoretical approaches and conceptual approaches a bit of
history. So we're, we're still in the middle of this. And
I hope you can be patient this now I know I'm throwing a lot of things you.
But again, I strongly believe that this is an important feature of exploring the field of knowing both the
history and the theory of how development and human rights, you know, worked one against another
word, specifically in history, and by which actors was it articulated in one way or the other way.
104
To today, what we'll start doing is we'll do a bit more of that, I'll go over another big chunk of history
and theory. But then what have changed, we'll have to do something different, we'll actually begin a
workshop in which I'm going to ask you, and it's a shame that quite a lot of you are on Zoom today,
rather than here, I'm going to ask you to, you know, work in small teams in small groups will begin
today. And tomorrow morning, we will carry on with this workshop. So I'm going to also maybe split
those of you who are on zoom in two groups. And hopefully, you can be here tomorrow morning, or you
can carry on on Zoom if you really can't make it.
Normally what we should do after that workshop is to finish sort of the history of the interaction
between human rights and development by talking about Amartya Sen, and what's called human rights
based approaches to development, which are a bit more contemporary. But tomorrow, we're not going
to do this, we're going to have we're going to, you know, step forward in the sort of the third part of the
class in which we, we deal with very specific contemporary issues. The reason for this is that we're going
to have a guest, who's going to be on Zoom, but I'm really asking everyone to come to class, we'll watch
him together on Zoom and interacting with ease come to class. He's the person basically in charge of
relations with NGOs, for Michelin initialize the biggest tire world car tire corporation in the world, based
in France, and he will give us ones he's been, you know, in this field for quite a long time. He's a former
journalist actually. And he worked in the NGO sectors, he will he will give you a corporate version of
what it means today. In you know, the field of investment by transnational corporation in the
developing world, as many of these companies like to call it, what does it mean? How do you deal with
NGOs? How do you deal with human rights and it will give you an you'll have a chance Don't be shy. It's
very much used to questions, too.
engage with you. Okay, so we should normally have done this a bit later in the class, but it's an
opportunity and II is only available tomorrow. Okay, but before we get into this, and before we get into
the workshop that will be today, which is occupied for about half of this class. I just want to finish briefly
where we were yesterday. So,
you know, triggered by some questions that I had, I sort of went a little bit further in the history of what
happened. After modernization. Remember this notion of modernization. Basically, countries were
pushed to adopt policies that would allow them to sort of modernize in a few practical steps, with a very
strong idea that, you know, because if countries were suffering from a savings gap, what you needed is a
big influence capital from the North, including the World Bank or USA ID for them to invest in some
perhaps in capital, in you know, in in machineries or some form of minimal industry, but with the idea
that what they really should do is to use this money in order to better extract and exploit and sell on
world markets, their natural resources, underground are here cultural resources, okay. And then we're
105
going to talk to them, we already started talking yesterday, because I was pushed to do so and what
happened after, which is i Si, there are many, of course, many activities, many different trades, I'm trying
to sort of give you a schematic history of what happened. And the focus of today's reading, today's
session is on what happened after ISI. And as often what happens after is a reaction to ISI. And we're
talking in particular of the sort of the effects of what's called the neoliberal approach to development or
the Washington Consensus, which refers to policies of structural adjustment, which you read about for
today. Okay. So before we go into this, just a very quick note I gave you here I mentioned yesterday that,
you know, when we think about modernization, there was a an optional reading for yesterday that talks
about critiques the very notion of the metaphor of development and all the industry that went with it,
and uses either post colonial or what some people some people would call post structuralist ideas such
as Michel Foucault's notion that language is also power to criticize the whole paradox that came with
development, the whole language that was used to displace alternative forms of doing agriculture, for
example, the way it sort of naturalized as a naturalized as something really rational, the scientific
Western way to do things, for example, to cut property in small pieces in order to explain it better
economically. So there's a whole literature I gave you, I gave you here, some name, those two here are
more sort of recent, and they also include a gender perspective, which is important. So there is out
there a whole literature that essentially goes against, or it's an anti development, and there are different
teams and camps, as we talked about a few sessions ago, but those are they're in question essentially,
development as modernization. And one of the sort of the, you know, the outcomes of part of this
literature is to suggest that what you need to do is to celebrate alternative forms of modernity, not one
Western consumer, us kind of model that you need to catch up on, that you need to emerge and
eventually develop into, but rather celebrate alternative forms and maternities. And Arturo Escobar is a
famous example of from a cultural anthropology, anthropological literature, who has done this and you
know, there's a celebration of localism, local ways of doing. And I just want to mention that there's an
interesting debate among cultural anthropologists
who tend to celebrate local isms different forms of life. These are people who really go deep span, do
field study and look at how different cultures in the world have their own ways of life. And there's a guy
who I had a chance to meet and I always like to cite him because I, my tendency is always to look at the
critics and then the critics and the critics and the critics and the critics and the critics. Okay, it's endless, I
know, but I kind of liked that. And I think intellectually, it's interesting. James Ferguson is also famous
cultural anthropologist, based at Stanford, and he's done a lot of work on on Sub Saharan Africa in
particular, which called neoliberal development policies, which were imposed on many countries as we
will see in a minute and it's some
106
Publix pieces he sort of
generates a sort of a word of of,
of caution against his colleagues view that everything essentially needs to be you know, localized and
you need to celebrate some form of alternative modeling right.
And some of you are interested I can send you this piece.
And essentially what he says is that development in rosters account right the step by step we get away
from the traditional society and we end up in the consumerist model of us. This is sorry, my writing is
terrible status, the status of a country because there's always this idea of ranking and progress, you
would start there. And in the story, you would eventually what this is time, sorry, time and status, you
will eventually they're here, you're underdeveloped. And here you're developed. And as I just said,
there's a huge critique about this, because of the language because of the Western scientific rationality
that goes with it, etc. And what he's talking about is, I'm going to just read to you a few slides up, and he
says, you used to have a grand narrative of development in which you would develop from traditional to
a higher hierarchical status of modernity, which was only a matter of time, right in time, if you follow.
You know, one time it's Rostow, one time, it's trade once time, it's industrializing, but the narrative is the
same that you will catch up on
more developed society. So it's an idea of sort of what you would call in conceptual to TV ology, right, it
goes in a direction and that direction is progress. And we discussed this with your very first pictures on
the very first day. And he says, but when you say like Arturo Escobar here, that you should celebrate
alternative modernity, that they all have the same kind of value. What you have now is not any more
steps towards modernity, and a better hierarchical rankings or status, but a simple and static rank
107
that is sort of out there with no relation to the other because it should be left to celebrate it. So if you're
here, you just want to be left here. That's sort of where he criticizes that approach. He's not satisfied
with it, say stages of development, however imperfectly are replaced by statutes, sort of a statute that is
left in time and space, which are separated from each other by exclusionary walls rather than
developmental stairways. So he makes a provocative critique that they if you celebrate, you know, the
Amazon tried to celebrate traditional ways of doing agriculture, you're also sort of almost giving a
justification for letting some countries be where they are, some societies be where they are. And in a
way that is not relational. Because if you're going to celebrate any stated status of a country, let it be, or
a society, you might not actually look how it relates to another one, how unequally the relationship
between the rich north and the poor country is.
And he basically suggesting that this sometimes gives arguments, this talk of alternative modalities, you
gave some argument to Western perceptions and some societies in some countries as being
what it was, rather than the poorest countries being understood as being behind the West catching up
developing or emerging, they are increasingly understood as naturally or even perhaps racially beneath
it, right? So you it's a, you know, quite a quite a provocative attack on his fellow cultural anthropologists
who say, you know, if you say this, if you if you take away this kind of stairway idea, it allows and he
talks about good example of journalistic treatments of countries in Sub Saharan Africa and saying, Well,
you know, we we should actually it's true, maybe these cultural anthropologists are right, you should let
all of these societies vie and, you know, look at these societies that really, they're really completely
underdeveloped. They're in know, the undertone between the lines story is that they really are not to
the same kind of value. They don't, they shouldn't be qualified, as proper civilized societies as these
others are. So that's just something I want to leave you with. And you can read this piece. If you're
interested. I can send it to you by James Ferguson, which is, I think,
quite an interesting one.
Of course, I
wouldn't say so cool, although all these are not really
108
perfect. Well, no, he says that by by celebrating the idea that any kind of status or civilization is a
modernity in itself that there shouldn't be a push towards some form of modernity, because that
modernity will necessarily be sort of Western is saying that they're sort of basically destroying the whole
idea of development, right is saying, Okay, it's true that development has a, you know, very specific,
violent Western scientific kind of project. He kind of agrees with that. But it says we have to be, he talks
to his fellow Doc Brown for policy said, If we radically, completely dismiss the idea of a narrative, it
might give a justification to countries saying, Well, okay, well, let's not help these countries catch up
with us, or let them be sort of, you know, subpar countries compared to, you know, richer, richer
segments of the world. So that's, you know, that's, that's his argument. He's not necessarily he's his
whole work has been to be criticized the development project
back
that we criticize, exactly. He in a way he is he saying, you know, we have to be careful, because if we
completely want to dismiss it, we might justify the fact that, you know, if we stop measuring, right, like,
you know, I, we push, you push, I push the idea, you know, what, why do we need to measure all the
time, and it's just a cautious warning that he says, if we do this, we might give a justification for the
either of those who are top of the rankings, to just let it be, and not have, you know, kind of a feel that
they have to any form of historical or political, you know, responsibility, visa vie some, some other
scientists. So, you know, I don't necessarily agree with what he's saying, but it's a provocative debate, I
think that there is between those arguing against the measure any form of measurement, yes. You said
that.
Patients shirk their responsibility. That's
the whole idea of
modernity with the liberal society, which has the central
109
should be a satisfied and occupying that space. If you have a country, which is simple, I don't have
access to health care, I don't have access to medication or Yes, drinking water. That's why
the country itself is saying that I don't like this.
Like, bleaching,
which is
exactly this. And that's exactly that's precisely what he's trying to say is that, you know, you celebrate
alternative identity, but sometimes you're talking about societies, which are not necessarily happy. And
that's because they don't have Western consumptions and, you know, refrigerators and car, but they
basically, because sometimes some people are dying because of failure to access to some forms of
healthcare. And it's a base by calling everything Western and liberal and modern, you know, the
question you were debating the other day, you know, you let the tribe be, or you look at the fact that
some people within society, whether, you know, however you label it are suffering because of the
patriarchal society, because some people are dying of diseases, which we know are preventable. So this
is basically to keep the debate over about the fact that see, what he's suggesting is that people like
Escobar taking a position that is a bit too radical. And then you need to, you know, engage each situation
in his own term and not completely dismiss the idea. No, the narrative of some form of progress either
is defined in your own terms, rather than the external. That's in some other examples. But But anyway,
so this is just to leave you with a complicated debate, because it's, I think, sometimes a bit too easy to
completely dismiss.
It's not that in my perspective, I like what he's saying and it's very nuanced because he's both criticizes it
but he's ready to criticize some forms of critiques against it.
110
Okay, so now, with that in mind, let us carry through
the history and the concepts
that come a little bit after modernization, right. So,
you remember this idea of post war modernization 1950s 1960s. The theory and disparate
conceptualization of trade offs needs trade offs, equality trade offs, law
Liberty trade offs, Cousens, Kaldor, Huntington, all of these sort of big ideas behind it. And the idea that
in order for countries to so close what's called their savings gap, you remember the idea of an input
output cycle, and the fact that poor countries do not have enough saving, how do you close that savings
gap? First, according to Chris Carter are interpreting business by the idea that you don't tax the rich
those who have the highest marginal propensity to save because they will be invested in the economy.
But also by trying to attract and gain support from massive inflows of capital from abroad. That includes
the early efforts of USA ID of the World Bank of some bilateral development agencies, that the way
countries are advised to use that money that is liberated from those capitalists were able to reinvest in
the economy, or from the money that comes from abroad in forms of official development aid, or also
foreign direct investment is to engage in
strategies of economic growth led by exports and trade, it's called exports, led growth strategies, right.
And remember what I said quite quickly yesterday, the idea is basically for countries, including
increasingly independent countries, because many of this is happening in the decolonization wherever
the 1960s for countries to rely on trading on world market when they can produce an export at a
comparative advantage. So following neoclassical ideas of Ricardo that rather than try to produce
everything, countries are better trying to figure out what they can produce an achieved efficient costs
and exported on world markets and imports other goods which they cannot manufacture. Okay. Is that
clear for everyone?
111
Okay, and we action to this was by a number of economists and sociologists that I mentioned yesterday,
which actually looked at what they call the global terms of trades, and how, you know, a lot of
developing countries were pushing to extracting producing or exporting primary products versus richer
countries producing and exporting manufactured goods. And they talked about basically the hypothesis
that this whole scheme
essentially,
was in the disadvantage of these primary products, agriculture and natural resources, producing
countries, so poor countries, okay, this was called the hypothesis of the declining terms of trade. So that
kind of trade approach was actually overall, if you look empirically, in the long run at a disadvantage for
countries producing agriculture, or extracting under, under, under,
under your saw natural resources, because there were many explanations, and you guys came up with a
lot of really good one, but one key example in premises work, and particularly if the idea that those
primary products are more volatile, the price changes to too often depending on geopolitical context,
depending on climate, depending on demand, whereas manufactured goods, the prices, and the
demand for them was much, much more stable. Okay, so it's a structural division of labor, which is to
the disadvantage of this economy. Okay. So as a reaction to that, in the late 60s 1970s,
up to the beginning of the 1980s,
some development actors, so in bilateral Development Agency, USA ID but also at the level of the World
Bank or regional development bank's, but also countries themselves of independent nations decided to
change their strategy, not all of them, the many of them. So the strategy was to continue doing this to
continue produce, extract, export at a comparative advantage, a number of primary products, for
example, if you're a country that you know, is sitting on a very rare supply of cobalt, for example, this is
the DRC today continue to do this because you have a comparative advantage, because you're the only
112
one to actually have that resource, but at the same time to try to identify specific sectors of the
economy
in which you would try to nurture a domestics which is domestic so the comparative advantage trade is
a really sort of global global strategy of export led growth in which
try to insert yourself a global market here to strategy is to continue doing this, but focus on National
Domestic industrialization strategies, identify a few sectors, and then nurture natural national
champions nurture a car industry in South Korea and nurture a clothing, you know, textile industry in
Kenya, another car industry in Mexico, things like that. Okay, that was really the new approach around
that time. And the idea was to substitute some inputs, the cars, the clothes that came from Italy or
Germany that were very expensive for the countries and produce your own.
And now we have a link with today's session. Okay, how do you do this, which is the main actor that can
actually
guide this?
How does the country you know, do this, which is the main actor that sort of seems to take a bit of a
lead here in making these decisions?
Yes, the state, okay. So this is a little wink to it, we're going to live a very visible hands of the states.
Okay. The idea before was, you know, the stage show or some form of investments. But you know, what
you want to do is export and trade on World Market attract investment track. Now, the idea if you need
to select between whether you're going into a car industry and the future high tech industry or textile
industry, somebody has to make the decision, right? You can't if the decision is not suddenly
industrializing every potential thing you try to focus on what is needed for your domestic market cars,
clothes, but also thinking What about the region in the future if I start a Kia in, you know, an in car
113
industry in Korea, I might be able in the long run to not only produce domestically cheaply for my own
domestic market, but also exported originals, or even eventually export to the world. And those
decisions are made by really
key actors. In those years in the 1960s 70s. You have legendary planning ministries in Japan and South
Korea, which are often cited as examples and meaty in Japan, for example. And what's important is that
this happens
with a very strong use. Finally, we'll get back to law of law law is really important here. Public Law in
particular. Okay, how do you do to protect an industry? What are the legal instruments you can use if
you want to protect a nascent industry from global competition?
restriction and Emperor granting exclusive importing licenses to a few people because you still need cars
until you develop your own car industry? Very important. What else?
Taxing Yes, taxes. What else?
quotas, barriers, yes, subsidies, barriers, tariffs are all of the international or domestic economic law that
you probably know about very much used very much the strong thing, and this should make you think
what's gonna come next? What will be as a contrast, of course, to this, okay.
Very short detour, okay, from this,
at the international level, what happens?
114
At the level of the UN, I'm going to go very quickly, and I can send you some material here. For those of
you who are interested, there is also a change in the structure of, you know, the global political
governance system, because a lot of countries that we just mentioned, become independent, this is the
decolonization wave.
And a lot of these countries while this is happening, seek to try to use their numbers, because at the UN
General Assembly, for example, is one new country or one old country at the same boat to try to reflect
some of the ideas which I mentioned earlier, the declining terms of trade, the idea that there's a center
that benefits from World Trade in the theory that we produce his primary product and is at a
disadvantage, and they try to translate this politically. So at the level of the UN, you have an important
moment in which what
was then called non aligned countries which were neither affiliated with the West in the west and either
completely affiliated with this communist bloc came together. charismatic leaders of Indonesia and a
couple of other countries tried to bring them together in Bandung and conference in 1955. But
especially in 1974, they come up
with a with an idea for what's called a new international economic order. And I equal it's you can find it
within a UN General Assembly declaration and other one that really essentially calls for a restructuring
of the global economy in order to redress the extraction, the natural resources of the past, and a strong
push to change the rules of trade of intellectual property or financing, to sort of rebalance things. Okay,
that sort of a political move in which was then the self called third world decided to sort of take a strong
position in parallel, what were lawyers doing. Lawyers, especially lawyers, from those so called third
world, countries, from Algeria, from Senegal, from other countries, try to come up with some legal
grounding to the same idea, and give it some kind of legal, you know, instruments. And for years over
the 1970s, it took quite quite a long while they tried to articulate the notion of a right to development.
We mentioned it in the first session. It took a long time until it was ultimately adopted in the UN General
Assembly declaration, a declaration of the 1986 on the right to development. But unlike the United
Universal Declaration of Human Rights, no one has ever tried to say that this had the value of customary
international law. Because why would you think Rich Western countries thought about this? Do you
think they voted for this? So the notion of a right to development was essentially suggesting that
115
countries and people of developing countries had a right to develop and essentially they should be
provided some help or some reparations for the past and justices, and they had the right to develop as
sort of a genuine legally binding rights. What do you think Western countries thought about it?
They like it.
No,
exactly. They didn't want any, so they voted against it. And, you know, the circumstances that it's
definitely not a legally binding instrument is, however, an interesting legal instrument, because it was
quite innovative. In that he talked about women's rights. It talked about the interdependence between
civil and political rights and economic, social and cultural rights. But legally was partly flawed, because
not only richer countries, Western countries rejected it, but it was also not clear who's writing what was
it the rights of the people, or what is the rights of the governments and not only western country, but
Western NGOs also had a quite quite an easy argument to make that some countries will use whenever
they will be told that they're traveling. Remember, this idea is development, developmental
authoritarian states that were, you know, using Huntington safe yet to develop quite strong
authoritarian isI policies, for example, whenever they would, the finger would be pointed at them
because they will be traveling civil and political rights, Liberty trade off, right. They will respond by
saying, Well, hold on, we have a right to development before you tell us what to do we have a right to
develop. And you are actually you the west or the World Bank, or the International Monetary Fund your
your
applications that that skill. So there's a whole debate about it, but essentially, legally, it never really
kicked off. But it's something it's a declaration that is very often still cited by current UN Special
Rapporteur you found it it's called, you know, legal instruments never in the way never really die, right.
There's always a reference still to the right to development. There's working groups around the right to
develop and I know people who are still trying to push right. And it's not an interesting, but legally, it's
sort of collapse because of a lack of support. And in terms of the new international economic order, it
also collapsed because of a division that came in the middle of the 1970s between third world countries,
so called third world countries that had united together
116
partly for geopolitical contextual reasons. One of them and some of you here may know about it, of
course, was the Yom Kippur War, the Yom Kippur War War, in the middle of the 1970s led to a strong
reaction by a number of so called third world countries to dramatically cut the supply of oil
Okay, so suddenly you had a number of countries, including Saudi Arabia, for example, but also
Venezuela, who became oil rich. Right. And that this sort of you know, that the consensus behind the
new international economic order slightly collapse because you had a division between countries which
remain poor, and others, we've suddenly became relatively rich.
Are you still with me? Yes.
Is it development?
Was it around the developing country?
Exactly. That wasn't clear. And it was one of the arguments precisely is that it's not clear. Sometimes it
says, you know, nation, sometimes it says people and one key were the people could suggest the data,
right to development and the government and actually fail to realize their rights or whether it was a
right that nations had, it was very ambiguous.
State and not?
Exactly.
117
Exactly. You have a really good piece, if you want to read about it that came out two decades ago by
Susan marks professor at the LSE, that talks about the right way to development, but in a more positive
terms in showing how revolutionary was the one thing that it does put into picture for the first time,
even with, you know, disagreements and debates about whose rights and whose liability it did
frame development in rights terms, meaning that it raised questions of power dynamic of who's liable,
who are the duty bearers? Who are the rights holder? And just by raising that question, it changed
slightly the way he talked about development development as a policy, which was supposed to have
outputs, and almost kind of the, you know, charity kind of thing, with the idea that you should think
about development as involving power dynamics, and explore whose rights it is who is liable, whether
it's the states, whether it's international community, etc. So that's one of the contribution of that
moment, she argued, and I will actually largely agree with it.
So if let's just stick on the Yom Kippur War, so the young people were led a lot of oil rich countries to
suddenly essentially flush with cash, right? Petrol dollars, there were lots of you know, huge amounts of
dollars within need, essentially, to what was called in financial to recycle those petrol dollars, and make
use of them. And for this many, many
of these newly rich on which all producing countries went to because they didn't necessarily have the
financial very well developed financial system, they went to Western banks
to recycle those Petro dollars and Western banks were very happy to take those in. And one of the way
the federal dollars were recycled, were by offering very, very low interest,
lending facilities to love poor countries, which were trying to do this. Right, Mexico, for example,
number of sub Saharan African countries, which which were trying to sort of follow the recipe that they
themselves like, or that, you know, was influential at the moment of trying to create industries. And for
that, you need as I said, you need some, some money. What happens in the beginning of the 1980s, is
that because of still the consequences of the Yom Kippur War, and the stagflation, as it was calling the
West, a lot of Western countries go into recession. And a lot of them are starting to put pressure on the
banks to ask these poor countries to you know, pay back their debts. Okay. So you had a really so you
118
have a story in which a lot of it's called the debt crisis, right debt crisis of the late 70s and early 1980s,
you have an in the West, and as a consequence, Mexico guidelines we'll see a bit later another, you
know, quite a number of countries in Latin America, Sub Saharan Africa, are suddenly faced with strong
demands by banks in Western countries to reimburse their debts. And those banks of course, push for
governments at the level of international financial institutions, push countries which are sitting in the
world of the more than the World Bank or the IMF, to push these countries to actually reimburse these
depths. Okay.
Um,
that is one factor that explains for what happens after this isI so you have ISI and isI is it
examined very closely by a number of economists
including someone who, who's quite famous in this field. And Krueger, they also have a guy called
Deepak Lal.
And Krueger was a an economist at both the World Bank and the IMF. And she is looking at the micro
way isI works and shows, empirically, that there are some vertical inefficiencies. So this is the way it
works. You mentioned earlier that one way to protect
domestic industry would be to grant a minimum number of exclusive importing licenses, right, you're
starting to produce cars in your practice, but you still need cars come from France, or Germany. And
what she's basically saying, looking at this, and it actually is true that it happened, and she looks
especially at Latin America,
119
what happens is that those who have a high marginal propensity to say, rather than investing in the
domestic car industry, by being building all supply chain, what they fight for, is to and when they're
ready to pay and corrupts public agents for is to actually get these exclusive importing licenses, right?
Because they realize from an economic standpoint, that they can lead you to earn what's called an
economic terms or rents, sort of a boil up monopolistic and earn profit, you don't have to remember
that name. But basically, it seems more bang for the dollar to try to be the exclusive importer of German
cars, rather than trying to, you know, invest in, in the domestic car industry. She also shows how public
ages we have the monopoly, which had the monopoly on granting these licenses, or basically looking at
the list of things which would be forbidden under quotas and protection, tariffs or tax regulations
become, of course, objects of strong corruption pushes, okay. So that is her analysis. There's another,
as I said, economies for deeper cloud with cloud, which could which looks at what's called government's
in efficiencies in remember this highly visible hand ISR? Well, both Cooper and DITA cloud tried to show
that this very strong, visible hand is very some very often inefficient in economic terms. Okay. And
what's important to know is that these people are not evil people, right? They were economists who
were looking at something which was actually not always really working very well, okay, and was the
reaction of something that wasn't always working well, that they wrote this. And if anything there, if you
read very closely, their writings, in fact, law in particular, they were much more nuanced. They were also
saying that the market had inefficiency, but they were very much interpreted by a number of political
actors and policy actors to suggest that, you know, the state essentially should be completely pushed
out. Right.
So a number of
a number of reasons explained for why comes after AI, which is the Washington Consensus, new Liberal
recipes for development. Okay. One of them I just described, this is here, Krueger, feedback, cloud micro
economic analysis of how is AI doesn't really work, the very visible hand of the market doesn't we have
the states or doesn't really, really work. The other one, I also mentioned that the debt crisis, junkie,
poor, etc.
And then the other and all of them happen really at a sort of an alignment in my video, like early 1980s,
is that you have very strong ideas, ideological positions, but this time coming from governments and
leaders in the West,
120
Ronald Reagan, Margaret Thatcher, Helmut Kohl, and they bring domestically they're really pushed by a
very strong ideas which relate to, you know, Chicago theories of economics in, in the US, for example, a
whole string of ideological
concepts, which suggest essentially, that the best way for economies to grow is to let the market
allocate resources. Free markets, is the solution. Okay. So this is the analysis of what's happening in the
ISI developing countries. This is the context and these are the ideological, political reasons
For which, at the beginning of 1980s, you sort of have a perfect storm that comes and takes everything
with it, right. And the consequences of the storm are still felt today in many developing countries. And
what they recipe suggests is to basically take out this very invisible hand of the state and replace it by so
called Invisible Hand of the markets, right? That was what it was called in theoretical terms, we need to,
if you have state owned enterprises that are doing your new car or clothing industry, you have to
privatize it. Okay, you have to deregulate, you have to liberalize trade, you have to go back. This is
important I gave you as an optional reading, it's really quite fascinating to write a very famous 1981
report, Bert report on Africa, in which the solution directly written in there is for basically African nations
to be able to reimburse their debts to those banks, is to completely let go of ISI and go back to
promoting agriculture and the exploitation and extraction of natural resources and sell them a
comparative advantage to global trade, open their markets. Secure this is important, very important. I
told you earlier, what was the kinds of legal our legal instruments which were used under eyes, I was
public law. What is proposed here in legal terms, what do you think neoliberal development policy was
in you read what is what is the kinds of legal instruments which are pushed for
sale still Public Law?
No, no, it's the opposite come with private law. Okay, private property, strong, secure contracts, so that
it will attract investors so that they will be sure that their contracts are, you know, hard, that their
private property rights would be, you know, protected from any form of nationalization by country,
bilateral investment treaties that would secure exemptions for investors from a country that signs up.
Many of them are signed in the 1980s. You know,
121
that. Okay, so that's the recipe.
And what's interesting is that that recipe is not just adopted by countries. It's not just the World Bank
suggesting to do this. There's a radical shift in the way, both the IMF in particular, the World Bank sees
its mission changing.
The World Bank used to essentially administer loans and technical assistance for big infrastructure
projects, building dams, for example, highways, hospitals, and the 1980s. Under this sort of perfect
storm, it sees itself as needing to actually condition
any form of big loans or bailing out in conjunction with the IMF, to the complete restructuring of
developing economies. It's called structural adjustment policies. And the name really says everything.
These countries were told, if you want help from the World Bank, if you want to be bailed out of your
debts by the International Monetary Fund, we need to completely restructure your economy, we need
to privatize need to liberalize we need to deregulate, okay, you need to do all these things, without
which is called economic conditionality. You won't get any formal
and this approach very much endorsed, needs equality trade off the idea that you know, no formal
economic, social and cultural no from a welfare what you need to do to reverse the deaths, we need to
reduce the fiscal space of the of the stage, you need to, you know, you need to
change your universal access to health care which Sub Saharan African countries trying to do in the 70s,
you have to basically fire nurses, fire doctors, we completely reduce the size of the state in order to be
able to reimburse your debts. So definitely no space at all for any forms of economic, social cultural
rights, any form of welfare states. And in that period with regards to civil and political rights. The idea is
basically sometimes the World Bank asks for elections, but not much more, right. There's still a very
much acceptance that if countries want to oppose Liberty trade off, they're fine to do this. Okay. So
122
structural adjustment, you shift from ISR toward towards primary products, export oriented growth with
a comparative advantage.
You adjust the state sector, this is all in your
The reading which is called Dying for growth, privatization of state owned enterprises, you focus on the
failures of government.
You liberalize deregulate trade financial markets in order to participate in global economy and attract
and ease foreign direct and very important the fiscal austerity, you want to really tighten your belt, fire
nurses, doctors, teachers, as much as
possible.
And what you have in terms of conditionalities is social conditionalities that come with it, we have a very
large privatization of many services that were public, including healthcare.
You have in many public services policy, this will be your your workshop in a minute, in which you
actually have asked the general population to pay out of their pockets for health, for example, with a
few exceptions, and drastically cut up and ucation budgets. This led to some authors such as the ones
that gave you
a narrative, of course, story, but suggesting that, you know, in order to reverse that, and to grow under
these ideas, a lot of people who essentially were fired, or even died, okay, social consequences were
quite, quite radical. And we in Europe had an example of exactly the same kind of thing happening to
Greece, not not a long time ago in which fiscal austerity was imposed. And if you look at the rates of
123
people actually dying or killing themselves, or the life expectancy has gone down from these kinds of
drastic cuts.
Okay.
So
very long story, which I tried to make sure any question so far,
same time.
Scandinavian countries were doing fine, you know, Scandinavian countries have been sort of adopting
social democratic policies for a large number of years, some of them actually access to natural
resources, rents, such as Norway, for example.
But you know, they are sort of the model of a social democratic approach to
society and development, and many of them have been tried to be influential, and at that time, they will
not be heard. And we are fully represented at the level of the World Bank, there was most of us,
especially Britain to some to some extent, but you know, nothing like that, really, it's only recently the
Senate in some Scandinavian countries have shifted their policies, and in some of them have strong anti
immigrant parties. But in terms of that, you know, their model was certainly not one which was imposed
on countries at all.
124
Yes.
So
they didn't really know exactly, they really many of them didn't have a choice at all, if they wanted to be
bailed out, if they wanted to be able to continue functioning. In the case study, you will see what I
mean, the case study will we're going to talk about you know, 1/5 of the health budget is directly
financed by the World Bank, and etc, etc. So in order to even sort of sustain as a government, they just
didn't have any, any any choice was really sort of, you know, forcefully, but again, not necessarily so the
story of the debts of the banks, you know, is a kind of a sad story. And it's a true story, but there were
also people, I'm always cautious about this, I might underline these policies, but there were people who
really believed that this was going to be a it was a safe for what was called transitioning economies
economies that came out of the Eastern Soviet bloc, communist bloc, they were supposed to transition
you know, kind of a shock and of market therapy, which was going to hurt but eventually will quickly be
the most efficient in terms of delivering growth that will trickle down so a lot of people believe that this
was much better than trying to do the Scandinavian way because countries just didn't have enough
resources to do so. Yes
struggle
now
and the debt itself and how
before was much of an opportunity as a disruptive
125
force higher interest rates of
reality or
that that wouldn't be good during that they won't materials and their
interest rate
then what's gonna happen?
Of course.
Exactly. This is exactly the idea that you know, in order to be
In order to borrow a market at lower interest rate, you have to show that you're fiscally responsible.
Therefore you find nurses you find doctors. Oh, absolutely.
When you need to afford your country,
126
absolutely.
But again, you know, maybe I mean, I'm trying to think the devil's advocate here. But some people
thought that, you know, the lesson that was learned that trying to impose a strong debt on Germany
between World War One World War Two was maybe part of the reasons why the Nazis came to power,
right, the resentment from the French and the British in the French, in particular, asking for the
reimbursement of the deaths striking. So yeah, after World War Two, both with Japan and Germany
with like, these are important geopolitical players. So let's do the Marshall Fund that's helped them.
But you know, in this case, Oh, yes. And you know, and no one really took into account the fact that
colonization that depleted these countries, so I completely agree with you. But again, some people that
thought it was the best way to do it to get any incorporate them in the global market economy. I would
tend to agree with you, but
yeah,
exactly. So
what I want to do now, so this is the moment in which we're starting this workshop. So it's going to start
today, and it's going to continue tomorrow. So I want you to listen carefully. And I want you to put your
computer's or your phones down.
We'll do some good
127
breathing, come on, you can do it.
I know it's hard.
Those of you on Zoom, do the same to using.
Okay, so what I want to do now is, is to put you in the shoes,
of a real story, so I have to disclosure, I had a chance to participate in the story. And I'm putting it here,
this stage of the course because it happened pretty much at the moment in which structural adjustment
was completely completely there. And I'm doing this for two reasons. One is to show you some of the
features of structural adjustment, because as I just showed, with Greece and the European Union, it's
not completely history, there's still very much some features of structural adjustment,
a little bit dumped with, you know, more social things, which is very much still there. The second reason
I'm doing this workshop today and tomorrow is to try to show you what I mean. And what I meant by
remember this notion of a pragmatic approach to human rights when we talked about, you know,
human rights as poverty issue of isolation, I told you about sort of your moral vision is that human rights,
more legalistic positivist visions of human rights and more pragmatic visions. So that's an example of
what I you know, this whole workshop is, I hope will give you a sense of what I mean by pragmatic, okay,
if you don't have to adopt, it's not a strong scholarly thing. It's just lighting,
and a couple of others.
So the story is, I'm giving you the context, the story is one in which a number of students and professors
128
from from the USA, Harvard and Harvard Law School, but also the School of Public Health, a couple of
students from MIT, had started to started a network of
you know, collaborations that phones also please,
phones, just wait just for a moment.
So a network of, you know, students and professors over the years starting to establish strong
connections with local advocacy groups, in a very particular reasons. The reason why they did it there is
because they've been students in their classes with us and they create a connection going up is the place
they've gone up, was definitely better going on the structural adjustment in the 80s and 90s. And this
happens and sort of at the beginning of the 2000s.
So I had a chance to be part of a group of students who came after two or three generations, and the
work that these students had done with local groups, local lawyers, local advocates, local youth groups,
women, organizers, religious groups, in particular, in an urban area of a crowded capitals, two
communities in particular, called NEMA, none of which were known in the context of Ghana for being
quite poor, quite politically active. There was a lot of migrants, internal migrants, economic migrants
from the north of Ghana, some of which some of whom had a different religion, a different language.
Some of them were Muslim. So it was
Have a you know, a bit of a town within the town, and it was known for his political activity. And you
know, the police was always sort of closely watching what was happening there to get temperature,
what was happening politically, more broadly in the country. So the number of students and their
professors went there and work with activists. And what they tried to do is what you know, in terms of
human rights advocacy to do basically, grassroots rights, education, right, engaging in very small
grassroots workshops, very participatory, really well thought through local actors to try and engage in a
dialogue and try to help people tell what their primary issues were. And sometimes it was a lack of
129
electricity. But over the years, the idea of health, sanitation was a big gutter, I remember that was going
to these communities and children were swimming in and it was pretty intense,
and access to healthcare. So this is two or three years of work really, with the idea of not sort of coming
from the US and
telling what the law is, and really engaging over a number of years with local groups and local actors
themselves engaged with the local participants, so quite carefully. It's not perfect, but quite carefully
designed. So when I came into the picture with a small group of students, we prepared to go to Ghana,
with the idea that the people there on the ground, were worried about health. So we were both good
law students. And what we did was okay, we're going to look at the right to health, then what we're
gonna do is design workshops on human rights education, we're going to tell people what their rights
are, okay? Hold to the bottom of saying what are you providing health and then the law students come
and tell people what the rights are. So, that was that was the original idea, right? And it very often
happens in human rights organizations. And we looked at this right,
which was to read for today, the general comments, remember, the general comment would be
treating monitoring body in this case, the committee for economic, social and cultural rights would
develop, from the very few words in the treaty to say what
the right to health is. So,
health has to be available, it has to be accessible, affordable to all principle of equity, it can be provided
privately or publicly, it has to be acceptable culturally, and it has to be of a sufficient quality. I'm going to
go fast here, because the assumption is that you notice, right, okay, the obligation to respect requires
that states have to refrain from interfering directly or indirectly within enjoyment of the right to protect
you need to take measures that prevent individual third parties from interfering or companies.
130
And then the obligation to fulfill to adopt appropriate legislative, administrative, budgetary, judicial,
promotional, and other measures. Okay, in the next few slides, I detail as the general parameters, what
they mean by fulfill, and they here take painstaking, long time to explain it fulfill. It's not just about hey,
it's about facilitating, it's about promoting, it's about giving people information about all of these other
things, okay.
Okay, so in the first day, we arrived, we were in a room quite a crack from when there were lots of you
know, young youth group activist, it was a mother's group, there was a religious leader, traditional
leaders, the local NGO lawyers who are Canadian, and then a couple of us, one or two professors who
the people have known already for a few years. And then we were there to a group of five or six of us,
from Europe, Australia, and the US.
And as you know, we were almost ready to roll this out and think about how we were going to plan
grassroots education workshops and try to talk with people, there was someone at the end of the room
was really, really agitated and say, oh, I want to tell a story. I want to tell a story of someone from my
immediate family. And she's told us that stories, and that actually led lawyers from local florists to hear
this and think, oh, maybe there's something we could do about. And what I'm going to read is actually
based on the policy and legal chairman, affidavits, testimony that I was actually able with a colleague of
mine to get from the guy she was talking about. So the guy who was talking about was the cousin of her,
who she told us was in a hospital because of health issue, but couldn't get out of the hospital because
the hospital was closed, essentially as a jail. Okay, so listen to the story
carefully and the first task I want you to this is everyone together. You don't have to be in small groups.
It is
to try listen to the story. And so you can take notes if you want, you can write them down exceptionally
open your computers but not prolonged. And think about all the moments in the story in which you
131
think they might be, you know, maybe a human rights violation or human rights issue or some form of
injustice. Okay, so this is a story I'm going to read it
so are you ready? Okay.
My name is Mohammad Zachary.
I am 62 years olds. I live in the Kosova one of the villages around in some in Eastern Region of Ghana. I
must live.
I live with my wife and three children in a huts, which we have had to be built quite a few times. Our
village has no running water. The one next to us has a few generators with no electricity.
We cultivate we cultivate millet, maize and young with it, I can feed my children and sometimes I can
sell on the market but sometimes we're hungry.
I've been told by the World Vision world dishes American NGO that I earn about 200 American dollars in
one year.
Most of the time we're hungry. I've recently cut my hand and it hurts but I kept working because I need
to get more maize for my gentleman's
two weeks later on Friday, the first of November
132
2002. Just before the Friday morning prayers, I started to feel very very ill. I was shivering with fever and
the medicine given to me by our traditional healer did not help.
Because I was too sick to walk someone was able to take me by motorcycle to the nearest public
polyclinic, which was 30 kilometers away.
It took some time because the bridge was broken in the middle and we had to go around it.
The journey was very difficult because I felt so sick and sitting on the motorbike for that long was really
painful.
As the polyclinic they told me that it was probably a bad infection in my body, but they could not say
what it was.
And then I needed to get to the hospital in across Pachi as possible was the capital because they had the
doctors and the medicine that will help.
I have my brother who lives in Lima community the crime he would help to pay for the transport.
It took me eight hours to ride by Toto and there was a roadblock. I arrived on November the second and
my brother dropped me at the rich public hospital where I was administered and registered.
133
They said I also had a bad infection in my body that had started from that cuts for which I needed
immediate treatment or I might die.
They say that to be treated, I would have to stay in the hospital for at least one week and take special
foreign drugs during that time.
Before starting the treatment, the woman at the desk the social worker asked me for 10,000 CDs that's
10 US dollar time. And I didn't have that money. The nurses took me in the hospital anyway and started
the trip. It lasted a week.
And then another week. Finally I got better and they told me I was discharged and they gave me a bill for
the drugs the bed the doctors and the food.
The bill was the total of the middle was about four times what I earned in one year I
told the lady at the desk that I cannot afford to pay the medical bills but then I will ask my brother an
extended network of friends if you could help. My brother has been asking for help in the NEMA mama
communities and from mosques around it.
Since I was discharged from the war, I am waiting for that to happen. I've been told I cannot leave the
hospital. There's a big fence around it and private security guards at the entrance which are carrying a
gun.
134
I sleep on the bed with no mattress on the floor by the entrance of the ward and they told me I will be
charged for it.
But nice nurses give me some leftovers of the patients to eat. Relatives. Friends from Nima have come
and given me some food.
And my wife and children are now also a NEMA with a relative but I worry us they have
No resources I hope my relatives can help. I was asked again by the lady at the test to pay my bill and
said I cannot afford it and my brother and my friends don't have the money either. She told me I will not
be released until the bills paid and everyday they will charge me for the bed
so
just take one or two minutes you can talk to your neighbor just your parents too.
And tell me you know Where where are the places in which the system seems to be broken what are the
you know where do you think that Muhammad Zachary is deprived of his basic
economic and social vices focus especially on that okay so you have a couple of minutes
and I did it already because the real story he was also an oral story and you're going to have a very
expressed version of what we have to do.
135
You?
You
all right.
All right time is up.
Up okay. So time is up because in the real story time was up to okay I'm trying to put you in the real
condition in which you
She is, as many of you perhaps know, is the reality of, you know, advocacy, sometimes you just don't
have the time to spend three hours thinking about. So.
Anyway.
Yes.
access to basic amenities that you need to
136
know. And
then secondly have access to each other.
There was no public transportation. And there was
no
no.
No train doctors and the
providers, you don't actually have personnel. Okay, great. Let's hear from other groups. So they have
something to say to right? You guys are doing really well. How about you guys?
Again, like she said,
is inherently like, restricting
137
is not a
prison pretty much exactly.
The most basic right, of all sorts of Universal Declaration of Human Rights. Okay, great. No, it's great. I've
done this workshop a few times, sometimes, you know, this is the obvious kind of the end of the story,
but it's definitely part of the story. And you'll see why it was important. Other things that were not
mentioned yet that some of you may have discussed.
Yes. Housing Yes.
Okay, infrastructure, infrastructure, yes.
Income.
Right.
So,
yes, you want to add something to you first, because you were already in that group? And then you Yes.
138
Yes.
Great. So the foreign drugs as part of the story, yes. Thank you actually being charged for saying that
prison? Yes, actually, exactly. Legally, this is completely wrong. So bottom line is that the story of the
system seems to be broken in many, many, many different places, whether we can find you or say that
there's a right to everything here and that all of the rights have been violated. So from purely sort of, if
you are, you know, a lawyer with hundreds of, you know, hours of time in front of you, you could try to,
you know, get as all of these issues, you could try that the right to how things are divided, and to try to
argue they argue that the lack of income or the foreign drugs, or of course, infrastructure
is at stake. But so one of the first pragmatic moves is a very obvious pragmatic moves that a lot of
human rights lawyers do in any case, okay? It's not because they're legal, it's that internal pragmatic,
they know, you have to prioritize. So you need to seek an entry point, you can't.
There's injustice isn't violations of rights pretty much everywhere. But what happened was actually the
local lawyers took the lead, knowing a little bit of the context, and were really
triggered by the idea that people were being asked to, you know, pay for, for staying, and especially that
they were being detained. Okay, so there was an idea. So one of the lawyers at the time is now a
member of parliament. The other one was, and, you know, became a president of Ghana a couple of
years later, but the idea was, you know, economic and social rights are at stake, but as you rightly say, it
might be hard to sometimes find and advocates No, because they're quite poor countries. But if you can
link this to an argument about the preservation of liberty, which seems sort of a you know, an argument
that you can get traction around and you could also look maybe, maybe legally build an argument also,
you know, create outrage that might be perhaps something that could be focused on so that's at this
moment, we decided to do with the local lawyers and the local activists was to research this a bit more
so just let me use this little side.
139
I think you have everything very poor farmer doesn't work. If it doesn't work with food, your children
water I think was mentioned electricity power.
Primary Health Care, bad roads, bad transportation, poor access to affordable health care. There's a
notion of the drugs to which I'll get back to 10, especially here, arbitrary deprivation of liberty. So we
thought there might be something here to work with in terms of creating an advocacy strategy around
this situation, rather than doing a real human rights education. Going through the general comment,
you know, one, one after the other, maybe we could think about something different. So we did a bit of
research.
Some of it had been done before, but many of it I remember going to the library, there is a prop was as
follows. And this is the sort of the legal story or the political economic story
that goes behind it. So in the mid 1980s, Ghana was trying to do is I was also trying to create a universal
health care system accessible to everyone and needed loan from the IMF and the World Bank. And as a
result, about 1/5 of the entire health budgets of Ghana was actually directly provided by by the World
Bank. Okay. But the loan conditions from the World Bank and the IMF in the mid 80s, when we got out
to one of these became one of the countries that needed loans to reimburse their debts, mid 1980s,
those loans were structured as structural adjustments, right, we just discussed it. So there were very
strong conditions. If Ghana was to have this loan, and was to continue to have 1/5 of its entire health
sector financed directly by the back, it needed to change the perspective, remember, this was here, was
it
user fees within public services, so this was me, you know, this was imposed, basically patients, which
we want it to be provided with healthcare had to pay out of their pockets, okay, before treatment. So as
a result, the Parliament of Ghana enacted what's called a user fee stated that provided
exemptions for some categories of population. So we shifted from a system that was trying to give bad,
but still universally accessible healthcare to everyone to assist them in which the default rule is that
everyone pays except for a few people, children under five civil servants, the elderly, and those quotes
unable to pay on the ground of poverty, we found that actually in the law, right, so the World Bank, said,
140
you know, everyone pays, but there are exceptions for the poor, then we realized that there was no
regulation that you know, you have legislation, and very often it's translated into detailed regulation.
But the Ministry of Health did not define what was meant by poverty, who is poor, are we using the
poverty line? Are we using something different? We also realized that they did not mean for some
hospitals that were actually giving free care.
Like they did in this case for Mohammed Zachary. And we just realized that either public hospitals failed
to treat poor people. And this is not a story that is unique to think about, you know, uninsured people in
the US or in other countries who can step into a hospital except for emergency basis, or what they did,
and we realized that Mohammed Zachary's story was not only objects and powerful, but it was
widespread.
It was all over the country and in other countries, too. There was, you know, hospital said, Okay, we're
going to treat these people but we're going to pressure essentially their networks of families and
community. If they can't pay out of pocket, these networks of support are going to pay
them as good lawyers, we tried to look at, you know, what was the law? Right? What was what can we
potentially legally ground so Ghana ratified the icescr. In 2000. There is in the Ghanaian Constitution,
Article 34. To a right to health but it's remember this notion of Directive Principles of state policies, just
like an India or Nigeria, they're not justiciable rights per se, but they were there. And the idea was that
you know, the rights, you know, what not interested should provide and you never find any kind of
litigation trying to do so.
Okay, so what I'm going to ask you to do and you will do this until four o'clock until class is over, and
then tomorrow we'll hear from you
is I'm going to speak to you in groups and try to be you know, groups of four or five more I'm letting you
organize.
141
And this is essentially what we're going to do below. This is what you're going to do, okay? This is what
happened in the same
In the real story, so when we came back with this research, we talked with local lawyers, local activists.
Yeah, we do finish at four o'clock today. That's what I had on my schedule, just 15 minutes.
And the objective was, rather than try to get at the housing and the bridges, and so let's focus on one
objective, and that objective was decided collectively, and there were heated discussions,
to try to stop the tensions in hospital for people who are unable to pay their bills. And one idea here,
which is, you know, classic and human rights advocacy, is to try to use the story of man exactly, to get at
something that is brought up, right strategic advocacy, take a case as an example, and you try to build
advocacy about it.
That's what you're gonna use. That's, that's the tested, let me finish, you will see, we'll see that that's
something that you're gonna have to figure out, you know, where you start and where you go. Okay. But
the first thing, because this is one of the pragmatic moves here, okay. What a lot of lawyers tend to do is
what you just asked, you know, what kind of legal grounds are we going to try to frame a case around.
And what I'm having you do is what a lot of lawyers don't do, because they're not trained to do so
because they don't have the time to do so because they don't really think they know how to do this. But
in this case, we really spend some time the time is, of essence, to do what's called a power analysis, a
power mapping. Okay, so before jumping to law,
the National Constitution International, I'm using the general common, the first thing to do, especially
when you're dealing with social and economic crisis, especially when you're dealing with poverty with
the stuff that is really, you know, hard, multi faced, and not, as you know, easily
142
targetable as as other forms of injustices, you try to identify all of the different actors in the story, who
have some power to affect the policy, the intention, right. And the idea was to push all of us, and I'm
going to push you now all of you to try to first of all, identify who are the different actors in the story.
And try to sort of think of them either as targets, or as potential allies, because in advocacy, you think
about that, too, right? You don't know, you don't only think necessarily, but only targets. And maybe
you'll see that some of them are, you know, one of the
so
that's the first task of the workshop is to identify all the actors in the story, trying to think of all actors
possible, and try to think whether you see them as target suspects there, of course, in the story that I've
told you, but you can think of others first. And at the same time you begin to think about this, but I don't
want you to develop this too much for them. What do you think are the relevant power is of your
objective, which is to stop this practice all around Ghana of detaining people because they can pay what
fixity changes do you as an advocacy group of local lawyers, activist women's groups, a couple of people
from abroad, want to see them make and think about at the same time, what kind of power would you
have to actually leverage those chains? So start thinking about this, but for the moment, if that's the
story, it's called Power mapping and it's mapping power. Who is an actor and historian you know, don't
start saying well this one is more important this is what I'm going to do no try to think of all of them at
the same time okay. So you have until four o'clock to do this and then we will carry on tomorrow at 915
so please be split up in groups.
Yes, sorry, sorry. My time was a bit short.
This week. I'm very limited on time because of the thing but next week,
143
so I will actually answer to you in just a few spots next week.
Think it's in the seminar room next to the dean's office.
can follow me
I think
doctoral students
do you know where the thing is
that I'm supposed to give after class? Yes. Do you know what
I know I know.
Thanks
144
anyone else?
Right
Out.
Right
very nice
Are you are you working on
working
okay well how's it going
this week very limited because it's all backed into two days but next week I have
this email me and
145
tomorrow I'll be able to make
Class 7
Better now.
I jump in Yeah work. Memorial Day
I know I'm here we're having someone from self-seeking Time to other things to do when people come
they should come let me know for me, you know I don't mind for this guy sometimes I know but then he
won't worry that the class and then the administration shouldn't have a class today
tomorrow
tomorrow, tomorrow is tomorrow this afternoon Nigel standard this morning I was told everyone is
normal. It's just this afternoon and tomorrow. Anyway, it's fine for me I understand it's just for this guy.
It's not your fault you guys are here you're doing it's not really our perspective. If people want me then
it's fine. I told him there are 53 students registered for that class three in your 53 I know I know. I have
meeting with the dean today there's 53 students registered today and I don't want to release you it's
not my job to take attendance but you know 10 missing 15 missing but this is more than more than half
so again, it's not your fault didn't know I was surprised I was shocked that they were like at most 3035
Whenever I asked them to try to check twice anyway alright, so we will still carry on and when our guest
comes what I think we'll do is that we will all you could even see or log on to zoom yourself. So you can
see what will come to samples if you have a sound or if you want to ask questions. So we all will pick up
the sound set when I speak and then if you want to ask questions
146
so if you if you want to ask question to either you move up here or I cut the cell and you asked the
question
we are continuing we are continuing with the workshop but it's complicated to do groups. So I asked you
yesterday on the basis of that story, and try to come up with what's called Power mapping right to try to
identify the different actors in the story might have something to do with it and we decided to join you
to try to classify them if you could get us as friends or targets of the possible advocacy initiatives that
you take. So who here wants to try to tell me what their thoughts and then we'll go on Zoom and see if
anyone else there has any suggestions.
30 patients and hospital personnel so one me personally, that was something that was like no other case
Yeah. You know, after the apartheid constitution of South Africa, and I was thinking over time, this is
something that can be applied to Ghana. That's the Constitution some that incorporated the Bill of
Rights, which included all those social rights. Now, citizens to get this kind of coverage from the from the
government. Yeah. So I was thinking, I mean, if this is the case, also you can reapply the Constitution or a
class action or something like that would be for me.
So, so, so this is all great. But you're going to you're going the step that lawyers usually go, which is to
think about what are the potential other cases I can pick and try to develop a similar case? Okay.
Because I think the situation that was there at the time, it would not be any more powerful to bet that.
Okay, so, but I, you know, I don't necessarily disagree with you. There remember this. Okay. So this
might have something to do with with what you're saying here. We found out that in the Constitution,
there is a right to health, just like there's a right to housing, the right to health in the South African
constitution and differences in the South African constitution is part of the Bill of Rights. And it's been
recognized for the first time in the food court case, the right to housing as a justiciable by the court
itself, gave himself the jurisdiction to adjudicate something, a case against the government with regards
to its failure to realize this is with Queens, emergency housing and lights him up here, we found out we
147
had the same reflexes, you were like, we're going to do it a new or new Treatment Action Campaign,
which is the health case. First up, you know, like to help patients. We found out here that there's a
Directive Principles of state policy. So we went for that research, but important step, which was which
was triggered both by the, the local actors, and some of the professors at the time that were witness
was the idea that you know, you would, before you go into that, because you're in your power mapping.
You're thinking already of the campaign as a case, and the case would be against the government. Okay,
so the government's here. So if we take this as, let's say, friends, targets,
we have the government.
Okay, so that's one actor, and you already have an idea of how you're going to do it. Remember, in the
in the power mapping thing I was asking you here, as you start thinking about trying to start to think
what are your very relevant powers visa vie the objectives, obviously, the government may have
something to do? What specific changes do you want them to make? This is going to be the next
exercise I'm going to ask you to? And then what power do you have just imagine your small coalition so
you're not the lawyers of the legal resources center, which are really well trained lawyers with a lot of
you know, funding and visibility in South Africa. You're a group of local lawyers. There's a professor to
from Harvard, a couple of students and mostly community based organizers. Right? So But government
but when we think about governments, okay, so other groups maybe sorry, we have Jade you're raising
your hand you want to say something? That you want to add something? Yeah, just for the power
mapping that we did yesterday with my group. Although we can't we can't hear you. I have the photo. I
haven't made it 100% For some reason, we can't hear you. Well.
Try again.
Oh, I'll check.
Okay
148
what's coming? So I see something in the chat. Let's see what the chat says. It is going to write a
message what is the one of the other groups which is here now present or on Zoom? And you probably
have to use the chat here. Did you also think of other actors? Yes. Great. So that was gonna say you my
next step was like okay, let's unpack this for So I see the World Bank and the IMF desperate. So the
government the government is a lot of things. What's How did you unpack the government's?
Finance? Theory, lease and stuff like that welfare, social justice watch a farmer to watch up separately
which one Parliament's Great Recession and job reports. Okay. So you have the executive branch, you
have the arguments.
I'm getting help from my friend.
Wonderful. But that's that's great because you know, very often one thinks, Okay, as a Cuban white
lawyers, you know, who's the duty bear who can be helped me to be responsible for this within the
government. But you're absolutely right, you have to unpack in that story. The Ministry of Health
remember, the Ministry of Health, if you go back to these. To this legal policy backdrop, the Ministry of
Health did not define who is meant to be exempted from pay, right. Who was poor, and it didn't
reimburse hospitals that gave free care. But then who else is involved? The Ministry of Finance, the
Ministry of Finance should also take a part in the budgetary allocation of resources and who, in the
government? Where is the budget decided? It's a different branch, it's the parliament. Okay. And you
talked about the security guards, the security guards in the story, I'll try the security guards. But they're
probably hired, of course, the public, they're hired by a branch of the government and one branch of the
government is, in this case, the public hospital, but it's something different. So there's a government.
There's the hospital, you mentioned. Social Welfare. Thank you that.
Yeah.
149
So where do you see the social welfare?
Starting with a
question of what services are available to eligible,
I think we thought they would be the ones defining
these. So they will be there too. So you can think about the social welfare in the presence of the
government, but you can also so everything could be unpacked, if you think about the hospital. Right?
Who is in the hospital? There are different actors in the hospital? Does that mean administrator? So
there's the administrator of the hospital, who's the one who basically takes the decision to lock out
people. There's the nurses and doctors, the nurses keep feeding him. Right. So then the question is, you
know, should we put them here as targets? Or could we potentially allied with them? Did you think
about that? How did you call it anyone think about the nurses? Yes. I
don't know what the
mechanism is. Locked up. Does that?
Okay, technically, is the security private security guards, which was hired by the director of the hospital
of the hospital? Private secure private security guards, in fact, okay. But so the hospital police? We did
try that. And the police didn't want anything. Interesting. Yeah. Then what didn't want to do anything
since this is this is the hospital. This is not our jurisdiction. It's not uncommon, essentially. We did try
that. So if you if you actually unpack the hospital, my point here, the point of this is that there were
different actors, some of which you could think about as targets of an advocacy campaign. And some of
150
it maybe as potential allies. What you have the nurses, you have the doctors. Sure. Sure, sure. No,
absolutely. But you know, I mean, I'm talking about jail, but then potential potential. Okay, let's, let's see
what we have here. So the World Bank and the IMF, yes. Okay. As as you have a
kind of traditional
So the judiciary definitely is part of the story, then the next question is going to be how do you use it?
How do you how do you have you engaged with the judiciary?
But the big question is not if it's possible, it's because
yeah, but that's why I insisted in the, in the story a few times, it's a public hospital, clinic where you go
to the first time it's a public hospital.
Hold the nurses, the doctors responsible? What
do they have to change? Again, this is the thing, the point of doing the power mapping is trying to sort
of unpack all first about all these other actors. And then think about, you know, who you want to push
against, as the most, you know, the most efficient strategically target, and perhaps the most
responsible, but not necessarily the most responsible, but the most leverage you can actually get from
targeting one actor. But if you think about it as an advocacy campaign, you cannot only think about
who's responsible and who am I going to sue? Okay, because it might not actually work. So you have to
think this is the at least that the idea, but a pragmatic approach, and many, many lawyers and advocates
doing these kinds of campaigns are thinking like that they think maybe I will sue. And I'm not saying you
shouldn't Sue, saying we didn't. So you will see later what you decide to do. But that there might be
other ways to mobilize leverage to actually get to the objective. And the idea is to sort of maybe get get
out of the idea of who are we going to sue first, with the idea that maybe we're going to submit we have
to think first about all the other actors, the judiciary, that's part of suing perhaps, okay, maybe there's
151
other ways to get into judiciary? Just Just one second, the World Bank and the IMF. Yes, that's really
important, because classically, human rights lawyers think, okay, there's a, there's a, there's a human
rights issues here, we are going to target the government because it's the duty bearer, maybe through
constitutional case, or maybe through some kind of litigation. But in that story, I insisted a few times
that the World Bank was actually directly responsible for finding saying 1/5 of the budgets, okay, so
maybe the World Bank can be leveraged somehow it has something to do. And it also when he gave the
load to Ganon, structural adjustment, it said, you have to make people pay out of their pocket, but you
should exempt the poor. Okay. So, you know, maybe the World Bank, the World Bank is definitely in the
story. And that's also, you know, an approach that I would qualify as a pragmatic one, which is, you
know, you don't only go for the states, you think about all of the various factors. And the idea here is
that it's not only especially for your cash strapped country, indented with a loan from the bank, under
structural adjustment, this is the context here, it cannot be maybe just only the government, there
might be other targets or friends or elements to go. So trace the organization structure of the
government look at not just ministers, but a local set local administrations, absolutely. Local
administration, local administration, so local MPs, this is actually something in the real story that we
thought about, you know, the local MPs, maybe the police won't do anything, and they wouldn't want to
do it. But the local MPs, who actually often were also traditional leaders, were quite, you know,
important people locally. So maybe there was something to do that, not that they were necessarily
responsible, but they were perhaps part of the story, in thinking about how we could cook will be alive,
because our point was not necessarily to build a case of point was to get not just Mohamed Zachary but
people like him out of the jail in a way that will be structurally changing, not just him getting out, but
actually something that will change. And we started touches all country, pharmaceutical company that
how they might be allies and payments for forgiveness plan for the poor. Yes, there was a story of the
foreign drugs, okay. Remember the story of the foreign drug he has to go and he has to use foreign
drugs for which you can pay. So possibly, yes, foreign drugs are also part of the story when you think
about foreign drugs, as just as you said, you know, if it was a private hospital would be completely
different ballgame. But the idea, again, to have a sort of a wide ranging or pragmatic approach is to say
we can't just jump to the general comments number 14 on the right to health and see all the ways in
which the state failed to realize its obligation to progressively realize the right to access to healthcare for
all Ghanians we have to look at all the actors. And in this case, you might have the World Bank, you
might have private actors or private companies, what are you going to do? You can really sue them and
maybe you can enlist them in some way to provide some political leverage, okay. Are in drugs? Okay.
Yes,
we are people who are in the opposition legislature are
made up of local constituents. So
152
opposition that. Also, they actually have the right and the power to make use.
So, yes, absolutely. Okay. All these are, are great, actually, because you, you're expanding, in a way, the
way one thinks about advocacy, you know, obviously, the state seems to be responsible in the reflex can
be to sue and many of us said that, you know, same kind of urgent, we had just read, with boom, and all
these cases. But the idea was to sort of this is why think power mapping is something that that is really
important. And that is not always done by human rights lawyers is a moment in which you sort of pause
you refrain from doing this, even if your reflex as a qualified lawyer is all you have you will be is to is to
go for that. And to essentially look at the different steps, let me see if I remember correctly, because this
has been a while if we have everyone in that list, so in the hospital, in the hospital to be contacted. So
that's what my point about the social welfare in the in the hospital, there was a social welfare officer
who kept asking the Mohammed Zachary, for money you kept charging him, there was the director of
the hospital, there's the security guards, it's the doctors and the nurses who potentially could be allies,
then there is, of course, the government with the Ministry of Health, but the distinction with the
Parliament, the World Bank, the district assembly, which are the local MPs, and, you know, opposition
leaders, traditional leaders. So we did actually, in the true story map out a little bit, all of our potential
friends and adversaries. Absolutely. So I was going to add, you know, one other one other element, if
you think about advocacy, and most lawyers actually do this, you know, even when they suit you know,
how can you, you know, think about the media. Today, you guys might think about, you know, social
media, how do you you know, all of these advocacy tools and tactics, which you may actually be able to
do the question why traffic companies necessarily cannot be sued and deceived. No private companies
could not, of course, you know, quickly to build any question about private companies in this case is
then you have to think about so once you map out all of the actors actors in the story, the next question
is going to be okay, put yourself in the shoes that we were in. We had, I think two weeks in front of us.
So even that is to a small group with very little resources. What do you do? How do you actually targets
specific actors and try to come up with a logical campaign, and you can't do all of it. So in theory
completely, you could go about and try to actually get to something sue the private companies go after
the pharmaceutical drugs, go after the World Bank, maybe you can't do everything. And very often,
that's reality, you can't do it in the first few map power. And then you try to think about, Okay, where
am I going to put my resources? It's you have to figure out what your resources are, what your power is,
and how you going to sequence a number of tactics into a campaign. Okay, that's what actually
happened in the story and what that's what I'm going to ask you to do now. Yes.
Go back Sure. Of course. Yes.
153
I just want to get
the subset that we set out if you have one particular story, civil society at Just your
specific people
that have different opinions
pick up the phone and
write. So so the out? So that's a really good question. I mean, the the idea, as I said, when we came was
to actually engage with people's general sense that their main problem in these communities in these
really marginalized communities was sanitation and health care, and especially their general access to
health care, okay. And then this is when we were ready to try to engage in Duke human rights education
and try to sort of build people's right what's called Rights consciousness in order to build coalitions and
future movements of either advocacy or even translation of rights consciousness into political
movements, we were happy to do that. But then the story came. And it was a story of one person. But
what was brilliant was this guy who is now a member of parliament in Ghana saw the opening of
actually transforming an advocacy campaign about one person and make it interesting that into a much
broader what's called strategic advocacy, you will, he will be epitomize, you will be symbol, symbolic of,
you know, a situation that is widespread around the country. And the idea was precisely not just to get
him out of jail, but to make a statement through the advocacy, try to push as much as possible, but the
shame and the blame on those responsible to actually get at the broader objective of not just stopping
his detention and getting home, but stopping all of the tensions and making sure that the system, again,
financing healthcare system, which was completely, you know, this functional, because the poor were
not basically exempted, would actually be implemented. And we'll be done done so in the most
progressive way as possible to really realize that promise, and the general comment on the right to
health, which is to make health accessible, so that was the objective, whether the question of whether it
was an advocacy or political move, is really a good one for that guy who was already into politics, it was
already almost an advocacy slash political move. Exactly. But the point here was that, you know, again,
from a very pragmatic point of view, the idea was not to build and when a case is, was to generate
154
power, legal power, advocacy, power, political power, in order to change things in the system. Okay. So
that is really good question you guys. Let me tell you, what happens when now we go too fast in the
story, what I want you, I'm sorry, I'm gonna have to ask you to work with it. And then we're gonna,
we're gonna get back to what happened at the story. Okay. So what I want you now to do, and if you can
split again, in groups, and those of you on Zoom, I don't know how many you are now. But I think you
can just talk among yourselves is the following. Okay, what I'm going to ask you to do is to, which we
actually did, we split ourselves between community organizers, local lawyers, some of the students and
professors were there. And we did sort of, you know, quick, you know, working groups to decide what
our, what our strategy was, okay. And we each were assigned, you know, one or two of these targets of
friends. And we had to think about, you know, a sequence of tactics that could be used primarily to
target or to enlist this, this target or friend. Okay. So I'm gonna we didn't decide this randomly. There
were real discussions about where to go first, should we go against the state first, should we go against
a World Bank? Should we try to build a coalition with local MPs or the other all that was part of the
discussion, and it was really led by the by the local finance because of their sense of politics, right? So
I'm going to ask you to do this. So maybe one up to this group here, you guys could focus on let's say,
the world back, okay. Think about, you know, three bullet points, three things that you think imagine.
It's not us sitting here, it's, you know, imagine that you're there with the resources that I talked about,
maybe the three of you can join together. Or you want to this is your group, so maybe one of you can
join here so that they're three and you're not five.
And then you guys can think about so the government If you mentioned the government that we saw
that there are different pieces of the government think about various tactics, or sequence of tactics that
you are thinking would be the good one to try to get at the government. Okay. And maybe so you
mentioned, you know, the opposition. So one of the other things that we thought about in the
community, and this was a community organizer was like, let's focus on how we can enlist the
communities, the communities, which are high politically highly sensitive communities, how do we enlist
them? How do we make them sort of part of this legal or not legal, political or advocacy campaign?
Okay, so you guys focus on community, you guys do to at least and then you want to do all right
governments? And you guys think about the world? Okay, so think about, you know, 1010 to 15 minutes
max to do that, think about, ideally, you know, two or three steps, or what kind of tactics you would use
and how you will sequence those into again, thank you. Sorry. So, no, I mean, communities were quite
politically, that's what I said at the very beginning of the story, they were known as politically quite so
the government was always watching because there was a lot of often unrest in these communities, you
know, something we had been a lot of sort of protests in the past, it was a very politically active set of
community within the city of a cry was known because a lot of people were quite poor. A lot of people
came from different parts of the country were from a different religion, and the government was always
sort of watching it a bit like milk on the fire, like because it was always so has always been a politically
sensitive community, at least for the government to watch. Okay, so it's a community that you can get
organized quite quickly, sometimes even violently. Okay. That's what I mean by political. I know, I know,
I'm sorry. I have to say it again. So those of you on Zoom, going to split you up into groups, and you can
do the same, you can try to focus. I'll let you decide what you want to focus either on the government or
155
on the World Bank, or on the community. I'm going to split you up now. And then I think if you
participate, you can participate via chat. I'll try to do my best to manage all of this at the same time.
Think. See You. Evening I'm not sure right
Okay one more minutes
up okay
all right guys let's do it let's hear it let's hear it so we'll we'll hear from people in the classroom and if we
have time you guys actually can write in the chat already what you came up with in your groups in on
zoom so we'll have we'll see if we have time to sort of discuss it too so the World Bank
have the inspection by individual it impacts arising out of in connection with Absolutely. There's some
type of role or something
in the process of taking very back
pressure is complicated. Proceed. Great. So
you guys did great. And I remember that we actually did the same, we tried to look at the time and they
were not so elaborate, but they are, they're also, after actually pressure, the whole will do the whole,
we have a session on the World Bank and human rights and the pressure can come actually not from
156
human rights, but from environmental rights campaign in against the Narmada dam in India. In the 90s,
that consequences, that was the creation of an inspection panel at the level of the World Bank. But
you're right, you have to prove that there's a link to the World Bank project, World Bank finance project
or some form of structural adjustment loan in the case, you know, the real story, we knew all of that,
but we were quite conscious of our own resources as a small, you know, very terrigenous group of
people that it might actually be tricky to do that, we still thought, again, thinking pragmatically that the
World Bank needed to be part of it. And the way the World Bank was engaged was actually more, you
know, very, very local. One of the lawyers there knew someone who'd worked at the World Bank office,
we managed to get an appointment in the local boys, now the guy who's a member of parliament
actually went, we wrote the letter, which was signed by this professor from Harvard, because we
thought that could actually that is a resource that you could leverage at that time to actually get the
World Bank engaged in the story. And I will explain exactly how we made that manage to bring them to,
to the story. But the idea definitely was that there was some kind of linkage, and that the World Bank
could definitely not necessarily put to blame, although they are because, you know, cash and carry
system is something that they impose on Ghana, but in the story, the idea was more to leverage the
World Bank to put pressure on, you know, the actors that actually hadn't implemented a system that
was meant to exempt the poor from having to pay out of their pockets. Okay. The government? Yes.
Okay, that's fine.
So my suggestion was that we start by trying to enlist the people in charge of welfare and take care of
the poor as allies, then address the rest of government, about making sure first of all that the poor
exempt from payment, and then worry about,
get someone else to pay or lift the requirements.
And my, my two colleagues here have different ideas about starting to siling loads against government
suing government in the Supreme Court, and even their
suggestion just to
file separate buses,
157
doctors hospitals,
and, and the background to that, because something specification, which supports the whole patient,
Doctor, this constitution, 60s, however, gonna still violate the rights left and right. Throughout the years,
nothing changed. So when there's such a severe situation or violation of human rights and social rights,
and I do that individually, on a very private level, not too much, you want to change the situation,
majorly. You need to do something that in some ways, change or create a crisis for which things will be
done. So that's why we tended to accept any idea of changing things. The Digital Officer way either
international or state
okay that's fine a lot of us thought the same How about you guys yes team from the bottom Yes? Some
some form of community organizing social movements
probably money
comes from the rollback. But
what about the other 430? I
met to hold extra funds for what's happening just for scholarships no one there
Yes. Yeah, I think yes, exactly. So the so
158
my thought was, okay, let's go. Let's
go traditional medicine. And that apparently is
expected.
Okay, so all of you guys came up with actually really interesting ideas, some of which, which were the
same. Someone you mentioned before, though this is from from now, okay. The press as a tactic, yes,
creating petitions and going from village to village to have them sign that people suffered. So yes, that's
actually happening in the news story. So I'm just going to take one or two minutes, and I want to just
give you a just two or three minutes break before we have our guests. We will resume when we next
week, I will I will give a more fuller explanation. I also send something something in writing so that you
all have it. So in the real story. A lot of that happened. Okay, so we thought the world bank so we
reached out to the World Bank, we also reached out to the US Ambassador to try to leverage some kind
of momentum to create, as you said earlier, some kind of sense of crisis. But around that case, as a
symbol, we reached out to other communities in which the same story was happening to gather
testimony, we got some nurses to accept to sort of testify about what they'd seen from their patient of
the hospital. And the whole idea was at this to organize all of this and organize the community by going
door to door to actually have people sign a petition, about the fact that there were rights for everyone
to access health care that bothered Zachary was in prison, jail hospital, like many people, we have a
whole actually, you know, we went around, you know, with youth groups to get some petitions
organized. The idea was to sort of have a petition, have some members of committee bring it to
parliament's and at the same time, filing lawsuits, filed a lawsuit against the Ministry of Health for failing
to the finance, finance the exemption for the poor. And all of that was going to happen at one moment,
we organized a big sort of media, big press conference with a World Bank with the US ambassador, we
use whatever resources we we had. And the idea at this press conference would have to have some
nurses actually testify about what they've seen. And we had everything ready, essentially. Okay to sue.
And the night before we were about to sue, someone came in the hospital and paid for Muhammad
Zachary still and he was freed up from the hospital. We found out later it was someone from the
government's because they were worried about the politically sensitive nature of the advocacy
campaign and about how this might be protests and see the TV these Harvard students all of that so
they paid okay. And then that lawyer Mahatma It's my friend Mohammed. But we had so we were going
to be honest, we were very upset. We thought we were going to do food boom, we thought we were
159
going to do create a new. We weren't we were, we were like, you know, the lawyers, we were like,
we're going to make history. We were inspired by South Africa, we were so we were like, we couldn't
dare to say it. And we were upset as lawyers. But he thought, we're gonna do better than that. We're
not gonna think about what case we can, we're gonna say we're going to change the remedy, we are
going to sue for wrongful imprisonment to get damages. But when we get so we're going to change the
remedy. But we're going to keep in the remedy. One of the things that so you mentioned try to figure
out suing that can change things systematically. And that is something we incorporated in the remedy
that comes from actually a doctrinal or theoretic theoretical legal school of thought that's called legal
experimentalism. Some of you might have heard about legal experimentalism, is the idea to ask judges
not to ask, you know, you know, when we when you deal with sort of, you know, your bureaucratic
settings, or social services or prisons in the US or social welfare, the idea is for judges to try to get
stakeholders basically to work a solution together, rather than the judge telling the government is to
provide X number of welfare services or social services or prisons or housing, sorry, mediation,
not mediation, it's court mandated discussion amongst stakeholders, basically, you have a, you know,
Bill Simon and Charles sable work with the theoreticians of that in the US in the 2000s. And we were at a
time influenced by that. And it's the idea to have in the remedy, something that will actually force the
people who have to come up with a solution to sit together and come back to court six months later and
show what they came up with. And that was something we included in the remedy when the idea was to
have the community members themselves sit down with the World Bank with the Ministry of Finance to
design a healthcare mechanism financing, and healthcare financing system. That was sort of the legal
sort of innovation that we put in there. But what this guy Mahama had the idea to do was to actually go
and talk to Muhammad, Zachary, he want to talk to them. He just came out with it. And he said, Would
you accept to testify? And he did. So the press conference was actually a very moving moments. So we
were sort of like, okay, he came and he told the story in front of the TV in front of the press in front of
the US ambassador from the World Bank, representative, etc. And there was members of the
community, some of them wanted to march. But the lawyers managed to convince him was a very, very
tight decision to not do this, because they were worried that it would be sort of used at the government
that sort of kind of this, this violent TV as a political thing. But anyway, there's a whole chapter that I had
a chance to write with some of the actors of the story, which I will put on Moodle, so you can do it. I'll
also send you a short, you know, summary of what the important things are including this notion that
this is remedies. The remedy I'm just putting into here was requiring the Ministry of Health to set up an
implemented procedure for distinguishing obviously the poor from patients to be paid and time treated
after consultations with members of parliament ministry of finance, health system and finance as care
and low income health consumer groups. This is sort of a legal experimental remedy that was based on
the theories of legal experimentalism and regulatory negotiations. I will explain all this next week. I will
stop sharing this now because I will be right back those who are not on a
Bucha Jamies forklift
160
at all. No Bucha purpose cars are not on that problem do so movement on this
good job it felt interesting to have a job having to Sony see. So I'm going to ask all of you to go on Zoom.
Those of you who are in the classroom if you can go on to on the on the zoom session. And then we're
going to see if you can actually hear on your computers. You can you can hear okay, so then that's great.
Don't even they can hear to elevate I'm sorry. This is a this is a hybrid. Hybrid. We have some students in
the classroom we have some students on Zoom. I am asking all of you who are on Zoom who are now in
the classroom are going to Like opening your cameras, so that that he can actually they can see you
okay
it seems that the volume doesn't really go very high
us to put yourself on mute, because otherwise,
I know that's what I thought I'd do. So going out
and buy your shoes man
thank you, thank you so much. Okay, so So let's, let's, let's start. Okay, we'll, we'll see how it goes. But I
think if everyone loves it on Zoom, you will be able to see. So we're shifting completely our gear now.
And we're moving forwards to a topic in this class, which normally would have come a bit later been a
waste of time carry myself today to the chicken futures. Good. Okay, that'd be the good, I had the
161
pleasure to know for quite a number of years, when we first actually collaborated through the clinic at
the university and some of our students did some work, along with various teams trying to design a tool
on human rights impact assessment, actually, for some, some one of the projects. LV is a wonderful
person, I got to know him personally, he has a wonderful trajectory. He was a graduate of Sasebo, he
worked as a, as a journalist, he worked, he has a background in working with with NGOs, actually. And
for a number of years now it's been really, the person at Michelin, the biggest tire Corporation, tire
company in the world to develop. So he's head of the relations with with with NGOs, is now based
actually in Bangkok. He was embarrassed for quite a while. And he really is a leading figure in France, of
a number of actors within big transnational corporations who really try to change things from the inside
in terms of how businesses would consider their own responsibilities and possibilities, but also
obligation with regards to sustainable development and in particular with regards to human rights. So
away, thank you so much for for joining us. It's you're four hours ahead of us. And we're all here in Tel
Aviv, and delighted to welcome to you to this class. Today, so we'll let LV talk for a little while, and then
I'm hoping we can engage in into questions. Yes, sir. Yes, I will. Right. Absolutely. Okay. So the floor is
yours. I think you all have to try a lesson from it from your computer, and I will try to do the same
computer.
Okay, thank you very much. Me. I thought Israel was an IT oriented country, but obviously not enough.
So thank you very much. I'm very happy to be with you today. I wish I could be with you in Tel Aviv, of
course, which is a city I like very much. But but as Jamie said, I'm based in Bangkok. And so I'm talking
from there. What I suggest I guess we have more or less one and a half originally we in total, is that
correct? Okay, great. So, I propose to spend half of the time I will explain to you what is michaleen and
what we are doing in terms of CSR and how we do it and why. And then we go for a q&a, which I think
would be probably more interesting for for for both parts. So in short, mutually michaleen As you know,
is a French multinational company. It's a true meet international in the sense that there are offices in
180 countries and factories in in 30 countries. The company employs about 130,000 people, all
nationalities, all kinds of people, and it has a turnover of about 25 billion euros, so it's a middle size,
French multinational and of course, Mishnah as you know, produces many tires, but not only tires, it's
also producing services to mobility in maps, guides and six IDs. One important point, the headquarters in
mission of Mishnah is not in Paris. This is the only French multinational with headquarters in the
countryside. In this case, including federal. And this has its importance, that means that it's a different
mentality from Yosemite National is very much countryside oriented, family oriented, people oriented.
And among the five core values of the company, the first one is respect for people. And it's not by
chance, this is very deep into the roots of the company from from the beginning 110 years ago, or 20
years ago. So it's respectful people respect for facts. It's a company managed by engineers, they don't
like to talk about things which are not established based on facts, respect for investors, investors give
money to the company for the company to accomplish its mission, we shall not play with the money of
the investors, respect for clients. If you buy a Michelin tire, you expect a certain quality of product, a
certain quality of a certain level of CSR. So we can play with that. And first, the fifth value is respect for
the environment.
162
I want to emphasize the fact that this is not just to whatever window dressing or something like that this
is very, very deep in the roots of the company. Again, it was created by the machine brothers. From the
beginning, it was a very family oriented company with a strong Catholic background, countryside
oriented, and often where it's coming from is the center of France is very traditional and conservative.
And this mentality this culture has remained on till today, and has also spread overseas. If you go to
Michigan factory in the US, or in Mexico, or in China, or in Japan, or wherever you want, you will find the
same people thinking the same way with the same values, whatever the nationality, whatever the
background, whatever the religion. And this has been built, year after year after year, by different means
to really build a company culture, which is again, very strong by mutually. So if everything was so good, I
wouldn't be here to talk today. Because of course, there will be no story to tell. But things didn't go so
well, a few years ago. And I will summarize very briefly what happened to us, and what was the impact
in the company and what has been the impact for the company for the eight past years. We decided in
2008 to build a large factory, a large tire factory in India, in the state of Tamil Nadu in South India, where
it's located 40% of the car industry in India. And we found an industrial park, which has been created by
the government of Tamil Nadu, we signed an MOU contracts to use the park and we started to build a
factory with the machine mentality, respecting the law, talking to the people trying to benefit to the
people and so on and so forth. So we did everything perfectly well. And we're very proud of that. But
surprisingly, something wrong happened. We started to receive a letter from an NGO saying, Oh, you're
going to build a factory in the small village of Tebow in South India, we don't feel comfortable, you
know, we suspect that the land has been stolen by the Indian government from the farmers. You should
there's a trial, you should pay some compensation. So we stopped the process, we started to talk with
the NGO, we found out that actually the law was perfectly respected, there was no real reason to stop
the project, and we carry them. And then over one year, it was in 2012, tensions increased step by step.
From the very simple and friendly letter, we escalated to a much more complicated issue, where the set
of NGOs not only one but three NGOs or what to NGOs when you noon and two Indian NGO on top of
that made the coalition against mitula and put the case in front of OECD national point of contact. I
don't know whether you are familiar with OECD and OECD NCP will summarize very briefly, OECD as you
know, is an international organization for the development of business between developed countries.
And OECD has issued in the latest version is from 2011 to general principles for multinational
companies. It's a 30 Pages document, which I encourage you to read, which explains how leftish national
company should operate. To match with, let's say, environmental and social expectations, and it says
why all multinational and should do this should not do that, and so on and so forth. It's not alone, it's
just a document, it's softlock. It's just an advice, but you'd better respect it. And if you don't respect it,
OECD has created kinds of tribunals called national contact point, I'm sorry, the name is a bit ridiculous
and hard to understand. But that's the name which was given to it. And in each country, you have a kind
of this this national contact point, which is almost like a tribunal, with representatives of different
ministries, ministry for industry, ministry, for Foreign Affairs, ministry, for Labor Affairs, and so on and so
forth. In some countries, representatives of trade unions, and even in some countries, representative of
NGOs. And when there is a complaint, from an NGO, against the minute multinational, sent to the
national contact point, there is a kind of trial that can last year in one year. And at the end of the day,
the national contact contact point will say, yes, the multinational company has respected the general
principles, addicted by OECD, or no, it has betrayed it, it's very bad, and it should change its habits. Now,
as I said, this is soft, low. So officially, there are no consequences. But of course, if you're a very well
163
reputated company, and you have a case in front of OECD, and you're condemned, that's very bad for
your image, and it has a very bad effects on your on your business. So to make it short, we went through
this process, there was 80, there were 80 pages of accusations against insha. Allah, You have stolen the
land, you have made discrimination towards workers, you have destroyed water resources by the law.
And we made the turf investigation, we found out that all this was not true, that actually we fully
respected the law. We respected the land rights, we respected natural resources, and so on and so
forth. We should throw in that 50 pages we bought with 2500 pages of appendix. And that was the end
of the story.
Well, actually, it was the beginning of the story. Because, of course, OECD said mission, your perfect
company, you do things well, perfect, no, there's no story. But we realized, after this, this event, that we
missed one important point. The point is that we didn't have a very, we didn't have a dialogue
elaborated enough with civil society. We always had good local dialogue with small NGOs, for instance,
or with some local stakeholders, but we missed a global worldwide approach of civil society. And we
decided that we had to completely review internally, the way we interact with stakeholders at large. So
we started by writing a kind of practical guide on how to interact with stakeholders how to interact with
NGOs, in particular, we then developed internal training at all the level of the companies starting from
the executive committee, and for the top 20 managers, then the top 500, then the communication
network, public access network, environment network, and so on and so forth, to make sure that we
had a common vision worldwide, on how to interact with all the stakeholders on a national level, on a
regional level, and on a worldwide worldwide scale. And just after this, this this work, which took us a
year, we decided to create a position which I have, which I hold today of a person who is responsible for
the worldwide dialogue with civil society and with NGOs, and aid to the manager network of 30 local
correspondents in 30 countries who, in real time, whenever there is the slight beginning of a conflict
with a local stakeholder for whatever topic. The information is captured, sent to the headquarters, in
this case in Bangkok, analyzed and then we take action to avoid what happened in India, where we
somehow ignored weak signals that something was going wrong. In the case of India, I think we were
legally right. But we were on topologically wrong. What was our mistake? The mistake was not that we
did not respect the law. We did respect the law. We did also survey you know, 5000 families to
understand what Were there CSR needs, you know, we created whatever infrastructure for medecine,
private schools, stuff like that. But we missed one important point, which they did from two centuries
ago, when the conflict started between farmers and people from the city. And actually, what we realized
over time is that people from the city, who are Bahaman, somehow took opportunity took advantage of
the independence of India, in 19, I guess for 47, or 48, I don't remember to take the land of the poor
farmers from a low, low social background, and pretend to be public land, while actually it was their
private land. So everything was legal. But everything was biased from the beginning. And we should
have noticed that, and we would have noticed that, if at that time, we had in place a way to capture this
information, and to somehow integrate on top of legal requirements, non formal requirements, and we
would have suddenly avoided this crisis. Now the entire crisis, and that ended up very well the factory
was beta, it works well. And, and it's no, it's past history. But since then, we have changed the way we
operate. As I mentioned before, we've made huge internal training to make sure that all managers in the
company, and you're talking of 130,000 people, so that's about you know, 10,000 managers are aware
164
of the need not only to respect the law, but to go one step beyond. And number two, we have put in
place, a formal organization to capture the information and manage it. And number three, we have
developed a methodology to anticipate this crisis. And basically, my work, our work in this civil society,
Management System consists in first, identifying all the topics that in a given country can be cause of
problems. It could be, for instance, water issue, air quality issue, employment of whatever disabled
people.
First issue, whatever country by country, we don't define, we have lists of potential issues. For each
issue, we try to evaluate the probability of the risk. And the criticism of the risk, a risk is likely to be too
big to happen. But maybe it's not important. In some of the cases, the risk is very, very low, there's a low
chance that it happens. But if it happens to be a problem, that's the first step of our work. The second
step, we don't define the key stakeholders that might take advantage of this risk to become vocal or
aggressive. So that means that in each country, we try to identify the relevant NGOs, or the relevant
experts or influencers. And we try to map out, map out who are the people we should talk to, in
advance. And that the third part of the work, we try to anticipate conflicts by contacting the right person
in the right NGO, by exposing the problem and by working on the issue together with that person or that
group of person, and we'll give you an example very soon. And the force aspect of the work of our team
consists of managing crisis. And of course, even though we tried to do everything well, there are crisis
from time to time, I'm going to give you a few examples. To be more specific. I would like to talk now
about one topic on which I think we have well anticipated a potential huge crisis. You each heard about
the buying oil issue. Now many people on earth believe by oil is bad, bad for your health. Actually, palm
oil is not bad for your health at all. It's very safe, you can use pine oil. The problem with spine oil is
deforestation is the risk that when you develop buying oil, you need land and the land will take it when
you can grow by an oil which is where you are first and they will complain by your by your WWF and
Greenpeace against deforestation against buying oil, which turned out to be a disaster for all the
companies who's in by for instance, Nestle who produces you know, candy bars or Nutella material is
utilized met with buying oil. So this company faced huge difficulties, huge problems, because he did not
anticipate the risk. And after the story we had in India, we said okay, the same is going to happen to us.
So let's find out in our business What could be the equivalent of the buying oil campaign? How can we
prevent it? How can we work in advance with NGOs, to avoid this topic, to become really a burden for
the company, and not only for the company, but for all the industry. And very quickly, we follow that
natural rubber, we probably will be the next big topic. So we said, Okay, we are using natural rubber to
produce tires. Obviously, Michelin is the biggest buyer in the world, we buy like, you know, 12 14% of
the world production, it's an almost very, very important quantity. So if NGOs are to challenge time
makers, on the natural rubber industry, of course, they will target Michela even though as I believe we
have the best company, and we really make sure that the rubber we buy does not come from
deforestation, they will attack me, Sheila, because Michelle, that's really the brand to attack if you want
to talk about tires, and rubber. So we said, Okay, we cannot wait for that. Let's take the initiative. And
what did we do? In 2015, we first wrote our public commitment towards sustainable natural rubber. We
said, Okay, we've been using rubber for 100 years, there was never any problem. We know how to do it.
It's perfectly friendly to the environment. There's no environmental problem with rubber at all. But let's
take the initiative to make it explicit. So what we did, instead of writing by ourselves in our office, know
165
what, what we should do. We contacted the most address NGOs, and asked them to come to our
headquarters in Klamath fell. So Greenpeace, Global Witness WWF BirdLife International rainforest
islands, but also amnesty, International, Human Rights Watch, and so on, and so forth. All those who
had something to say, either on social issues, or environmental issues.
Now, for your generation, it seems obvious, but for the managers of Michigan ThermoFit, on inviting
NGOs, like Greenpeace, at the headquarters, to speak with the CEO, and with members of the executive
committee was never done in the past. And there was a huge stress, what's going to happen, they're
going to attack us, you know, they will enter the headquarters and they will create problems. It's very
dangerous. So half of the company said no, no way, we're not going to do that. And the other half said,
Yes, we should do that. Because that's the way for future, we cannot ignore the growing importance of
civil society. We cannot ignore that today, NGOs can build an international coalition within 24 hours,
and use social networks to campaign at a very low cost and create huge damages to the brand. So after
long discussions, we decided to go for it, we invited these NGOs, and we explained to them our vision of
natural rubber. And I will explain to you in a few minutes when it is about. And guess what? It worked
very well. Because actually, the NGOs were extremely surprised that we took the initiative, we
multinational capitalist company, who go to NGOs, and tell them Well, first, we recognize your
existence. We recognize your legitimacy, legitimacy, we recognize your expertise. You we think you can
help us to develop our business. We think we can do something together that will be beneficial for all of
us, NGOs, companies, and public bodies and public opinion. So let's work on that. They were very, very
surprised. And after two days in the company, after having met top management at the Met engineers
lesson to us, they came back home with a completely different mindset. What did we tell them? Very
simple. We tell we told them well, you're talking about buying all different stations and this and that.
Very, not very good. We never talked about natural rubber. Why? Wake up. There's another time boom,
Time Bomb you're not even aware of. Today you have 800 and 800 million cars on Earth. To put tires on
these these 800 million cars, you need 12 million tonnes of rubber, which means 12 million hectares of
land, one tonne per hectare between now and 2000 and 50 there will be 1.6 billion cars on Earth, or
hopefully not, but this is what is what was planned at that time. So it's mathematical, where we need
not 12 million tonnes of rubber, we will need 24 million tonnes of rubber. And we will not need 12
million hectares of land, we will need 24 million hectares of land. And the problem with rubber is that
you cannot grow it in the Negev desert, you have to grow rubber in specific areas where you have the
right level of temperature, humidity and so on so forth. Meaning if we do nothing, 12 million hectares of
primary forest will disappear mechanically, and nobody will be able to prevent it. Impossible. So if you're
interested to save 12 million hectares of forest, don't campaign against us that will be useless campaign
with us to change habits, and in particular farmers habits. Let's build a coalition with which we will
define international standards. And altogether we will change not only the behavior of mission, but the
behavior of the worldwide industry. And believe it or not, they were very interested in this approach. In
this approach. We, together with these NGOs, what's the midstream commitment towards sustainable
natural rubber, which included for instance commitment towards zero deforestation and so on and so
forth.
166
We convinced them to create a platform for automakers, which has been has been built in 2018 global
platform for sustainable natural rubber, in which you have representatives of farmers, rubber
producers, tire makers, car makers, NGOs, academics, and altogether. We define the roadmap towards
sustainable natural rubber. And we explain to all the value chain, how you can increase just to make him
short. Of course, it's much more complex than that, but how you can increase productivity per hectare.
So that with the same 12 million of hectares, you can produce more than two times the same quantity
of rubber meaning you can produce tires for much more cars with no additional length, meaning there is
no need for deforestation. So taking a public commitments with the objective of zero deforestation is at
no risk if you implement different things, including training for farmers, and so on, and so forth. And we
found this agreement and today I'm pleased to say that 50% of the worldwide tire industry is in the
platform and moving in that direction. Meaning by the decision we took in 2015, we contributed to save
in the long term 12 million of hectares of land of primary forest without having to use a Kalashnikov to
shoot at farmers who go to the forest and destroy the land. Because this is what is at stake, fight for
land. And why do we did I insist on this story? Because I think it's a very good example, where a
company who is transparent and truly committed to evolve in its practices, can build alliances with
NGOs, who in another world would have been key opponents. And believe me, Greenpeace is not
making a gift to us. We have very difficult discussions on many topics. They don't they don't they have
been pieces Greenpeace, but we have a common interest. We can make it explicit and we can work
together. And I think it's a very good expression of, of the water good dialogue can can bring to both
parts to both to both parties, despite lots of opposition. So this is an example I wanted to tell you. But
having said that, there are also crisis, which happened from time to time in which we try to manage. I
will quote crisis that you will probably find interesting. That happened. I guess it was four years ago. The
president of the World Jewish Congress is at the translation Neagu Congress responsible World Jewish
Congress, I guess so. Yeah. Okay. Thank you very much. Actually, it's not the president of the World rich
Jewish Congress. It's a sonship Associated Press, New York. Give us to call and told us well, how do you
plan to reply the letter the president of the jurists, the Jewish Congress sent you regarding the right gap.
I talked to these journalists, I said, first of all, I never heard about a letter from from this person, can you
send me a copy? We have not received anything. So she sent me by mail a copy of the letter issued by
the World Jewish Congress, by the President saying Oh, Michela fantastic company, a great company,
you probably share the record, you know, the guide for restaurants to the food, the best in the world,
you give stars and so forth. And so founded great for the first half of the letter was very nice to mission.
The second half was not that nice. And the President said, well, the by the way, you know, things have
changed a lot in Israel. We have no fantastic restaurants, Tel Aviv in Haifa in new shoreline. Why is it
that Mishnah has not published a read guide to Israel? Is it because you believe there is not a good
gastronomy in Israel? Or is there another reason behind? And of course, it was the beat in between the
lines. So suspicion that Michelle was an anti Semite, or dishonest or whatsoever. So that made me
upset, of course, because the accusation was, first of all, ridiculous. And second, the letter was not sent
officially to send to Associated Press. So no, it was like I'm seeing something, but I'm not really seeing. So
we have an internal discussion about that. And that's a typical crisis with an NGO. After all, though,
167
this organization is an NGO. So we have different options. First, we ignore it. We have not received the
letter. We haven't we don't have to react to Associated Press, we ignore it. First of all, that's risky, you
know, you don't reply. As you should press mighty shoe, you know, whatever information about that
some some lobby might make some noise, it's risky. So gonna train, we call back, the, the organization
and we try to learn more about that. And third option, we use out network, as I told you, we we try to
meet as much as possible NGOs to establish context and civil society to make sure that people know us
that they know Michelin, they didn't know who to talk and to have a fair relationship, transparent,
transparent relationship. So the point is that I knew the head of the of the key fifthly is, I would say, the
UN NGO, which represents the Jewish community in France, on Kashmir for additional members,
animals. Yeah, Colin cliff, whatever. So I called the person the person I knew we made an excellent while
we've been embarrassed. We received this letter from the Jewish Congress. What can we do? You know,
it's not fair. First of all, may I remind you that we work with Israel, we have green guides, translated in
Hebrew by Stamets ski. And, and by the way, we wanted to have a read guide to Israel, we went to
Jerusalem, we met the Ministry for tourism, we propose a co financing of the red guy, but this is the
Israelis who didn't want to do it, they stopped the discussion they refuse to contribute. So of course, we
don't make any discrimination. But that, you know, there's nobody to talk to is in Israel. So to make it
short, the head of the this French Jewish association called the Jewish world congress, and then
everything went down, the crisis finished. And we invited the president of the Jewish Congress to come
to Paris and that's, there was no story. But not only there was no story in the media, no campaign
against Michonne. But because of that, a few days later, two Bureau of the ministry, the Israeli Ministry
for tourism in Paris contacted us and said, Oh, you know, we heard about that story. We feel
embarrassed. Why don't we meet again, let's see if we can do this again, we have changed our mood. So
when back to Jerusalem, they gave us some money to evaluate the quality of the food in Israel. And we
wrote a report and said, okay, yes, of course, you have progressed a lot. You want to go away, but not
enough to write, you know, a guide at the moment. It's literally let's come back in five years. So why do I
tell this story because that's a very good example, where a good relationship with civil society with civil
society representatives, whether academy or influencers or NGOs help a lot in managing a crisis,
whatever it is, whether there is some good reason for the crisis or whether it is for bad reason. And this
is how we managed to avoid these crises, but I can put many others and since time is running, I will
quote on only one you probably all know Peter P E. T A, which is an American organization that is or
supports animals and, and aims at protecting animals. And when they Peter Send us a letter saying, oh,
muttering, you have just ordered 100,000 pairs of leather gloves for your factory in the US? Can you tell
us where the leather comes from? Because we suspect it comes from China. And in China, we know in
which conditions this leather is produced, you know, animals are really badly treated and, and it's
horrible. So you should not buy from China. There were a few videos with a lot of blood horrible.
Anyway, again, we could have just ignored this letter. We did exactly the opposite. And we came back to
potassium one. Thank you for wanting, it's important for us to know that there is this concern, we never
thought about it, too. Don't worry about this order. The clothes are not coming from China. They're
coming from wherever I don't remember, but you know, the supply chain is safe. But three, you have
raised an issue we never thought about. We have all the leather gloves, because we did it forever. But
we never questioned it. So thank you for the warning. And we're glad to tell you that we will
168
switch from leather gloves to synthetic gloves. Because it's almost the same price for us. It makes no
difference. Not always. In the production process. Some workers need to have laser glows because they
handle metallic cables which are interiors and we need 0% humidity. But if you have humidity, you have
corrosion, and then the product is not as the same quality. So in some cases, we will keep laser close but
not in others. We will just move our feet are very happy. First of all, they didn't expect even an answer.
They send a letter but most of the time companies do not answer do not they're opening a dialogue. So I
said, Michelle, thank you very much. Number two, fantastic, you know you switch to leather gloves to
synthetic rolls. Fantastic. Thank you very much. Oh, wait, wait, wait, wait, it's not finished. You focus on
leather gloves. But we also have leather belts or shoes, all sorts of equipment. We will do the same,
which is fantastic. We didn't expect that much is great. Wait, wait, wait, it's not finished. We also have a
subsidiary called missional lifestyle. That precision or hard to bags, shoes, blah, blah, blah. We will stop
using leather we don't need we will use on it synthetic material. Fantastic. Mishnah. Your Hugo Fabian
was with us. Wait, wait, we're not finished. We produce travel guides. We have a travel guide to
Thailand, which encourages travelers, probably among of them many Israelis because it's very easy like
Thailand to have a ride on the back of an elephant. We have to wonder how these elephants are
treated. And it's an issue in in Thailand. You know the way these elephants are treated? Also points. We
have a travel guide to Morocco. We encourage tourists to go to the souk and buy a new Babu shoes,
leather shoes, well, where does the does the leather come from? How about transformation of the
leather? How about the colors the chemicals used for for for, you know, changing the color of the
leather, whatever working conditions the children in these in these. So thank you very much because
through this letter you send us we understood that we had to review all of your value chain of leather
management throughout activities of mitula. But also with our suppliers. A multinational like Michigan
has 45,000 suppliers, can you imagine 45,000 suppliers. And we have to make sure that what we buy
from the suppliers is produced in the same conditions as what we produce. Because when tomorrow
will go by method as of phone or BMW to sell them tires for the cars you will buy. They must be sure
that the production process is 100% aligned with the CSR objectives of the company, which includes of
course, our own suppliers. So it's a whole chain. And our experience now is that the more proactive you
are the earlier you start in the process, the better it is and it will fit I will finish with that and then we'll
open with with with q&a. Also when I was in the executive committee to explain the story, we split up I
raised the question the following question How do you think PETA heard about this order for 100,000
euros? How did he know that? Very simple. It's a missionary who gives the information. It's a michaleen
employee in the US, probably at the purchasing department, who ordered the clothes, but sent a copy
of the order to beat up. And why did he do that? Because machine employees are just like you and me.
They're human beings. They have beliefs. They have personal commitments. They are members of
NGOs, we are all of us. We are a member of an NGO, whatever it is, you know, we don't have only a job,
you're not only students, you're also citizens. So what is the meaning of that? One? It's impossible today
to hide information in a company. You cannot hide information, sooner or later, employees of the
company will leak information, right or wrong? Because they believe they have to do it for moral and
political reasons. So think of that when you manage your company. There is no secret anymore. And
number two, how can you expect the employees of your company to be happy at work?
169
If they believe the company has a double language, on the yearly report, it's a nice company with
fantastic your CSR goals. But not on a daily life, it does the opposite, it's not possible. So if we want our
employees to be happy in the company to work well, to help to develop the company to have a better
future, we need to be completely aligned between what we say and what we do. And we need to do
what our employees wants to do. And if I'm please believe we should take more care of animals at large,
we have to integrate that meaning replaced natural leather by synthetic leather. If employees believe
we have to take better care of water quality, well, probably we have to invest more in treating water,
use waters. So that's that what the point I want to make is that we need to be today in the world of
today, we need to be completely consistent and completely committed. And the big social issues that
are in the newspaper and not issued outside the company. They are issues, which are main concern of
the company. Okay, the company has become the place for I don't know how to say that. Because to be
tricky, but for some political fights. Okay. It's a company is not a political party. But it has to address
political issues. For sure. I mentioned, you know, animals, we could talk of many, many topics, and I can
get many, many stories. But that gives you an idea of the the mindset we have now in the company. And
I guess, having changed thanks to what happened in India, having changed the mindset of the managers
today helps a lot to communicate with external stakeholders information that is that in the past, we
would have considered strategic and secrets we have completely changed parodic. Okay, I'm sorry about
that. I have talked a lot, a lot, a lot. That's much enough, I guess. And I will be more than happy to
answer your questions now.
Thank you very much. As always enlightening. So I will, I will, I will probably have a few questions I could
ask myself, but I would rather actually hear from the students. So yes, I see you a few times you can
raise your hands on Zoom. When you speak, you can open your mic, but when you've done talking,
please close your mind so that we don't have a sound feedback. So I see Shelley Shelley, you have your
hand up.
Hi. So thank you for your talk. I have a few questions that I will divide into few. The first is how does a
company assess? assess these complaints, these arguments? You find it everything as a risk assessment.
So what would cause the crisis? That's the foreign that's the primary goal and and the question is what is
labeled as a problem? And when you said you potential maybe there's something very small chance but
there's someone very vocal behind that. So you doesn't this approach encourages more the extremist,
more than the power pill with a button much louder voice and you didn't really address it How? How
was the problem fixed? Just throw money at the problem is something else? What's going on there? Are
all these negotiations made public? Is the contract the first contract made public? And why go to India in
the first place? And that's organic, and both the rubber. So yeah, you have a very sustainable approach.
That's great. But rubber is not made for decoration. It's made for the auto industry. If we think of our
agents, and one of the most polluting, interested in the world, is what is the ratio? What is the
relationship with that interesting how? We said, the more car we have, the more pirates we need. That's
of course true. How can you that's almost against your own interest, that we would have less cars. And
170
when you plant the rubber, it's not only deforestation, deforestation that you said, but we can have
something else instead, food and we have the food supply, and we have very food crisis that we need
this land, and more than it's explaining of water. And water is scarce. Whatever that. And the last
comment you will have you said about the Peter story about the Moroccans, the little children working
in the souk, and yeah, that's maybe dangerous. But what about the traditional way of work? And what
about their livelihood? So what are they supposed to do now? It's not,
thank you very much. It's a lot to start with. But I was used to questions. You want to start addressing
those? And then we'll have more? Thank you.
Yeah, certainly. Thank you very much. Really, I think these you you raise very good questions. First of all,
extremists, yes, there's a risk that extremists will gain more power. But actually, that doesn't happen.
Because I would say, you know, and I, every time when I speak of NGOs, in Michela, I always start by
saying, we're not going to talk about enemies, we're going to talk about allies that help us to develop
the business. Because, you know, the restore type is an NGOs are openings, our enemies are going to
create problems. That's not true 80% of NGOs, they're just trying to just try to fix issues. And they
become aggressive only if they find that people don't want to change. So actually, most of the NGOs,
they are not extremists. They are very wild dice to me, they have an agenda, of course, but they are
looking for, you know, an agreement, co working and so on and so forth. Of course, there are some
extremists, but in this small world of NGOs, we all know each other after a few years, I've been doing
that for for a few few years. Everybody knows everybody. Everybody knows who is serious, who does
good job, who, who you can talk to even with NGOs, who are very, you know, very sharp, but they are
rational if the Global Witness, for instance, they're not always friendly with us, but they are, how can I
say that they have a scientific approach oxys effect is a fact do not lie on facts. Right? The problem is
extremist is that they're not interested in facts. They're interested in endologix propaganda, political
fight, this is why it's difficult to talk to them. So but but they're also not appreciated by other NGOs, who
consider it's not possible to work with them. So in the mapping, you know, who you're talking to an
extra service, we talk to them, but they don't want to talk to us. They want to pretend to talk, but they
don't really want to talk. So when we invite them to all the stakeholder meetings, we invite them to
participate. They don't Okay, but that's it. How do we fix the problem? Meetings? Yes, of course, it's
always always going to be key meetings are always the people but we don't hide anything. We don't
hide anything. We have nothing to hide. If we are interviewed by which happened to me often by media
saying, you know, who are you working with, and so on, so forth. I just tell the truth, there's no problem.
We don't hide anything. What happens sometimes, is that on a given problem, we agree with an NGO or
with a certain job, please, you pinpoint to the problem. We're going to work on that on that give us six
months. We need no external condition for six months, because what we're going to change might have
some instance impact on the work of some workers that we need to change work whatsoever, so we
need to talk to them first, prepare a new job, blah, blah, blah. Don't spoil all of it. But in six Most things
will be will be fixed. And you will see the results and we will meet each other. Let's say for instance,
171
every month, we will tell you how fast we move, and so on and so forth. And then use the trust us
because we just do it. So now with many years of experience, they know that if we say something, we
do it, and we'll fix the problem. But again, there's no problem to make it public. And as I said, I've been
interviewed dozens of time by by financial times by, by by New York Times by Reuters, whatever, no
problem with that, about rubber, you raise different issues. One, we don't worry if we sell less tires, our
objective is not to sell more and more tires. Not at all, not at all, all the history of Michigan consistency,
better tires than competitors, putting more technology
selling more value to users. And this is first this is the race, this is the competition. So we don't worry if
tomorrow we produce half less tires, we'll probably make even more money, and the company will still
be profitable. I will take only one example. Today, with a truck tire and Michelin truck tire. The truck can
drive up to 1 million kilometers. And you believe it 1 million kilometers versus 50,000 kilometers. So two
years ago, we have never sold as many titles as today. Because we have taken a larger market share,
because we deliver a more efficient products, which I will not go into details because that will take too
long. But again, the race for us it's a race for technology, whatever volume. But of course, if you're a
cheap producer from China, or India, you put on the market very cheap tires, in which the cost of
production is mainly raw material, including rubber, you have a strong incentive to buy the cheapest
possible rubber produced in the worst condition and exactly the same as for shoes of our T shirts, you
know, we don't produce T shirts that you will throw away in two days. Because once you wash it, it looks
like nothing. We produce things at last. That's that's our commitment, sustainability, durability, and so
on and so forth. And I can I can if we had more time, I will I will explain to you the fights we have with
our competitors on this topic because most of our competitors are volume oriented, why we are quality
oriented. And at the same time with our competitors, we are together in this rubber platform to
transform the supply chain. But we are fighting to each other when he when it comes out when we talk
about the final product. So it's two different games. I got rubber, no rubber plantation, they do not
replace land for food. It's not in the same place. It's not the same type of soldiers. There's no
competition between the two, the competition is between rubber and pine oil. Usually you see the same
side by side. And in terms of suface, you know, 12 million hectares of land is peanuts, compared to
hundreds of millions of hectares of land for agriculture. So there's no issue about that. But and you
talked about work. Just to give you an example, we have a rubber plantation in Sumatra. And usually
Keith, by developing rubber politician in this place, is to create jobs for workers. So that these farmers,
they don't have to go to the forest to cut trees to sell the trees to pay, for instance, for the school or the
children. By developing the rubber plantation, we give them an alternative income, stable income. And I
could develop stable over years stable during the urine, Salesforce. So actually, it's a very good product,
rubber. And all the question is how do you plant how you do harvest and so on and so forth. So what is
the the productivity we can reach? I guess this is all Infosys soup. I don't remember exactly your
question. But what I hear behind is the dilemma between respecting local traditions and implementing
international standards. If for instance, in Marrakesh, for 100 years, children have been used to work
and do produce our craft and this is the way they work and this is the way they live. Why are we going to
change that? Okay, but this is an extreme case because we what you see in real is that what was a
tradition? A well admitted tradition in the past because of tourism often becomes a caricature of a
tradition. were voluntary work of the past became more than slavery. So it looks, it's the same, but
172
actually, it's not the same at all. And this is why, again, it's a case by case issue, you have to go into
details, of course,
people need to work you need to do it. So for instance, if we have farmers in the countryside, and
usually they work with children, we will make sure that at the same time, children have access to health,
or at least have access to education, three days, three hours per day, you know, so it's not black and
white to try to find a compromise. And we do that all time with the help of local NGOs. So that we are
not suspected of taking advantage of the situation to have child labor or whatever. It's very, very
important to involve local NGOs. Because they know that people, they know the land, they know the
culture, they know the constraints, and they are much better position than we are to find out what's the
right way to move to carry out. Okay, I hope I answered your questions.
Thank you very much. We could be more more exchanged about that. But maybe that's open the floor
to others who might have follow ups. I have on the order Edna and then I got
your
Okay, so we have a guy who's going to start.
This is very heartwarming, and wonderful to hear. And I'm thinking okay, but how many companies are
there that do this? And I'm asking, I hope you know the answer. I mean, I hope you can tell me but, but
but then how do we make more companies see it this way?
And it's a good question. It's a good question. You remember, I started by stating that which thing was
the only French multinational company with the headquarters which is not in Paris. And I think it's very
important because then the people you attracted the company are not the same. You know, they're not
moneymakers looking for a quick career, they go to Paris, who's to go to clamor for home, they want a
different type of life, different relationship. And this again, it really influences the culture of the
173
company. Now, by by by natural, optimistic. And I believe, first of all, in the new generation, many of the
students who finish you know, the engineering school or business grow whatsoever, have a completely
different mindset than the previous generation. And year by year, there are more and more
empowering companies, and they contribute to this change of mind. Number two, I believe very much
in the children when they go back home, and I heard that very often in Asia, when they go back home,
they ask their father or their mother, okay, you work for this company, or you went to the company, but
what are you doing for the environment? What are you doing to protect the forest? Why do you
produce these, it's useless, and it damages everything. And that that seems to be anecdotal, but it's not,
it really helped to change the mentality of the people. And I could go to several very examples. Now, it's
true that this is capitalism. This is capitalism, and there's no obligation to do good things. Right. But that
there are more and more stories of company who, companies who overperform because they have a
strong and true CSR policy. And you know, that I'm gonna have to name that you know, that okay. And I
think, in the tire industry, which is not, you know, very sexy industry, and I was not interested in it
before John Michell and but in the tech industry, Michelin really has the reputation of being the market
leader. And we see many companies coming to us and asking for advice. And even a very big tire
company called me one day the CSR manager and said, Okay, can you just cut and paste your
commitment towards sustainable natural rubber? I said, can go for it, and I sent the Word documents so
that it was easier to cut and paste. As you know, he says, It's not competition, go for it, no problem. And
we became friends and we talk often, even though we fight on the markets. So I'm optimistic. I'm
optimistic. Thank you
they're looking forward to Michelin stars and the law. Fair enough.
Okay, okay. First, it was very interesting. For me it was even exciting. Because we in Israel are so used to
talk in the language of rights. I deserve this. Is my rights as individuals and also as the society. And of
course, the private business, in our way of thinking, doesn't owe don't owe any any duty to human
rights. And their goal is to make as much money as possible. No matter if they if they managing by the
law, they don't care about anything else, no one will think a little bit above or see what's going on
behind. And this way of thinking is I don't, it's not it's we don't hear it here in Israel. So, so it was nice,
and it was excited. And maybe we need to, to hear about it more and change your thinking. And I will
never buy any other tires that Michelin, I promise you. Okay, good.
Thank you very much. But you know, okay, it's maybe today the mentality of in Israel. But there was a
time in the past where Israel was a different country. And remember, the majority of people in the
kibbutz there was the issue of money, there was an issue of common destiny, with moral and believes,
and you know, all the things that people had to share, this has vanished. Because the reason why this
174
happened is linked to the 19th century, and the condition of immigration, and so on, and so forth. And
the keyboards are more vanished, because these conditions are disappeared, it has disappeared, it can
appear again. So let's be optimistic. Second thing, let's not be naive, in many cases, you need a low to
limit what people do. And you meet, you need to, you need to have some constraints, which is more and
more the case in Europe, we have lots of new lows on due diligence and stuff like that on important
deforestation. So you should do it. But no, you you have to do it. And more of more and more often, big
companies are asking their suppliers to comply with these laws. And with this, this mindset, oh, I think
it's going to change, but you need to the laws, you need to have control of the laws of the
implementation of the law. But more importantly, you need to have the commitment of the civil society,
consumers, consumers can change things, you know, if you continue to buy cheap shoes, that you wait
for three days, and you throw away, that will continue. If when you go to a shop, you refuse to buy your
shoe, because it's not good quality, and it's just waste raw material, waste, cotton, and so on and so
forth. Well, these companies will stop producing these things, you know, company produce things that
people buy, stop buying. And, and this will finished, you know, and again, the citizens can go to NGOs,
NGOs can can confide, can can communicate with the media, the media can put pressure on the brands,
and this is how you change things. There's a great small organization in France called alte, ultra SOS
program it stop programmed obsolescence, okay? Very efficient. And actually, it was a very, very small
NGO, we went to them, we said, guys, we're going to give you money. We don't want anything in return,
do whatever you want. But we truly believe what you're doing is very important. So we're going to
finance you. And we want you to develop in France. But we also want you to develop in Europe, to
create branches, because you are the only NGO today focusing on this. And they went in a trial with
Exxon, proving that Exxon has pre programmed the obsolescence of the ink in the printers. So that after
10,000 copies, the ink reservoir stops, even though it can still work, and they won't. And it's not hard to
change, you know. So they do an excellent job. But it's unfortunately not enough, not not enough
people, not enough energy, not enough means but again, it's changing. And just as a consumer, change
your way of buying, change your way of controlling, that will help a lot.
But when we're dealing with the US market, which is leading the way of thinking, what can we do as
Europe or Israel? So what would you say about that?
I will not speak now in the name of Michelle, I will speak on my personal name, oppose American
imperialism and oppose in particular American cultural imperialism. That's it. I love us. I love American
people, but what is good for them is good for them. Maybe not for us, right? I don't want to speak the
way American people say Because I don't want to think the way American people think I think each
country, each civilization has its own genius, its own values. And let's not make all the world American.
You know, you talked about previously, the fact that the law is so important, you have the right and
these are blah, blah, blah, no, they're always to do things. I'm half Italian, my grandfather was an Italian
immigrants. For all his life, he never even wrote a contract. Never, everything was just by word. Because
175
what you say has value, you don't need, you know, a trial for that. That worked well in the past. Why
didn't it work again today? Maybe it's a dream.
Thank you. When we got to the notion of consumer, I hope you guys were able to, if not, I encourage
you to watch this short video, which was finding the John Oliver video, which is a bit of a provocative
video place that sort of talks about the patterns of people being sort of outraged about when they find
out the origins and some of the products and then going back to buying cheap, cheaply in a way that are
actually not necessarily sustainable and things to do tama, you have your hand up. Yeah,
I also, first of all, I wanted to add to what everyone's been saying that this is this has been really
interesting and eye opening and exciting to hear. And I wanted to ask, in Israel, for example, I think one
of the problems that one of the problems in implementing that in local companies is that civil society is
pretty weak. So I was wondering if you have any ideas, if you know, of companies that also do work to
strengthen civil society, or to kind of, you know, go the other way around, and also try to invest in civil
society so that they can then lobby you or things like that?
Yeah, that's a very good question. And yes, it is. It is weak in Israel again, it was not like this 20 years ago.
That's the fact today, for many reasons. It's not the only country. If you look, Asia, for instance, in most
Asian countries, Thailand, Indonesia, Vietnam, Cambodia, for many, many reasons, the civil society is
weak, the media are weak. And that's a major problem. I totally agree. Companies can help building civil
society. So we finance NGOs, but we are not again, a political party. And when we go to a country, which
is not, which is not our own country, we are limited in what we can do. So we try to find a way, for
instance, where if we're in a country, with legislation that doesn't help hiring women, or giving them
some responsibilities, we try to create or support NGOs, who will empower women, and indirectly
contribute to but it's, it's again, it's really tailor made. And I agree, I agree many countries, civil society is
weak. And that's, that's a problem. That's a big problem. So and sometimes also, we it's strange, but it is
a problem we face, some NGOs refuse to receive money, because they are into manipulators, so often
saying we're not going to manipulate you come on. I mean, we want to help you take the money, do
whatever you want. Just don't say we give you money, because we don't want to, we will not want any
publicity. But as an international company, it is part of rescue our responsibility to support actors of the
civil society who helped implementing general principles for multinational company. That's all we only
want that and, but Okay, that's it.
176
Thank you. So, we have two students want to ask a question and if we have time, I will I will also raise
raise a question. So sorry, sorry, do
so my question actually kind of connected to what you just mentioned that how you're limited in
country that you're like, the company is not originally from and so, when you work in, like, you know,
when Michela hires people, for example, in countries that have very poor social security legislation, very
poor labor law, then like do your like human resources policies, for example, maternity benefits or
severance packages, all of these things? Like do they still reflect the same kind of values that Michela
would espouse in let's say, France, in a country that does not have or it has a very weak labor law or
social security framework like what for example, Michela provide maternity leave in countries that do
not have a legal provision for maternity. So
okay, why don't why don't we take shebang is question two, if you don't mind. So you can you can See
how the chorus is yours? Yeah. Hi,
I the My question is essentially I want you to understand so when you like just listening to the entire
commitment about like that Michela has with all of its like, you know, conduction researchers, I wanted
to ask you do you think that a multinational company, like as a multinational company, when you were
looking at your counterparts who are working in the same countries as you are? Do they also have such
strong policies? And like, like, do like companies have, like the national companies? In those areas? Do
they show such commitment? Or is it just because of the fact that mitula is a multinational company?
It's going in a foreign country, it shows that kind of strong responsibility? Like that is something I want to
understand and also how, like, how is this government like constantly, like trying to aid you? Because if
I'm not wrong, there must be some strong investment treaties in place to help mesh law. Right. So how
does that work out with all of these commitments coming together?
Thank you very much. So for the first question. Of course, a minimum for a company that goes in a
country to respect local law. So that's the minimum standard, but most of the Danish law imposes
higher standards, for instance, as you say, maternity leave, or employment of handicapped person. In
the case of India, for instance, we work with an NGO called Handicap International, which is Nobel Prize
NGO, who helped us to understand Indian law and see how we can do better, and so on and so forth.
We try as much as possible. But sometimes it's difficult, because we, we sometimes are under the
pressure of the governor, government of the country, who doesn't want to have a company offering too
much, because that creates tension with other companies, or either other multinational companies or
177
local companies. So we tried to be in between. And as I said, in the case of India, for instance, we found
lots of resistance, when we talked about employing women, where we are and actually that was one of
the causes of the problem we had with, which I didn't want to mention is so yes, we gave a lot of access
to education to women, a lot of opportunity to access good jobs to women, as opposed to what was the
general practice in the place. And, of course, many men from the competition that they didn't want to
face. So we had to balance, you know, to find the two but of course, we want to implement sort of
internal international standards, which are not the French standards, but just you know, international
standards and standards in terms of hours of work per day, days off and level of salaries, and so on and
so forth. But in the same time, let's be let's be true. It's a competitive market. So you cannot pay twice
more employees in your company than your neighbor, because then you have a project production
production cost issue. So we have to balance both. As for the difference between multinational and
national companies, I think actually, that's not really an issue. Of course, multinational companies have
much more means much more money. So they can think with a much longer time frame that helps a lot,
we can lose money for 10 years, it's not not a problem for a given project, it's not a problem, because
the project is for 50 years, and that will pay off later. If you're a smaller company, you have to have your
return on investment within whatever, three years or five years. So that's a different game. But I think
what is really critical is the mindset of the CEO. What is his objective? Does he want to make as much
money as possible as quick as possible? Does he plan to resell his company? Or does he have passionate
beliefs and ambitions? That's the question. I've got a good friend who is a CEO of a company in India,
who he created, he has been very successful, he employs two dozen people, but doing COVID-19 is
spend a lot of money of the company and his own money, just to bring rice to his employees and
families of his employees. And we talked about that, and he told me but you know, I'm not going to take
money the next over there, you know what I, I like to make business. I like to make money. I like to win.
But I don't need that. So it's my pleasure to return it by helping the people of my company in this
difficult time of their families, you know, and that's the mindset of the CEO. And this of course,
influences the people you will hire and influences the way the people the managers will behave in the
company in everything else, right. So it has a lot to do with this and I must say one of the pros problem is
that that's probably the problem in Israel, where top managers often come from top schools or top
MBAs from Harvard or Berkeley or whatever, where probably these ideas are not well shared. And the
return on investment is the and stakeholder value is this sole criteria. So probably this is where things
should, should be challenged. I don't know. I would love to
come from Tel Aviv law school and have been exposed to all of this, so they won't. Thank you very
much. Thank you all for your for your question. So I have one quick comment and a question. So the first
is, of course, and you know, I have to also of course, they did, they did not the devil's advocate. But but
but, you know, as you rightly say, and I like I like this narrative, because the narrative recognizes that
things happen in actually really, this is why I really insisted on our daily point of discussion, you have
here an example, not a someone within the company, but the company itself, which is trying to do
things a little bit differently. But as a recognizes himself, his job was created out of a crisis. So it didn't
come out of nothing, it didn't come out of a however, nice vision of the CEO and how well, the company
is actually it's, it has a good reputation. It's true France, and we're what there was a crisis was something
that was wrong, that created an incentive to actually and, you know, kudos to the company for actually
178
creating the job and allow it for me to engage in since done more than a decade now with a god in a
powerful way, which is an example, that I also appreciated the fact that you, you did recognize an
answer to Shannon's question, also, the fact that there seems to be an alignment of, you know, the
sustainability strategy and the building of a coalition platform and the market situation of niche law, in
which Mishnah has been, over the last 15 years confronted with new competitors, producing cheap,
cheaper and not as sustainable tire. So your dominant market position on the market was, was you
know, objectively threatened. And it so turns out that you and Michelin Bridgestone had, you know, the
technology to position yourself in a sort of a sustainability niche, which, as you rightly said, Actually
probably providing more with more and more benefits if you sold those tire more more expensively
than mass production. So I think there's a, there's a nice alignment here, but still, there's an alignment
that I know that you recognize this, you know, you've said this many times your business right here,
you're not a political party or an NGO, but there's an alignment here of a market strategy and
sustainability strategy that go together, because it's so happened to be, you know, you know, a market
positioning that will benefit you as a business in this story. It's a nice one, because it also you're pushing
and you're pushing your competitors, who are in the same category as you to to follow your eat. I think
that's that's important to sort of place my question. So I have two questions. I don't have time. But my
first question was, if you were keen to comment on, so for students, I gave them some background
readings on UN guiding principles for business and human rights. And, you know, one of the translation
in France and I know you we've had some debates about this before was a law in France that imposes on
big transnational corporations a duty of diligence into duty of care, essentially, in designing plans of
action, so that they would have to look out for the potential consequences of their businesses and the
entire supply chain, worldwide. So the legislation would extraterritorial reach, which was meant to
essentially overcome the obstacle of what was called the corporate veil, essentially, corporation would
say, you know, I have obligations that I am working with, you know, I'm looking at joint venture or
working with suppliers, so that, you know, my, my, my liability is limited. And this legislation, you know,
pushed by NGOs or clinic. So I wanted you to sort of maybe comments on how you see this law as an
example. And there are many examples now around Europe in particular, what your feeling is about,
you know, the effectiveness of specialists, legislation that if if you have time, I also be curious if you
would, I know it's a topic that is been on your mind for quite a while. How companies like us to not
necessarily Michelin, but deal with the situations in which some countries are coming under sanctions
for For you, I know you were worried at one point, but better because we have students in this class
who's actually come from, from the Ukraine in that situation in Russia. And if you are able to sort of give
your thoughts and comments about how a company, you know, totalis has been put under pressure in
France to sort of stop its operation in Russia, and if you have any comments you can make at a personal
level, not necessarily as a spokesperson, permission will be very interesting. Thank you.
So thanks, usually me, I changed my opinion on the due diligence low, and all these these these things, I
must admit that at the beginning, when we were discussing this law, there was huge debate, and it was
pretty much against I said, Well, bullshit, you know, all these students, they spend their time reading
books, writing laws, and the likey. They make seminars, they talk about that they will change the world,
this is just paperwork in really doesn't happen like this. But I changed. And I must admit that it helps. It
helps having these lows, because first of all, not all companies are like Michelin, as somebody said
179
before, some just don't care. So if there's no low and no constraint, and no legal risk, nothing happens.
So it helps. But it's, it also helps internally and including within michaleen. Because there's a threat. And
often the threat helps to accelerate. And when you go back to the head of the department of
whatsoever saying Hey, guys, there's a law that will be whatever you will have to respect from January
1, you have to change ABCDE in between. And if you do not work into a problem, then people change
things. If you say, oh, it would be nice to change things. Well, people have the intention to change. But
there are so many other priorities that it doesn't happen, not because you don't want to do it. But
because it's not a priority. So having these deadlines, these lows, this recommendation, of course, it's a
burden, it's a lot of paperwork, it's a lot of reporting, it's a lot of bureaucracy, but at the end of the day, I
must admit it's efficient. And, and it also helps beyond the border blow was first in France. Now it's
becoming legislation, also, I guess, in Germany, in Sweden, in the UK, and it's going to be European
legislation, it's already within legislation. So it's getting bigger and bigger. And that that helps for
changes. So I think it's a good thing. And and it's not, it's not a waste of time. Finally, second thing about
Ukraine. Yes, I actually would like to say a few words about that. For us, it started a bit before because
as Jamie knows, we had an issue with Bella which for more than a year now we have a big supplier and
biller who's, who sells who sold to us, metal cables, whatever, it doesn't start important, but it's a state
owned company. And one day we received a letter from an NGO saying, Well, you are working with this
state owned company in Barrows. The problem is that the manager of the company uses the means of
the company to harass workers who intend to protest against the newly elected president elections,
which of course have been contested. So conclusion of this, some said, you have to stop working with
this company. Some other told us you have to put pressure on the management of the company so that
they stop harassing workers, they have to reintegrate, those who have been dismissed and so on and so
forth. And for about a year, we had endless discussions with a range of NGOs, moderate to extremist,
with public bodies, Belarusian at the French Embassy, the European Union, diplomatic representation
with the management of the company itself, to try to find out what was the truth? What was the best
solution? For instance, if we decide to stop working with this company, because there's no respect of
human rights, we put straightaway on unemployment 10,000 workers in the city where most of the
workers work for this company. So the company in the city is almost the same somewhere in Belarus.
Shall we do that? It's difficult to decide. So some openness to the various government in exile said yes,
please stop working because we want to quit cows. Thanks to Carlos who will make revolution and
literally efficient revolution, we will bring democracy some of the said no way. Because not for
tomorrow, go step by step, keep the relationship, keep the job of the workers and just try to put
pressure to change practices. Well, we will never know what the right answer was because in between
there was the war in Ukraine. And since the lovers is somehow supporting Russia in this war, we decided
to stop any relation with this supplier. And by the way surveyor itself was unable to continue their
business relationship. So this is how it finished. But again, this is just to say that the right answer to a
well established abuse to human rights is not abuse, there are usually different options. And they are
sometimes of equal value. So the only way to solve this issue is to put the stakeholders around the table
and find and decide together what is the best option. Also, time is a critical issue. Okay, I shall react, but
should I read today, or in a month or in six months? Okay, so we play on all that about Ukraine. In
Ukraine, we have 12 or 13 workers. So it's not a lot. It's a Commission's team. And when we, when we
180
saw that things were going well, in advance, we pay the salaries in advance two months in advance to
these employees so that they had money to take the necessary measures, we helped the families of the
workers, most of them were men. to, to, to move to Poland. And we support them in Poland, and, and
the men and in the army. Now also, for them, it's a different story. So for Ukraine, it was quite easy for
us to, to manage the situation, the question was Russia, we share, we have a factory with around 1000
employees, and we have 250 employees in Moscow in commercial activities. And it's complicated,
because as I said, the machine employees reflect the society. And believe it or not, that in Russia, I
would say we didn't make a poll, but probably 70 of our employees support Putin. So what should we
do? Should we decide, oh, you're bad guys, we're going to punish you we close the factory? Or shall we
say your political opinion is not our business, we continue business as usual. First, depending on your
European Union, sanctions, it's complex. So again, we didn't have to make a decision. Because basically,
all the raw material comes from outside, there's no rubber in Russia, rubber comes from Singapore, very
quickly, it was impossible to import rubber from Singapore, no money, no transportation. So the factory
is stopped, because it cannot can it can just cannot continue. So we have not decided to withdraw from
Russia, we have decided to suspend operations.
And the question also is timeline. We are now in a crisis. But Russia is not going to disappear. Russia will
continue. So we don't know what's going to be what will be next step. Some people say Putin is is
seeking, we will die soon, some people will say within a year it will be out of power. So we have to think
what will be after, maybe it will be better, maybe it will be worse. So we don't know. And I think it is
more responsible to put on hold and keep all those options, rather than to say, Oh, I quit. You know, I'm
a nice guy. I'm a beer maker. But I leave. Because often those the companies who decided to leave very
often I'm not seeing all the kids, but very often they were companies with very little activity in Russia, or
not profitable activities in Russia, are companies whose soaked anyway, the Russian economy is going to
collapse. So operations will not be profitable for the next five or 10 years. So it doesn't worse thing
they're not you know, nothing was human rights, nothing at all. It's a pure calculation. So opposition is
more to say, Okay, at this stage, we cannot operate, we stop. We continue to pay employees, with the
inventories of tires that we say, By June, there will be no moment in the company. So we won't be able
to pay our employees anymore. And we don't know what we're going to do then. Will the war be
finished in between? We don't know. Okay. But in no case in the in the decision that have been taken,
we never took into consideration money issues, concerns, how is it going to cause How is it going to wait
in the it's not an issue anyway, it's not an important business. The issue is what makes more sense in the
long term. What will be more helpful in the long term, if you have Russia closed? Like was Russia in the
Soviet Union in the past? Is it better for the future of Europe? Not sure. Not sure. And in the meantime,
of course, we don't want to finance the war in Ukraine. So it's quite difficult. Each company has to
decide depending on its own history, and the type of activity in the in the country but they understand
ocean. The French company who says you know what have supermarkets people need to eat. There's no
reason to close the shop. And by the way, the money that finances the war you is not the money made
in the ocean supermarket? The money comes from oil and gas. So if you really want to reduce the
resources that finance the war, stop oil and gas, and stop talking about to shore, which is peanuts. I
guess it's much more communication than men really. Thank you.
181
Thank you very much for accepting to, to answer the question. That's a tricky one. And thank you, in
general, for for your thoughts and responding to the questions. I think we can all together thank our
guests. I think class is over. One of you on the chat, I think had had a question. So I don't have time for
this. But everyone, of course, is free to leave me if you have to go please let me know. Otherwise, we
can stay I can stay two more minutes on but join me in thanking. Most Go ahead. Have you had a
question? Are you able to listen to the question?
Sure. Sure. No problem was pleasure.
Hi. Oh, no. So actually, it was super interesting to like, you know, talk about and actually have someone
speak about the Russian war and like how their company is working there. So the question that I actually
wanted to ask was related to war or conflict areas in general, because there are some countries that are
constantly involved in human rights violations. And those are being brought up and constantly flagged
on the larger worldwide scale. And, I mean, Israel is also one of them, and stuff like that. So how does
mesh law like, you know, reconcile, like both these commitments like them, trying to work also like
trying to like to keep away from the political stuff and just take committing to their CSR objectives?
Yes, just to make sure the answer for for Israel or for these countries at war, in general, and for in
particular, selling military tires, because we sell lots of military tires, we have a dedicated team, we meet
regularly on purpose on the spot to decide every time shall we do that, shall we sell to this army, shall
we do it now or not? And what kind of tires is not the same if it's a tire for defensive weapon or
defensive weapon, if it's time for an ambulance, or for most vehicle, it's not the same. So it's every time
a case by case decision, which is extremely complex. Just to give you an idea at the beginning of the war
in Ukraine, we had 150 People working full time on the crisis. That gives you an idea of the magnitude,
because it's not that easy to change the work process, the relation with the subsidiary, the financial
flows, human resources, flows, logistic processes of 150 people for two months working on the credit
crisis, you know, and it's not a business. So that tells you how complexities for military tires, we have
first loss, of course, you know, that our international lows and our bands, for instance, you cannot sell
weapons to Lebanon today because that's a number goal. But every time there is room for negotiation,
if you sell military tires to the Lebanese army, it's possible, but you have to go through a process to
make sure that the tires will arrive at the right targets. If you take the case of Israel, of course, very
often, we have people writing to us You shall not sell military tires to Israel, because these are evasive
Cobain to to his brother. He says a country like any country, it has the right to defend itself. So it has the
182
right to have an army and to buy tires. That's it. As long as there is no un embargo. There's no reason
not to sell types. Okay. But of course, it's always a question mark, because the day you see a military
vehicle with the mission brand, and if you look at military vehicle, actually the brand of the tire is
missing, you can see there's no the brand and it's not returned whether the military vehicle was made.
So when you see a picture taken by Reuters with a military truck with a machine brown shooting at
whatever civilian Indonesia present during the regression, that's a problem. So very often we take
decisions that go beyond the law. It's allowed to sell military tires to this country, but we will not do it
because we suspect the tires will be used by the army for not respecting human rights. And for instance,
we had recently an order for for for not military terrain tires, but double use tires, tires that can be used
both for civilian vehicles and military vehicles for Somalia, but we suspect that the tires will enter to
malicious. So the principle is we don't want to make money out of the business. We just don't sell and
very often. We don't and tires and our competitors go and set tires and they make money. But we don't
want that money. We don't want that risk. It doesn't worse. And it's, of course, not not ethical. So we
lose markets basically because of that. But that's it. We use markets but but we have the best tires, and
we gain tires you believe it or not. But after the first few majors, where we have seen so many Russian
military trucks with flat tires, we receive lots of letters saying we you should sell military tanks to the
Russian, you know, they built tanks that was 10 million 50 million 20 million euros, but they put them on
cheap tires booked in China. As a result of what the details are flat, the tanks are stuck in the mud, and
the Ukrainian come in and steal them. So it's for us, it's just unthinkable just don't put the money. They
should contain us. But that's that's the problem. So no, we're not going to send tires to Russia, of course,
and too bad for them if they didn't make the good choice, you know, years ago. And that's it. But it's
again, it's a case by case and and since there is no obvious answer, it's always an internal debate
between different people from different departments to find out the best best answer.
Right. Thank you very much. Our way is researching been Pantone. Merci beaucoup, thank you very
much. And I will be in touch with you. And the rest of you have a nice short break and I will see you next
week.
Thank you very much. Thank you for the great pleasure. Thank you very much. Bye
Class 8
Okay. Okay, good morning, everyone. I
183
hope you had a nice few days break
it up with you again
in your class. I'm going to do a brief brief recap just to situate again where wherever we are in the class.
I will say just a few brief words about this case study that we the workshop that we did together on
Zachary case the case gone up. So if you think that wasn't able to say, if some of you are interested,
there is a chapter I will make available on Moodle that pretty much sort of details that story. But and
then we'll we'll enter today's today's reading session about Amartya Sen, in particular sense thinking and
what came out of his thinking and also specific historical and geopolitical context. What is called show
today, human rights based approach to development, partly a brainchild of Amartya Sen thinking, but
not only. So as a brief reminder, we began this class by trying to unpack a number of concepts. Each one
of them, the one who began to work with was development. So we tried to unpack a little bit what that
was, we questioned the notion of progress and measuring progress, and also engaged with some of
those various technical methodological debates and definitions, GNP, GDP, p2p, etc, you all know about
this, we also try to unpack quite an introductory way of human rights, conceptually respect, especially in
terms of their the overarching structure of the positive international human rights protection system.
And by doing this, one idea was to sort of show you that there's three ways essentially in which you
could consider human rights issues. So for Proposition one is sort of a positivist legalistic perspective.
And it is international human rights law and their manuals and courses about this, and we will, of
course, enter more of this starting a course today, but in the next few sessions, too, there's a slightly
more moral perspective one can have on human rights. And sometimes one can think about the
pragmatic approach with sort of, sometimes pause on the positive is sometimes on the more moral
approach to human rights in order to generate political leverage. Okay, so those were set of three kinds
of approaches and the Mohammed Zackary workshop was also meant to show you what I meant by this
last approach. Shall We then explore two key tensions in this sort of big field of development,
sustainable development, inequality and human life. One of them is the question of poverty and
whether poverty could be considered as a human rights issue and or a human rights violation that gave
us the possibility to sort of distinguish moral to sort of more legalistic, legalistic approaches to human
rights. We then focused on the big sort of debates in development, economics, about the relationship
between growth, on the one hand poverty and inequality. And we had a whole session on this is the
quizlets curve and, and color models and all that. And then we started the historical, you know, analysis
of the relationship between human rights and development. And we're going to sort of pick up on this
today. But as a reminder, we started with sort of the early 1950s 60s, modernization era, or the
development of this new era in which people like Rostow, you know, were quite influential in sort of
184
conceptualizing development as modernization. And very, very early from the start, conceptualizing the
idea that development was about growth and the development should come first and human rights
were the similar political, or economic, social and cultural rights, for example, the duration of the
welfare state, all of that should be put aside should be traded off, and should wait for later. Okay, that's,
that's, you know, something that stayed with us in the next few sessions. We then focus on what came
next I give you a quick account as of the reaction to this, in some developments, thinking areas,
quarters, and also some countries decided to sort of, you know, forego some of the recipes of the
organization, which not only suggested to modernize, but suggested to do the doing this by generating
growth through exporting exporting natural goods, primary goods, in particular, remember this notion
that, you know, through empirical analysis, there was no questions about how unfair this was to, to low
income countries, and therefore, there was a push to proceed by what's called import substitution
industrialization, which I explained last week. And then as a reaction to this, and some of the failures of
this, both macro and micro reaction, which was also pushed by a very specific context of debt crisis,
neoliberal ideas coming to power in powerful Western States was the rise of neoliberalism, which in
development policy translated in very strong, not so much political, but economic conditionality. If you
wanted to be bailed out, or get the help from the World Bank and the IMF, you'd have to completely
restructure your economy, you had to transport publicly available health care system, for example, to
cash and carry systems in which people would pay out of pocket, except for small exceptions, right. And
the Zachary case is an example of that context. And an example of a one off advocacy, strategy and
engagement, which was trying to get at the structural issues, not so much of getting someone out of the
hospital jail, but actually getting at the structural reasons for which people like will have exactly the
work put in these hospital jails. And the main reason was, of course, the fact that the exemptions for the
poor had not been, you know, defined by the government, but it's actually also that the money wasn't
there. The money wasn't there. This is why the hospitals or knocking people like mammoth, Zachary,
and so, just a few things
about it.
So you all came up with really interesting, interesting ideas in terms of you know, targets, friends and
sequences of advocacy campaigns that will be designed, I gave you and you can, you know, very quick
account of what happened when in reality, which is a multi level strategy which prioritize a number of
things including a petition to the Parliament, engaging to whatever resources and leverage you could
have with actors that could go bankrupt USMC organizing a press conference, in the presence of
Mohammed Zachary would been released. If you remember the night before. We were about to file a
case. But in terms of the legal approach, this there was, you know, work to crash you know, to try to you
know, go in front of the reports that the highest eventually the high score, it's possible in Ghana. First of
185
all, try to you know, We'll make sure that the right to health was claimed, with the idea that the right to
health unlike in South Africa was not necessarily justiciable right that Directive Principles of state policy,
but the idea was not to try to go to court and have the Court declared that it can that it would consider
and interpret very liberally, the right to help to be justiciable. There is some examples of other Supreme
Courts in India, for example, which have, you know, extrapolated, interpreted from classic civil and
political rights, some versions of economic, social and cultural rights. So the idea was not so much to do
that. The idea was to sort of put forward the obligations of the Ghanaian government in terms of the
international treaties that it had signed on, especially the International Covenant on Economic social
rights. In the case, we developed all the general comments that you had to read for last time, which
explained the equipment the importance of the political financial access to health care as part of the
legal framework, but the idea was to frame a number of remedies in the lawsuit itself that would get at
a structural problem of financing gives a Force wanted to push both the government and also the World
Bank to actually deliver some funding which was missing, which was the reason why hospitals can
people you know, in prisons, essentially, but we want to we want it to get into a system in which it was
not for example, for the states to decide them in a top down fashion then it would say okay, now I will
define who is poor, who is exempted, and I will issue a relation that will apply the apply through top
down, bureaucratic kind of strategy. And that was inspired by actually US legal scholarship. On both
what's called regulated negotiation, especially in legal experimentalism. Legal experimentalism, is a
school of thought legal thought that tries and there's examples of cases in the US and sort of school
management or prisons, in which lawyers and judges accepted some forms of remedies in which rather
than issuing a top down bureaucratic command on the state or in the municipality, the judges will
actually frame the system in which various stakeholders could be asked to basically sit down together
and come up with a regulated negotiation with a form of system to make it work right the participatory
kind of framework, legal experimentalism is inspired party for those who you're familiar with it by
Democratic experimentalism, which is, you know,
school of thought that includes both lawyers and political philosophers. Charles sable is a big person
there at Columbia as an inspiration. Okay, so the challenge was to keep the distinction from reappearing
and to actually make the under resource system work. So you want to push through all of the means
that we can to get the money. But once the money is there, you want to make sure that you have a
system that can absorb it in a way that is participatory, equitable, right space, if you want. Okay, so you
needed more money, but you needed also a multi layer institutional system, they would actually deliver
good enough care according to what's in the spirit and the letter of the International covenants. Okay.
So legal experimentalism, I'm not going to go much further into it here. But you have essentially a hard
problem people don't know how to answer to and the command and control sort of hierarchical
bureaucratic policy management doesn't seem to have good answers. You have various interest groups.
In this case, you know, you have the hospital nurses, you have the World Bank stage, you have the
community leaders, which are all affected by problems or which can affect the problem. And the idea is
to create a form of a process through which representatives of groups will come together, think about a
problem. And then the idea of legal experimentalism, borrows a lot on the notion of collective learning.
So the idea is that you design a solution here, you know, how are we going to finance an equitable
health care system, and you try them out, and then you evaluate, and then you, you get lessons out of
186
it. And in some of the US scholarship about it, you have cases in which courts have asked various
stakeholders for prison management system, for example, to come together with solution and come
back to the judge a couple of months after to show what they've actually done. I don't know if this exists
in Israeli tasteful, but in the US it has in South Africa, the Treatment Action Campaign case about mother
to child HIV transmission drugs, which is a famous case, which in which the South African Constitutional
Court recognized that justiciability have the right to health and condemn that South African state for
preventing In the transmission, the district redistribution of mother to child transmission of HIV in the
remedy, it actually asked for the government to design a plan, but also to involve a number of grassroots
organization unions and other players and to come back to it a few times. Okay. So that is that is a way
in which you can actually use or to just judiciary can see itself as sort of a, you know, a form of sort of
deliberative engagement with stakeholders and ask them have a leverage to to actually make them
come back. Okay. There are issues, of course of unequal experimentalism, he puts stakeholders, it's like
any form of stakeholder negotiation, if you put stakeholders around the table, well, they're not
necessarily all going to be equal, it's not because you're sitting around the table, that you have the same
weight to the same that your voice carries as much weight. So questions about, you know, you know,
how realistic is it for so in the in the Zackary remedy, we frame the remedy in which we asked, actually,
as I mentioned last time, that there will be consultations in that community leaders themselves will sit at
the table with the Ministry of Finance, and with other actors to design a system. Right. And it sort of
happened, there was a meeting, because of the pressure that was brought about by the advocacy
campaign by the little social movement that was there by the political leverage. But of course, the
question is, you know, what happens next? And, you know, how much know how much power our
community Cusco to really have when they sit at the table? And that's always a problem with any form
of participatory approaches, multi stakeholder approaches, is something that you always I think, and I've
seen it many times in many different contexts, you need to keep in mind, you know, how much does it
actually change the balance of power, and how much sometimes within a way to sort of, you know,
proceed through consultation that is only dissertation in a name. But in this case, because of the political
push, there was actually some results. And the Guinean government essentially decided in January, in
chapter to actually, you know, not only define the exemption more clearly, but also to disperse funds
directly. Okay, what happened after is that the World Bank impose a change of a system in which rather
than the cash and carry with exemptions for the poor, a new health insurance system, and national
health insurance system was imposed pretty much on Ghana. The idea, of course, would be that people
pay a premium, except if they were too poor to pay. But I went back a few times in actually more rural
areas of Ghana, and exactly the same thing happened, people who had not paid a premium because
they were really, really, like, very, very important. Some of these areas are sort of, you know, locked up
in rural hospitals, this time, when the same kind of pressure on their extended communities to do so. So
the history kind of repeated itself quite a few times. Okay, any question about this? Okay, so we then
had a, you know, we had, we were supposed to carry on with what happened after structural
adjustment, what happens after the inspection carry the terrible consequences of cash and carry
systems and structural adjustments that we had our guests from from Michelin was really delighted by
the exchange, he said, he would love to actually be in the classroom and discuss with all of you, we will
with visits. Next week, actually, the entire business and human rights because I had given you some
187
readings to do about this. And I want to discuss those and also discuss, give you an overview of the very,
there's a lot of legislation going on with extraterritorial legal reach, especially in Europe with regards to
regulating transnational corporations, and as made himself recognize this is something that he and a lot
of big transnational corporations, even the most righteous of them resisted, lobbied hard and fast, they
lobbied very, very hard against it. And now some people recognize that actually, it has some form of
impact. It's a very interesting field of law. A lot of people, you know, working in the clinic that we run in
school have found actually jobs now you have more and more companies that offer jobs and sort of
Corporate Social Responsibility slash human rights compliance. So for those of you interested, it's
something that I will try to give you an overview of, of the legal field with regards to this. But what I
want to do now is to sort of go back to our story of
what happens
after structural adjustments. Okay. So we're going to go through through for some of them, but I want
to have you start by working a little bit as groups again. Huh and I want to ask you the following thing so
I asked you to reach so I know that the excerpt is a bit frustrating because it's, you know, edited but it's
just to make it smaller shorter for you. And is writing to available pretty much everywhere online or in
your library. I asked you to read some of Amartya Sen's writing, okay, almost Yes. And I mentioned him a
few times Nobel Prize in Economics 1998 also almost recognized although it's technically an economist
as a philosopher, moral philosopher, political philosopher. I want you to try to discuss amongst
yourselves this is a way for you to sort of test what you understood of me first of all, who were the main
people what are the main arguments that he's riding against? That's the first one what what are your
takeaway key arguments? What are the key arguments that you heard or read when you were reading
and also what do you see as the potential limits of this thinking? Okay, so I'll give you about 15 minutes
to do this and then we will discuss together so if you don't mind grouping however you want it to three
five maybe not more than five that will be great. Open to break out so please join them?
Okay morning up it right subpage day
what's Up. You Hi? You Okay, it's a couple more minutes but one more minute sorry.
188
So I want to hear from most of you today, please. Who is he fighting against?
Okay, the back Yes?
Okay, yes. Any more ideas? Specific specific ideas or different ideas? Yes. Great
liberal notion that you have to measure progress I like hard like categories like my projects or whatever
to measure progress in other criteria that
you're this is a great, yes. So, people consider development as an end in itself. People who do this by
arguing that the way to get to development is through the recipes of the Washington Consensus, which
includes of course, favoring growth and income as a primary objective. We're getting there. There's
another category of people or or ideas at the time that is also writing against any idea. Yes, and then
yeah. Which trade offs
okay, yes, we'll detail this a bit more. You wanted to add something Yeah.
is cheap very poor people. rather die also rights against the same government solution.
People they are able to
189
do it in a way yes, I wouldn't. I wouldn't say against the state in general. But I guess the new level of
states in particular, definitely, you know, the kind of state that doesn't allow people to be grant so both
against the neoliberal state, but also the authoritarian states that adopts this notion of liberty trade off.
Remember the idea that growth must come first and that civil and political rights should be put aside?
So yes, against the states, but especially against specific visions of what the state is. And it's there's two
kinds of arguments there. So you're all collected up getting there, someone else else wanted to ask that
something?
So after that?
Okay, so we'll see how that actually, he develops these ideas, if I understand you correctly, I think yes.
But it depends which kind of human rights. So you know, the idea is that there's some rights are
prioritized over others. And that's part of its vision is to sort of suggest that they're all they all should be
part of what should be considered, we really want human rights. And we have to think about rights as
interdependent and interrelated, rather than some rights. Yes, in some ways, no. Any more thoughts?
Okay, so why don't we? Why don't I give you a few, a few points on this. And then we'll carry on to this
idea. So you pretty much got it. Right. So one of the first thing and I'll send you a poster memo that sort
of summarizes all of this data, right, so just, you know, listen, and if you have questions, but the first
thing that he does is, is to go after those who considered that GNP or GDP per capita PPP, is a good and
the best surrogate the best way to measure development, right, that's one of his big contribution is to
have changed the metrics of development or try to change the metrics, we've seen that it's hard, there's
still talk of GDP gap all the time that really sort of tried to in this party when he got the Nobel Prize, right
to really revolutionize the way you think about development, not just in terms of GNP, or GDP growth,
okay. So that's a key shift in development, economics thinking. And he was particularly going after a
vision that was very prominent in the 90s, of what's called utilitarian consequentialist visions of welfare
economics. So welfare economics, basically looked at the size of the pie, the size of the cake, right,
without necessarily looking at the distribution of who gets what in the cake. But essentially, so seeing
welfare as something that would depend on the size of the pie, you know, growing national income as a
vision of what is good in economic terms. Okay, so the distributional aspects are missing from that
analysis. And that's one thing that's, you know, send writes quite long the extended way in his book and
in other writings, about, then he goes after those who consider that the best way to grow the pie is what
you said earlier, the neoliberal vision, the neoliberal recipe, remember, privatization, deregulation,
openness, trade, growth, through export led growth based on primary products and comparative
advantage, you know, this now like Ricardo, all of these recipe, free markets, policies and openness to
tray. And the idea, of course, remember is that these these policies, really, we're completely endorsing
the notion of both needs and equality trade offs, right, the idea that you need to let aside consuming or
giving people their basic needs, or even more, you needed to leave completely aside any idea of a
190
redistributed welfare state. Okay, and that's one of the things that he goes after. So welfare economics
growing the pie, and the best way to do it is to neoliberal recipe, the second big chunk that he goes
after, because it was really prominent, and as we've seen, it's still prominent today in many parts of the
world, sadly, but it was really prominent when he did his scholarship, mostly in the 80s and 90s. About
this was, what was that call? More or less authoritarian developmental states, in particular in function in
Asia, in southeast and East Asia. Those were regimes that had adopted for a variety of reasons, a strong
vision of liberty trade offs, you was, again, a welfarist vision, you want to grow the pie, you want to
grow, grow, grow. And the perspective here is that you want to do it at the expense, especially of civil
and political rights and civil and political rights can be traded off and pushed aside.
And there were two kinds of arguments in there that he's fighting, and just, you know, revising what we
did last week. One is a cultural arguments. He's very much in his book going after people like Lee Kuan
Yew, the founder and first leader of Singapore, to conceptualize this idea, you remember of the Asian
values, and you've seen it in other parts of the world, sort of different cultural understandings of human
rights, which are not Western, and which do not necessarily prioritize individual, you know, freedoms
against the state. But if you notions of community family duties, so as a way to resist the Western, what
was seen as a supposedly Western imposition of similar political rights? Okay, that was one argument.
And the second argument was that of the Liberty trade off, remember Huntington and also coming up
with empirical data, which is still disputed today suggesting that if you actually put a cover on the boiling
lid of modernization process, it will lead to stability, which leads to faster rates of growth, but the idea
and the deeply ingrained idea that Liberty trade offs are make economic sense. Okay. So that's also what
Amartya Sen is fighting against. So he's he's fighting against is that essentially authoritarian development
will save you probably in fashion, at the time in East and Southeast Asia in which are still in fashion in
many parts of the world, which essentially sets it adopted the vision of development, development first
and development and growth to the expense in particular civil and political rights. And the argument
was twofold. One is that civil and political rights are Western. And the second is that if you put simply
provides a side, it will be good for development. That was the argument which we explored under the
notion of liberty trade off Huntington's ideas. And then also some empirical arguments, which
remember, we discussed with Donnelly in particular suggesting that if you don't if you if you refrain civil
and political rights, if you don't allow people to unionize, to vote to, you know, to have their democratic,
similar political freedoms, it would be good for growth. That's also something that Amartya Sen goes
after. So what are his key arguments to counter all of this? So that's the context, which is important to
understand. And so that shows how what we studied last week is really the backdrop against which
Amartya Sen builds this theory.
So,
191
what are his key arguments? Some of you I stopped some of you from saying yes,
but the freedoms are the freedoms are a way to achieve development. The under freedoms limit the list
of freedoms that are inter related and that
achieve each other the bottom line is that a Hungry Girl cannot educate herself at the same time
significant Okay, that's a good bottom line. Right and more more ideas Yes.
What transpires next, seems to hit yes. But all the things that I personally have taught us we don't make
principles industry dance, expensive. departments like social.
Great, so all that is good. Now. I've told you what he's going after. Can can get anyone any of you see
some specific arguments against what I just saw, either against the sort of the neoliberal needs and
equality trade offs or against this sort of authoritarian developmental state civil and political rights trade
off? Liberty turns out yes, yes.
Yes. Yes.
Great, that's that's one of his most famous examples, right. And that's the idea to suggest that, you
know, if he wants to expand as you say that, there that development should be conceived in a much
more broader way, as a concept as a as a goal. So this, this first line of argument is what you would call
your theological instead of a philosophical vision of the concept of development. And use is very, you
know, clear, empirical examples, which you can now all understand, because you know, what TPP is,
that's when we did it. It uses the example of comparing the income per capita PPP, so comparable, of
African American males in some parts of New York, I remember correctly. And especially people in
Kerala, for example, paralyzed the state of India, which for a long time was run actually by the
Communist Party, local Communist Party. And he says, essentially, people there if you compare it to be
as much less money, right, but if you use other indicators, such as how long they live, or the quality of
192
their health, you can actually see so there's a variety of reasons of course, there's violence in the Bronx
and Harlem, but there's also very good health access to health care in Kerala, right. You know, there's, if
you use other metrics, you can see that people in Kerala actually do much better on these metrics and
these other patents. And his fundamental notion relates to work he did with his person who was his
partner for quite a while and Martha Nussbaum, he developed what's called the capabilities approach.
He says, basically, that development is about, you know, uncovering and freedoms. And it's about giving
every individual so there's a kind of a liberal individual agency approach is thinking that people should
be able to live a life they have a reason to die, right. So you shouldn't, you should try to develop and
should be about fostering people's capabilities. And that includes living a life they have a reason to value
and living life. The other reason to value might mean that you want to be more rich, but it probably also
means that you want your kids to live, you know, up to adult life, or that you want to live longer, or that
you want to be able to read so it basically suggesting that there's a yes, income might be part of the
story part of the goal, but it cannot be the only one it doesn't necessarily translate in other things that
you may have a reason to value. So yes, income, but education, health care, access to you know, cultural
goods security. So he lines up many, many different things, which can altogether we can see as the goal
of development as freedom, as he calls it, right.
Importantly,
what is he includes in the overall things that you may have a reason to. So income, but I said, especially
health and education, are primary examples. That's why he uses Kerala because they're very good
access to health care and education in this particular area that he uses in therapy, what are the other
things that make people may have reasons for bad recordings?
Think about what he was fighting.
So remember, this idea that, you know, civil and political rights should people decide the name of
growth, he makes a really strong points, that the ability for people to participate to participate through
democratic civil political rights to access to information, etc, is also part of what you may have reason to
value. You, it's important for individuals to be able to have a say, to participate in for example, the
decisions that the country will take in deciding whether he wants to invest in health or in in the army or
in you know, green development or education. That is also part of the goals of the conceptual
objectives. Freedom is also so it's about income, it's also about health, education, but it's also about
your ability. This is really a philosophy of individual agency. You can Aristotelian vision of agency for
193
those of you interested in that, that really is about participation in the decisions to decide what as a
country is valuable. What do we have a reason to value is what also part of the service. So in human
rights, what does that translate into that translate into the notion that the whole range of rights,
economic, social, cultural rights, access to education, health care, food, but also civil and political rights
can be conceptualized as the overall objectives of development. So development as freedom in
portraits, all of these rights, and as some of you already said, we've already discussed this a little bit. He
does this in a way that conceptually tries to show that all of these rights are a bundle that comes
together. Okay, you can prioritize one over the other, that's what he's fighting against. Because the
neoliberal model does, it's the authoritarian development to state doesn't. He's suggesting that all of
these sets of rights, especially civil and political rights, on the one hand, economic, social, and cultural
rights, on the other hand, are interdependent. Remember, we talked about this already, is partly
inspired by Marx, who suggested that, you know, similar political rights are just about the individual's
sphere of privacy and liberty, and how it's being encroached by the States and of protecting it to
negative obligations of the states. And he said, that's not enough, it's not looking at the material
conditions of what happens in real life, how a landlord is, you know, victimizing a tenant, how the
market we do gender, but how, you know, there might be violence in the private sphere, between
domestic partners, or between, of course, a factory worker and an older factory. That's some marks I get
it, this should also be taken into account, and it relates to enforce social rights by unionized etc. And sign
also says, you know, the problem with only focusing on Civil and Political Rights is that you don't focus
enough on material conditions. So what's the point of having the right to vote? If you can't read who's
on the ballot, or if you don't have enough food to actually go and walk the walk to the voting booth?
That's one part of the story. That's why he said you can't only focus on civil rights, you need those two,
and they're part of that the objectives of development is freedom. The flip side this is where he's, you
know, again, Aristotelian Is that what's the point of having, you know, guaranteed and Effective Access
to Health, Education and Welfare say, the moment you say something against the sacred, contrary, he
also says that that's not freedom. That's not you don't have access to your capability, because having
the possibility to have a voice is also part of what defines you as an individual. Okay. So
yes, importantly
any reference think that is something that most people
want to feel? That was an exciting time.
194
Sure, I mean, yeah, so we're gonna get I'm gonna ask you in a moment to talk about critiques. And you
told me that story of you know, I went to Morocco one and the sexy guy asking, what do you do, and
you said, you know, for me, what's most important is that I can go to the hospital, and that the roads
work, and the rest I don't really care about. So it's a long standing argument, but Sam takes it on.
Because it was it was very much why especially governments, the authoritarian developmental states
that were attacking, were not only suggesting that similar political rights were a Western northern
concept, but that people actually didn't care so much about them, because they see things in a different
way, they have an Asian way, or an Indian way, or whatever way, culturally different way to see things in
which, you know, those other things are important or to tip and he's, you know, he takes it off, so he
wouldn't be there. And he's very frail at all, but he will, he will try to argue with you that he doesn't
agree with that at all. And he actually tries to find sources in for example, in India, sort of philosophical
sources that he tries to use to show that these values are not just Western, they're just, you know, more
universal than one thing, but you know, that's an art your argument is one that he has space for quite a
long time. Okay, so the end of development is not just income, but also living longer healthier, that's
related to economic, social and cultural rights and having the freedom to participate in activities that
affect you with up to 70 political rights. And then the idea that all of this is interdependent. You can't eat
civil political why? What's the use of the right word? If you don't have food? And the flip side, what's the
use of free healthcare, if you are actually can be thrown out in jail with with the due process. Okay, so
that's
my two cents. Arguments
summarized here quite briefly, in terms of his first the first part of his vision, which is that development
is about freedom and human rights should be considered as an end as a goal of development,
interdependent sets of human rights all together, because they relate to each other are the ends, the
goals should be considered as the goal of development that relates to the idea, we'll see this in a
minute, that you have to change the metrics, you have to change how you evaluate development, it's
not just income, but it's health education, but also civil and political rights. And that related and
translated quite directly in a number of new indicators, and we already looked at right development
index. And if you think about sustainable development goals, remember you guys in the first session,
that's it right, a lot of these ideas are their development is growth, this SDG number eight, right? There's
many many other things to consider. Yes. Distinction cookie.
So he's got he's got another piece in the philosophy journal where he comes up with a philosophical
theory. So he is getting a human rights lawyer. So he talks quite freely about sort of moral or legal, he
doesn't say we don't want to put rights in a juridical cage. So do not ask Do not enter this debate. But it
195
definitely is for the trend, transcending this idea of freedom, first and more important there for
generation or second generation or one against the other. Right? Basically, he's trying to show that
they're all parts of one same vision. And, you know, he writes this at the end of the 90s. The timing is
not completely innocent, right? It's after the Cold War. And if this were something that you can say
something like that as a more of an impact, but I would say yes, so that's the idea that rights, all sets of
rights are ends of development. But then he sort of puts on his empirical hat. He's an economist. And he
tries to use another set of arguments to say that, okay, if we agree that we should expand the way we
understand and evaluate, through metrics development, to include human rights, we should also think
about human rights instrumentally, that human rights are not only the ends part of the ends of what
defines development, but they are also rather than things that you need to trade off for later luxuries
that need to be put aside for growth through neoliberal or authoritarian ways. Human Rights tries to
show are actually instrumental, they can help generate better results in terms of development, including
growth. Okay. Does anyone remember what his one of his sort of famous It's famous arguments he uses
to demonstrate this? And it relates to work you've been doing for decades? Fresh products for John has?
Anyone? Remember when he talks about salmon? What does he say about salmon? Yes, it doesn't
happen in that
bottom line again. Bottom line, that's the bottom line okay. So, I can make it longer.
It compares the number of countries which are similar kind of, you know, supply of foods, you can play
as you know, Bangladesh for example, some regions of the Sahara in the 70s and 80s, with India,
imperfect, but still working democracy, same kind of conditions in terms of you know, whether food
supply demand, etc. And he basically says, you know, in terms of food security, there has never been a
real as you define it rigorously, a real Simon has been, of course, food shortages, but not a real famine in
India, whereas there have been neighboring Bangladesh. And he says, and he tries to show this and
UNICEF huge are working on it, showing that the incentive structure of democratic liberal states is such
that through electoral cycles, but also the presence of a free trust, puts pressure actually, on decision
makers, policy makers, as well as you know, suppliers of food to actually get the food there to get the
food to people. Okay. And he shows that in largely authoritarian states, this is really against Liberty
trade off. This actually doesn't happen. You have families, right. And that's a famous argument which
can be used and we use and discuss there's been, you know, a lot of arguments, we'll discuss this during
COVID, about whether authoritarian states are better or less better equipped to deal with something
like, you know, health security or pandemic, right. So we'll have that the never ending argument. Some
people will say, Yes, some people will say no, but if this is Amartya Sen, demonstration, this is really
important. So focusing is really fighting this idea of Huntington and the idea that civil and political rights
196
should be put aside because if you put them aside, you have better growth when he tries to show us
that actually, you have disastrous economic results. Famines are not only bad, because people get
hungry, which for him is just as important as the lack of income, remember, but also you will have
economically disastrous consequences. So economic security, with the idea that you don't have a
feminine functioning democracies is something that is promoted by civil and political rights. That's one
thing, the second thing he does, is he just like Jack Donaghy, remember that done in the essay that we
wrote together Democracy, Human Rights development done, you say there's a lot of people try to
show that Huntington was white, and to show empirically, that if you suppress it, faster rates of growth.
And Donnelly tries to say, well, the causality is not proven. Okay, I gave you examples of a couple of
people. Danny Kaufman and Robert Barro at Harvard, since then, have been trying to show empirically
that actually suppressing civil and political rights is not good for growth. Other new arguments that said
this time, was pretty much saying the same thing. It's funny that he's saying there is no proof that if you
suppress similar burger rights, you have faster rates of growth. There's a two arguments, one, if you
suppress civil and political rights, you're gonna have huge damages, such as food security and economic
security. And also, he disputes the empirical evidence that if you suppress similar political rights, you're
going to have faster rates of growth. Okay, that's one one, what it is, then with regards to the needs
inequality trade off, and the neoliberal idea that what you need to do as a developing country is,
especially to put economic, social and cultural rights and form of redistributing wealth, step aside, you
need to use cash and carry you need to do what happened in structural adjustments, okay. Because
goosenecks, and Commodore and all these people are saying that that's the right thing to do. He is one
of the people who basically made a big contribution to
dismiss the consensus, which was the consensus for a long time, we remember this notion that
efficiency versus equality, the idea that you needed to let inequality right before it goes down.
goosenecks uncover the saying that actually, if you do promote economic, social and cultural rights
within your states, and especially if you focus on those rights sort of grounding, or pushing states to
massively invest, to give more equal access to health, and education, all of that, rather than being
luxuries and have to wait because they will interfere with the market based allocation of resources.
That's the Washington Consensus idea. Is everyone following here? Yes. He's actually saying, no, what
you need to do is to do the country. And it shows same empirical evidence that you will be looked at last
week, you know, South Korea, for example, as one example of actually drawing on states, taxation and
the reallocation of resources to invest in particular in health and education really promotes a vision that,
you know, investing in health and education. So the states but with the different states and more social
democratic states decision is that one of the promotes this will be good for a number of things, it will be
good. First of all for labor productivity, right if you invest in it ports education, they will have higher skills
and therefore the productivity and overall economy will be higher by higher skills you can you can build,
you know, Koreans were able to build an export kiosks all around the market. That's what he is
essentially saying. But also, if you actually invest, for example, in larger levels of health and education, if
you have higher levels of education, that people the skills are higher, the salaries might be bigger, you
might have less inequality among people between, you know, a small pocket of rich people and a large
population of low skilled and relatively poor populations, that will actually be good. So they're provide
to reduce inequality, which we now know. And Sam was really one of the people proposing this that
197
inequality rather than being something that is good for both goosenecks, condo etc, we're saying for a
long time, inequality is now seen as something that is actually potentially bad for two things. I'm just
repeating what we did last week. Inequality can be bad for growth, for sustained amounts of growth and
for the ability for growth, divinity of growth, to reduce poverty till assisity, of poverty to growth. Right.
So his argument here is essentially saying civil political rights, economic social contracts incrementally
are also rather than luxuries, they can actually lead to benefits, economic benefits you avoid signing in
might not actually be that bad. If you if you if you allow for civil legal rights in terms of economic growth,
he says there's no proof of that. And economic, social and cultural, this is where it goes after the
Washington Consensus needs an equality trade off. He says no on the country, you need to actually
possibly tax and we invest in health and education, it will be good for labor productivity, it will lower
inequality, which is good for problems of growth to reduce poverty. This is really where he puts on that,
you know, Nobel Prize economics kind of argument. Is that clear? To everyone? I hope it is. There's a I'm
gonna send you a memo where all of this is a bit more detailed, but if you have any questions, don't feel
shy to ask them now.
Okay, now, the third question I asked you was, what about? Yes. Oh, there's a question. Sorry. Some?
Ah, yes. Go ahead. Hi.
So I'm sorry, if this question was already asked in class, I couldn't hear all of the question asked. But my
question refers to a bit of an earlier part of the discussion on the position as Mr. TSN, because as I was
reading it, first, I was interested in, you know, the usage of Marx, because I'm a TSN seems to be
accepting the general framework of capitalism, and it was working to try and insert somewhat of a
different understanding of it perhaps less neoliberal and more towards the welfare state. But But
definitely, that's not a framework that mark would ever be willing to accept. Neither is Graham ashen
and other writers that he is referred referring to. And second is as his approach towards, you know, the
the critique of coming from the third world of both development and human rights, a lot of other writer
position, both development and human rights is kind of, you know, the the modern replacement to
Christianity and civilization. And so I was a bit curious in terms of how exactly to position him, when it
seems that there is very little discussion of the deep heritage, historical heritage, colonial heritage, that
are embedded in the very structure of both development and human rights, even if we see, you know,
human rights as being the ends and means of development. So these were kind of two issues that I I felt
I wasn't entirely sure how to position him.
Great. Thank you for your questions. I hope everyone heard otherwise. I'm gonna restate. The first is,
you know, I talked about the proximity in some of the arguments have been sent and marks and Tamara
was rightly suggesting that, you know, well, send doesn't really seem to completely and to Mark's idea,
198
critique of capitalism, right. And this is exactly one of the critiques that we're going to discuss now. And
the other one is how to situate it Same visa be a number of critiques, including by scholars of what's
called Third World approaches to international law alone scholars which consider essentially
development in the two sides of a coin that has post colonial echoes, and then impose some form of
capitalist liberal market, society and the rest of the world. How do you situate? So those are excellent
points that relate to the before I addressed these. Let me ask you guys, if there were other critiques or
ideas, some were already articulated earlier? About 10 Why do you think is problematically we seem
perfectly you know, break and clear, especially in explain, it's such a clear what's the prob what's the
problem with that? Or do you have to disagree with what to say? Or who you think might
disagree with? Anyone? Yes? Idea of No, no action? Yes. It's not a big undertaking
Okay, so those are all great. So one of the first thing you remember the first session when I when I ask
you, what's your definition of development? You guys are there, we're basically coming up with our TSS,
you know, very extended list. And that's one of the participants, right? It's almost like, you know, the
perfect grocery list, you want everything at the same time? How are you going to achieve all of the same
things at the same time? Okay. Well, that's it. So that was like, why I started with what he was going
after. And one of his main contribution was to completely really, for the first time question, the notion
that development should be only understood as growth, as we've seen, this is a very sticky idea that,
despite Sen is still very much there. And his goal was really to to undo this. And he was quite conscious,
of course, that conceptually, when you set out all this list of freedoms that are achievable, it's actually
going to be hard. And he's not surprised that we've taken the sustainable development goals today is
that it's a, you know, a lot to achieve at the same time, but his main point was to debunk the idea which
had been predominant for, you know, decades, that it's only about growth. And that as we've seen,
again, it's very, very tricky to come
around.
Theory, no action in actually, you know, I would personally agree with this. If his big contribution has
been to really reconceptualize the way you should evaluate and expand the understanding of
development, he doesn't come actually come up with a completely different, or even a theory, a theory
in terms of you know, we should do this and this and this up develop, he should doesn't say we should
privatize, or we should deregulate, or we should definitely add to this, okay. Again, this is because of
who he was fighting against, because he was fighting against people who had a very specific recipe. And
199
this is also addressing Tomas by his vision, is one that tries to rein in some of the most, you know, radical
version of both authoritarianism and neoliberalism by suggesting that, you know, you should, you know,
a social democratic vision you should reinvest in health and education. But what's really important is
that a number of freedoms in his expanded list, include includes completely tomorrow to answer your
question is not Marx, you know, he's only draws a mark to talk about the interdependence of rights, but
in his approach, it's a very liberal modernistic approach. He doesn't go against the idea that
development should be about remember destruction of a wrenching structural change from tradition to
modernity doesn't really go after that. He says, you know, we should, we should refrain from doing it
either in a liberal liberal way. In an authoritarian way, we should sort of make sure that health and
education are invested into it, we should make sure that human rights are not considered as luxuries.
But economic freedom, the ability to contract to enter into trade is very much part of the story too.
Right? He says, If you don't have that, that's also a failure to your capabilities and your freedom. So
there's there's nothing anti capitalist about it. And there's nothing that really goes against the idea that
you could consider pushing a little bit here. But it the idea could be understood and has been criticized
the same basically tried to equip individuals better, to eventually become active, more skilled laborers in
a global economy that will be open. And you know, following the steps of export led growth, or supply
chains, I mean, there's nothing really definitely not anti capitalist about it, there's something socially
democratic about it. But there's no a there's no theory of development that is very, very new, or that is
there. And some would say that it can definitely touch classified as a liberal. As a liberal modernistic
vision of development, there's another few things that are what's the big thing that seems to be missing,
that we know or we actually try to sort of think about it more today.
Develop a sustainable development, sustainability environments, recognize Natural Resources

absolutely does not present really in his vision of both either sort of visual development or instrumental
means. And with regards to his positioning, with regards to sort of post colonial or third world
international law searches, he definitely doesn't consider himself to be part of that group of scholars,
precisely because when he was fighting, and you know, you have to give him credit to try to do that was,
you know, sometime unfaithful or dishonest, used by some governments, about the idea that human
rights are Western, in particular, to promote some visions of culturally relative authoritarian, that really
is something that really, he was fighting against, very, very hard. And in a way, if you want that was
trying to actually draw your book starts by reading all Hindi texts that try to show that, you know, the
vision of freedom and division of rights is not necessarily one that is purely Western and modern and
liberal, but it's one that is actually more universal than that. So that's, you know, really strategic entry.
But again, he wouldn't you know, he's a liberal, modernist thinker that wouldn't necessarily to not be
qualified in the same camp, if you want, as, as possible on your third world approaches to international
law scholars, you know, the lawyer itself, that is not a post colonial thinker. That way you're not facing
that. And that is a critique that has been raised. Yes.
Shall we?
200
show lots of shows actually, it does.
That, I guess, I guess that's why he's making the truth. This is why it's important to see that he's making
two prong argument. The second part of the argument is really aimed at finance. He wants to make his
point economic. But his answer would be, in any case, conceptually, the right thing to do is to promote,
part, their part of what people need to be really free. Okay. So you know, he's got a sort of a more
consequentialist sort of economic approach and a more geared to logical approach. So you can, you can
flip one or the other. He tries to show economically why this is the right thing to do. But he would say in
any case, it's the right thing to do conceptually. And this is where he, you know, he does seem to, I
mean, whether we like it or dislike, it's interesting. It's important and interesting, I think, to understand
the different layers of his argument because it's something that distinguishes him from a number of
colonists who just basically try to go and prove whether similar political rights are good or bad, he goes
beyond that says In any case, philosophically it is. And you know, in that case, again, is a very liberal
individual agency kind of vision doesn't talk about some of the some of the Ristic kind of, you know,
societies. But he's got to at least a conceptual vision that is not just one in which the empirical
arguments are used.
Okay. So what came out of all of this,
so, the Nobel Prize, but also, you know, Human Development Index, and all the families, eventually the
Sustainable Development Goals. But very importantly, the idea that, you know, human rights can even if
not everyone agrees with it should not automatically be considered as a luxury right. So you ended
important report by the United Nations Development Programme UNDP report in 2001, that talks about
human waste and development, human rights are not luxuries, that can wait, they can be actually
integrated in the way development policies are designed, conducted and evaluated. So it's a shift to
actually infuse and include human rights principles in the design and construction conduct and
evaluation of development policies. And that is sort of the starting round of what's called human rights
based approaches to development, human rights based approaches to development started around the
turn of the century, largely influenced by Sen but not only, and you can still, if you Google human rights
based approaches, you'll find human rights based approaches to pretty much anything you can think of
Social Security, women and rights, education, development, development policy, there's a lot of it out
there. It was really in fashion, about 15 years ago, it went out of fashion come second fashion, but
there's still a lot of things going on around it. And the idea is essentially to infuse human rights north
201
into the legal mode, in the in the way, again, development is so as sort of a guide of how development
policy should be designed, rather than development being just about sort of designing policy, almost like
a charity and measuring the outcomes. There should be, you know, for key human rights notion in a
human rights based approach to developments, participation, we started talking about it earlier class.
Empowerment, non discrimination, and accountability.
So, the idea is that, you know, development becomes guided by these core principles. And it's not just
sort of a, you know, almost kind of technocratic outcome or governance outcome. It's something that
they can take with the notion of accountability. Especially, there's some kind of dynamic vision of, you
know, who is, you know, a duty bearer here, and how can pressure be put on stays, even if it's according
to what you said earlier, the notion that rights are progressively should be progressively realized
according to maximum available, which just creates a different kind of dynamic. That's the arguments
for rights based approaches, and they're largely Edwards by Amartya Sen. Okay. So that's one thing that
happens, and we will discuss this, we have 15 more minutes, and I'll discuss this briefly. And we may
continue actually tomorrow, economically. So sadness there. There's also a number of voices, including
people with work on the Washington Consensus, for open trade, globalization to trade, free point, direct
investment contracts, property rights, etc. We suggest that globalization the same time 2000s, early
2000s that globalization or the neoliberal Washington Consensus had gone too far. And then you
Roderick, a number of other voices, especially Joseph Stiglitz, is a backlash against the neoliberal
Washington Consensus, because it fails in some countries to produce growth and also create situations
like like Muhammad, Zachary situation. So what you have is what Joseph Stiglitz around 2008 2010
called a post Washington Consensus, right and accordingly, we're still somewhere there. There's another
type of consensus, which is the Beijing consensus, some form of, you know, quite unregulated forms of
trade and capitalism with a very strong state authoritarian state at the same time, but at least if you
look at the World Bank or USA, it sort of Western approaches to development. There's a more the
neoliberal Washington consensus was about sort of really quickly privatizing and deregulating and
opening the economy very quickly. The idea here is not something that's more sequence, okay. And that
you need to pay attention to local institutional variations. The Washington consensus was a recipe, a bit
like Rostow with a recipe, this was a recipe that was applied and exposed to the entire, you know, entire
developing world by the World Bank and the IMF in the 80s 90s 2000. Now, the ideas to do it with those
countries. And that you have to sort of do it country by country, rather than repeating the same recipe
everywhere with cash and carry system etc, you have to look at, you know, the context, you need to
have local ownership and a facing of reform. Right, and this is the idea that new they should be more
participatory. What you need to do remember that the neoliberal Washington consensus was all about
telling, for example, African countries to go back to exporting products that they had a comparative
advantage like agriculture, it was this 1981. Their current reports was the example I gave last week, it
was really about growing for trade. There's a renewed focus on also focusing on domestic markets. That
these last two points here are partly related to sin, but also to Joseph Stiglitz and Joseph Stiglitz, a few
202
years after Sam has a Nobel Prize in Economics, because we have no visibility to prove or talked about
what he calls market failures. So the neoliberal Washington consensus was to was meant to show
government failures, especially of the ISI model, remember our Cougar who was looking at the
exploiting licenses, and how this really that political economy of incentive grants corruption,
government failures, the backlog, but Joseph Stiglitz showed is that markets free functioning markets
have what you call informational asymmetries. Everyone does not have the same information. And that
creates sometimes market failures. That's why he got the Nobel Prize in economics are really
summarized in theory very, very badly. But that's basically justified for Stiglitz. And remember for Sen.
Also, remember the idea that you need to actually have some kind of state intervention to revenue
market fit is you need to have the state invest in health and education in food and housing, because the
market itself could not do it. And you need to have poverty, health education, safety nets. For some,
these are more expanded safety nets, perhaps than for Stieglitz, David, all of that is, you know, what is
has been around for a decade as sort of a an idea that, you know, one of the one recipe you need to
take all this into account and Simon Stevens were partially influential in promoting this. Okay. So in
terms of rights based approaches, then me just move on to, to this
to two things.
Two factors explain how they came about. And they became quite prominent. One is Amartya Sen, his
ideas, okay. Human rights are not luxuries, but you should incorporate human rights in the way you
guide development policy that we should have some level of discussion, accountability to make sure
that states do things in a certain way, or he's justified, why they haven't done things in a certain way.
We will discuss this we'll have an example you guys will work around it in the context of COVID to see
what's meant there, but there's also a political historical concept context, I'll say a few words about this.
The first one, I mentioned it earlier, is the end of the Cold War. The end of the Cold War is marked by a
moment in which rather than similar political rights, seemingly belonging to the Western sort of camp
and economic, social and cultural rights to the communist bloc. They're proclaimed, again, to be one in
the same thing and to be interdependent is an important conference in Vienna in 1993, which reaffirms
the indivisibility and interdependence of human rights. Okay, and there's more and more countries
which sign on, you know, either the ICCV already icescr Or that sign on the new, regional, especially
international treaties that we looked at. There's also a part of the story which is often forgotten, which is
as follows. The Rwanda genocide, they actually a quite important goal, especially at the level of the UN.
Kofi Annan was the UN Secretary General, was partly influenced by Sen. But also in what he saw
happening just before one, they are looking back at what happened in Rwanda. All of this really
influenced them to order essentially, policy, mainstreaming human rights development policy, human
203
rights based approaches, participation, empowerment, non discrimination, accountability to guide all
UN development work, not the world back to the UN. So the RONDO story goes as follows, there was
another, there was a couple of reports suggesting that in a way development work as soon as a tick
kradic, top down kind of enterprise, it's meant that before just before the won the war, there were
reports for example of aid workers financed by the UN, who were working, who are reporting very
positively on the fact that more and more water or electricity had been actually provided to government
facilities, and they read this as a success. Okay. And the idea was that, you know, developers should
have a blood, you know, a workers should have a blind eyes with regards to the political situation. So
what they put mattered was outcomes, outcomes of policy, measurable outcomes. And it turns out that
many of these un funded supply of, you know, infrastructure for government facility, were actually
building up the facilities in which the government of Rwanda progressively started to put people in jail,
just before the genocide, but it actually have both political opponents and eventually allowed for, you
know, very quick slaughtering of some of these, all of these political opponents during the atrocity. And
that was something that really, Kofi Annan testified later. But that really affected the fact that
development workers at the UN were really looking at things in a very technocratic cost benefit policy
way, and they really look at, you know, what, what, whether the development money and development
projects we use to do part, okay, so at the very least, a rights based approach, development is meant to
actually make sure that there is no harm in what is actually killed or first, or that there's no child work,
for example, when you finance them, there's no political repression, when you allow for some
finance, for example, the budgets of a state. And then,
okay, in terms of Brightspace approaches to development, we'll see if we have time, I wanted to do a
quick exercise. We don't have time now maybe we'll start with this. Think about this. But they're sorry.
Tomorrow. Tomorrow? So those are the questions that one can ask, it relates a little bit to what you
guys were saying, there's a lot of things on the list. Is it? Is it really a plan? Okay. And if so, what is it that
and maybe I'll do it, maybe we'll do it, we'll do it relatively quick. Exercise, I might actually email you the
instructions before class. So you can actually think about it before class. And it's not very long and
complicated. So that we can start with this and come up with the important points. And the question is
about whitespace approaches to development which brings us by side and by the context transfer, you
said, same thing that that we have really changed the way development is done. And they really change
theory or they provide actually real guidance. And so what kind of guidance or is it limited? Or, you
know, does it really change things about what development is about?
Okay, any question? Comments? So
204
we'll just stop for today. And we will see we will start in two days. I will send you the exercise by email.
Class 9
Okay, let's begin. I hope you all receive my email or my message from yesterday. I wanted to try to take
a bit of today's class to try to make a bit more concrete and discussed were revealed storybook case,
mini case study will be called the other day human rights, what's called human rights based approaches
to development. So the human rights based approaches to development are a framework that is still
largely today used by a number of organizations, sometimes NGOs themselves or bilateral development
agencies, the British Development Agency different for quite a while and tried to sort of really infuse
ideas of human rights in particular participation, forms of accountability, and empowerment, and
especially non discrimination in its guidelines of how to design development programs and loans.
monitoring. And it happened in particular at the level of the UN. So what I'm what I will ask you to look
at is based on our other story that policlinic run up that a university, we did a project a few years ago
with what's called the UN Special Rapporteurs. Remember that when we looked at the UN, or the
international system of protection of human rights, one of the ways to try to monitor and to, to push,
push and nudge states to actually abide by the obligations, they sign under international treaties, was to
design what's called special procedures in the UN prolapse. And among special procedures, we didn't
have what's called UN Special Rapporteurs, you very often have UN Special Operators and different
rights on the right to food on the right to health, but also on themes. And those are decided the
mandate or voted by the UN Human Rights Council, the genuine human rights council, remember, that's
the diplomatic body to 47, diplomats were elected representing different countries. So it's interesting to
see how the mandates and the titles of these UN Special Rapporteur, very, very often there are people
who, who are also law professors or experts, some of them have been sitting on treaty monitoring
bodies, which are these, you know, monitoring bodies that look at the the states are doing through
these treaties. But sometimes when they're not anymore in these monitoring bodies, as individuals on
their own, they are voted and it's a very diplomatic game, they're voted UN Special Rapporteurs. And
there are many things they can do. If you remember, they can do country visits, and some of them are
very savvy and using media to try to push things on the ground. And, very importantly, choose the topics
of the reports that they present to the UN Human Rights Council and sometimes the UN General
Assembly, and they sort of set the tone for what are the important issues with regards to their, their
methods. So one of those is called the UN Special Rapporteur on extreme poverty and human rights.
That's one of the reporters that sort of gets quite close to our topic, and there's been many different
people over the years. But a couple of years ago, Magdalena Sepulveda, she's now the head of an NGO
called the general initiative for economic social and cultural rights, which is one of the communist and
he was working internationally in the field of economic, social and cultural rights. I was in touch with her
to say, look, we are trying along many different UN Special Rapporteur to push a new procedure, which I
205
talked about a few weeks ago, which is called the communications procedure, the communications
procedure is one in which civil society or individuals can try to contact the teams or directly the UN
Special Rapporteur to alert them to a very specific issue, and to try to convince the UN Special
Rapporteur that there's enough here to actually engage in a procedure which is both formal and
informal. With governments. It's formal in the sense that you had to follow certain process they have to
write what's called a communication, then the government has a number of weeks to answer the
answers and the communications are not made to be made or not made public for at least a certain
amount of time. The reason for this is sometimes to make sure that things are done quickly. So there's a
UN Special Rapporteur on forced disappearances, for example, they're sometimes alerted to someone
who has disappeared, and they tried to sort of, you know, go under the radar basically, in order to
convince governments to choose to make a move.
The goal of Magdalena Sepulveda was to try to really along with a number of UN Special Rapporteur to
promote this kind of, you know, informal mode of communication, because of the frustration, of course,
it's the general system in which you remember, if you want it to go to a treaty monitoring body, you
have to, you know, go to court, for example, domestically and then exhaust all domestic remedies until
eventually potentially, your case was heard by the Treaty monitoring body and even then, you never
know, it's not a binding ruling by a court. Technically, so, you don't know what kind of impact is going to
have. So, so, these communications are part of the work and the job of the UN Special Rapporteur, and
they, they, you know, they they sometimes seem to work sometimes some of them are only published
in the report by the UN Special Rapporteur to the UN Human Rights Council and it just listed there so, un
my sense is that some of my my Colleagues are playing a little bit on the relative anonymity sometimes
that can be given or sometimes they actually leak out or they make, you know, the use of press to
actually say that the event or the communication with and they haven't any reply. So that so as to put
some pressure on the government. Okay, so we worked with her in which he said, Well, it would be
really great if you actually read, analyze, and beefed up by research claims that we've received from a
coalition of NGOs, relating to, you know, massive type of prices in electricity in Nigeria, and the impact it
has on the population. So it was, again, informal, because we were not, you know, the civil society
groups, but we basically read their allegations, analyzed it and beefed it up and then help the civil
society coalition to that transmitted to the UN Special Rapporteur, and her team sort of gave us a little
bit of advice on what needs to be there in order to, for it to be accepted by the UN Special Rapporteur,
because that sends out to the government. Okay, so that's what I was in the, in the slide. And next slide
explains the procedure here. And this was a case study, right, an increase of 100%. So that actually
happens. And for those of you who have been in some countries, especially those who were going under
structural adjustment policies, or even, you know, there's there's just hikes that we in when I say we in
Western countries can sometimes imagine, but I've seen it myself quite a few times, in some countries
in Sub Saharan Africa or, or other parts of the world. So large levels of poverty, and concern that it
would aggravate condition at some people and vulnerable groups, society. And all of this related to
policy of privatization. Okay. So what I'd like you to do is, so we don't have a lot of people, but I guess it's
815 in the morning. But I do need five groups. So I'm going to ask you here to try to split up in four
groups if you can. So maybe one of you think we have one. We have three groups. Okay, so we have
three groups.
206
Sure. Already the size but. Our society, less less, less enjoy this increase.
I'm not sure I follow your questions. That's right. That's not the price. I thought I thought maybe the site
sorry, 100% of the supply of electricity, it's 100%. hike up the price. Okay. So your electricity? You know,
Bill completely goes up by 100%. That's the I'm sorry, if it wasn't clear. So that's the basically that's the
information we received. I guess maybe some of the students asked the same questions when they
received it pretty much. I took it from the letter that we originally got from the civil society group. It's a
hike of the prices in electricity. You have to go on the link. And then it says, you know, English, French
Arabic? Oh, it didn't yesterday. I looked it up. Can you guess? What if you Google un UN guiding
principles on extreme poverty? Because it worked yesterday? I did check it. So maybe it's some
maintenance today. But otherwise, you? So if you Google UN guiding principles on human rights and
extreme poverty and human rights is that document in 2011? Normally, it should be widely available
online. So apologies about this, but normally, I didn't look at it. Can you find it now on Google? Okay. So
it's just basically to have you have a look at so there's many of these examples. And that's one example.
It was a very consultative process in which the UN Special Rapporteur worked with a lot of lawyers, a lot
of policymakers to try to sort of give to make concrete some of the ideas and you know, they're not only
coming from sand, but you know, they are partly in spite of what does it mean concretely To give a
human rights guidance to states on how they should design and carry on policy of reducing poverty,
what are the signs of what is their margin of maneuver if we put human rights law and human rights
principles in the design of policy? Okay. And that's really the tricky part. That's one of the reasons you
remember the story that policymakers development, people were rejecting, you know, refusing human
rights, and they said, You need to trade it off, partly because it was political, but also because it seemed
very impractical. How do you, you know, include the notions of participation? How do you include the
notion of progressively realizing according to maximum available resources, what does that concretely
mean? And we develop and people are people who make policy choices cost benefit analysis, that's
what we do, we can't really do human rights. So that's one effort to sort of provide some guidance
based on the international human rights law and based on doctrinal interpretations, in particular, of
economic, social and cultural rights, of the idea of progressive realisation, according to maximum
available resources, of what it means. Okay, so let's try to split up into three groups, those of you who
are on Zoom, if you could actually look both at the what's what's with me here on the site is group four
and five, which is have a look at the Nigerian constitution chapter two, you can find this online Nigerian
constitution chapter two, and maybe one of you also online can look at the i icescr, already 11 and
Article Two, one, combined with the general comments, number three, paragraph 910, you can find this
quite quickly on Google. And we'll start by those of you born soon, if you don't mind. And the rest of you
can split up in three groups and look at the paragraphs of the guiding principles which are in there and
telling me essentially, the follow following, you know, what are what are the kinds of if you had been in
the group of the clinics, which was the case what kind of you know, arguments would you have based on
the case study on the situation that you've heard about? What would you have actually tried to get out
207
of these various pieces of law or guiding principles of soft law to try to sort of make a case that this
privatization in this situation was problematic in terms of human rights okay
so can you have three groups that you want to work here? One group here and one group here Okay, so
you guys have group one you guys are good too. You guys are three?
Yes,
I can put those up backup if you want further. It's here. Yes, 123 All right. You can you can join one of
the groups
What do you think is the what do you think is the most relevance? Wow. A couple of things, a couple of
things that you think are the most relevant Just a couple more minutes
yes See You Right okay so
let's let's start I would like to ask those of you who are on Zoom first if if someone could tell me whether
you find something potentially interesting in either the Nigerian Constitution or the international
covenants in the articles which I suggested Does anyone want to say what you found relevant there with
regards to the situation in Nigeria
I can go
208
oh hold on we can hear you try to make this louder Can you can you speak again? Can you hear me
barely okay can you hear us you mind maybe writing it on the chats? Yeah so yeah thank you very much
and it may be some someone else in the Zoom can can help
did so There you go. So from the from the Nigerian constitution
there's a couple of things which are related to what's called Directive Principles of state policy. You
remember this idea that the Constitution you sometimes have rights, which are right here we have
security and welfare of the people shall be the primary purpose of government, protect adequate,
provide adequate facilities for encourage free mobility of people, goods and services throughout the
Federation, suitable adequate shelter provided for all citizens opposed to shelter without electricity. So
there's a number of elements there. So thank you very much. That's indeed relevant. And if someone
else, not necessarily use someone else in the Zoom can do the same in the chat. Figure out, you know,
what seems relevant in the article of the icescr, which I pointed out in the meantime, but we're going to
do is we're going to ask the people here in the classroom.
So group one
over there, yes. Everything that Jerry did, according to the
first phase must be yes. Private. Maybe that reflects the fact that the state of its flexibility to come
back to this stage is maybe avoiding responsibility by privatizing Okay.
209
Let's talk about the largest possibility of the state of poverty and positive factor quality personal policy is
maybe horrible quality, Private f1, spirits, tariffs, but it's not at all quality of people, people like Google,
etc.
It's interesting, because this is a long standing fight by a number of lawyers of scholars of human rights,
you can try to craft arguments, including in case law domestically, or in front of the treaty monitoring
bodies. This this is an attempt to suggest that discrimination on the grounds of social economic status
could be received as an argument for non discrimination. It doesn't fly out very well in domestic courts,
because that's supposedly not one of the every country has, you know, a number of grounds of non
discrimination. Because it would be, you know, who would be actually hard to adjudicate, but they are
their science. Part of the team of our clinic has been doing an empirical study actually looking at
arguments received by especially UN treaty monitoring bodies, which have started to sometimes Thank
you. It's just people are speaking, can one have you tried to speak so we have a technician kinds of
things here. Hello, can you hear me? Yeah, thank you. Thank you very much. Gonna come back. So
there's been there's been attempts to try to frame you know, arguments and empirical studies showing
that some treaty monitoring bodies are starting to sort of work around it. Some have been bold enough
to suggest that in some circumstances where there's discrimination on the basis of geography and social
economic status, it might be receivable. It hasn't really been recognized in domestic courts ethics, but
Okay, great. What about group number two? What did you find? So they had quite a lot of articles, but
what seemed to be particularly relevant, so you're right, everything seems wrong and relevance. But if
you're trying to convince the Nigerian document that it has done wrong, you have to try to find the
sharpest as any good lawyer with the sharpest arguments. Yes. Can you tell everyone what they were
about? Public Participation
And then we also saw that article 49 That's all right. Great.
So join the minimum number of rights participation right there say yeah, get that there's been
absolutely no consultation. Remember one of the key ideas of rights based approaches accountability,
empowerment of the poor is non discrimination. And participation participation is really important to
hear, you know, from day one to the other without any form of debate or consultation boom. 100%. So I
did look at the slide it does say at the very top of the slide in red tariffs. I thought it was it could be could
work very well. So group three Yes.
210
States that there's any change in policy? Yes. Certainly, resources, services, facilities and so on to the
public. First thing that needs to be the possibility on stage to take into consideration that we have
segments of the population, especially those with extreme poverty. So that's 51 Yeah, article 53 states
that responsibility of the state to invest resources in ensuring that we're speaking access to those
services facilities and so product people who are awake are segments of the population six relates to
privatization states that even those services are privatized eventually it's the responsibility of the state
to make sure that the segments are not distributed in seven states that it's the responsibility of the state
to minimize any barriers on behalf of the week population to access most product services facilities so
basically to get to those get equal access those services all cases
Okay, great. So all of you are together you know, ready ready to be lawyers to be good and you chose to
pick up the right arguments and I think the interesting part here is yes, I think we have people on Zoom
when they try to speak we cannot hear that the sound is very slow it's the sum of the maximum that you
can't hear them here in the classroom. But they can hear you they can hear me yes we can get I can
barely hear them the sound is not
week's topic you noticed
Hi Have you tried to speak now?
Hello.
It's working very much. Thank you. Thanks. Thank you. Thank you so much. Wonderful. Okay. So now I
read something and do it So, okay, let's just let's just hear now. From the yes, yeah, I'm just reading
here. What's sleep good to everyone? The state's policy President mentioned recognize the relevant
point to an adequate standard of living for himself and standard, including adequate food, clothing and
housing and continuous improvement of living conditions. Okay, there is all of that. What about the
general comments, right? The general common paragraphs, the general comment number three,
paragraphs nine and 10. If those of you who aren't zoom, want to look at those? And the each of us
what interesting things they may say. You can do this while I continue speaking here. So there's there's a
few things that seem to be relevant, the idea of maybe non discrimination, the idea of participation. And
211
the idea what's interesting here is the idea that these, these guiding principles, try to take into account
the concerns that human rights are sometimes difficult to put into the boxes or the rationales of
policymaking. And one of the advantages, that is something that is sometimes criticized, but it seems as
an advantage. And it's promoted by like human rights lawyers is to say, look, human rights is not against
privatization. Right? Human rights can take into account a private health service and privatization of
electricity or a public one. That's why universal human rights are done on the universal but they're also
flexible and adaptable. What they're putting together is a set of guidelines, minimum guidelines on if
you to leave some some policy space to the state to decide it's not telling the state what it needs to do.
Right? Just remember, like Amartya Sen didn't tell what, what kind of approach of development you
should do. And some people on the on the left that actually criticize that, and they would criticize
human rights for saying, Well, you're not you're really accommodating of trying to, you know,
privatization in Nigeria, for example. But the answer by some human rights lawyers saying, Well, you
know, human rights are there to sort of, you know, shape any form of policy and progressively bring it to
certain minimum standards, whether the standards are minimum enough or not, is a political question,
ideological question. Some people would agree or disagree. But there is a certain number of things that
anyone have a chance on Zoom to look at the general comments. No, come on, come with three of the
icescr. Okay, we don't have the time. But one of the things that is actually included also in the guiding
principles, one of the doc trains of international lawyers looking at this idea, remember, economic,
social and cultural rights. The general idea in the icescr, in its in domestic constitutions, is the idea of
progressively realizing your obligations to club housing, food education, according to your maximum
available resources, okay. And over the years, these experts is treaty monitoring bodies have tried to
refine and define what was meant by this progressive realisation according to maximum available
resources. It's a mouthful, and it's not clear what state's obligations, what states have to do. So what the
guiding principles here are doing is trying to say, okay, states have to do things in a way that makes sure
that the most vulnerable are not affected. So this needs to be focused on the vulnerable. And that is
partly related to doctrine. The tribal idea, which we will look at, actually, tomorrow to the notion of a
minimum corps
to respond to the idea that, well, if you tell states that they have to progressively realize economic and
social rights, according to the maximum of available resources, they'll always say, we're not rich enough,
we don't have enough money, especially low income country. So the idea by some lawyers was to say,
Okay, we'll give you some time, we will measure to all of these monitoring nudging processes, but
there's a minimum core, there's a, there's a bottom here that you can't go under. And that's really a
minimum core. And that the triangle argument has been developed by the committee for economic,
social and cultural rights. It's in some of the general comments. And it's contentious. A lot of progressive
people have suggested that if you tell states you can you have what you have to focus as on a minimum
core, then the rest is going to be left for never. Okay, so you're basically reducing the ambition. And that
is, you know, in a nutshell, what some Well, mine and Obi Wan, quite famous prominent human rights
professor in the US. He's at Yale now wrote in his book in 2000, he calls not enough human rights. And
then the subtitle is human rights in the 21st century. And it's sort of a play on workers, it means not
enough human rights in the 21st century, it basically saying that all the work of the UN treaty monitoring
bodies and UN, you know, the legal scholars who have been working, has been promoting an approach
212
that essentially promotes this minimum, for his minimum, what he calls a sufficiency approach to human
rights to economic, social and cultural rights. The idea that, you know, we need to make sure that
people have a sufficient floor on which to sleep and that sense, rather than a much more expansive
interpretation, if you look at the even the letter of the law, which could be much more about some form
of, of what he calls, you know, substantive equality, sufficiency versus equality since idea, there's just
one second. Another important thing that relates to to the general comment here, and which is in the
guiding principle is another doctrinal idea which you can find in the general comment, general common
explains the very small paragraphs, which are in the covenants, it talks about the doctrine of non
retrogression, you must have seen that or maybe went quickly, that the idea of non retrogression is that
if you've made some progressive realisation of your obligation to realize the rights according to your
maximum available resources, you can suddenly retract, if you finally, you know, designed a housing
policy or make sure that there's non discrimination in the delivery of health or that you've actually
promoted a new educational system that gives more people more access. The idea is to say, Well,
normally you can't really pull back, the States obviously would say, Well, you know, we there's a new
government that the government wants to take away from schools and put it in somewhere else. So
there's enough policy space in what this guiding principles try to do is to, to interpret what's in the
general comment is to say, the burden of the proof is on the space to show that if it's retracting from
what it's done, it's done it because it had no other choice. It didn't consider all the other choices, which
would have made sure that the poor are actually, you know, taking care of okay. And that's really the
idea. The idea is to say, you really the principle is non retrogression if you do a retrogression, you have
to justify that. And that, you know, it's something that a lot of human rights, people are, are advocating,
they're saying, you know, human rights is about opening forms of engagement and debates, which
might not be there, if you if it wasn't for that, otherwise, the states can just say, Okay, we go back, we
privatize, and we, we raise our electricity prices by 100%. The idea here is to say, Hold on, you're not
supposed to do that, if you do this, you have to justify, and maybe you have to justify publicly, and you
open up what's called a deliberative space in which these issues and the alternatives are discussing
participation. That's key, the idea here is this. There's been no, you know, no consultation whatsoever.
Okay. And this, again, is something that is that is pushed very often, by people trying to sort of design
rights based approaches by saying, you know, you have to at least give a minimum level of consultation
because that might, you know, change a little bit the balance. Okay, so all these arguments, sharp as you
actually sharpen them were put into the letter and was sent to the Nigerian government, the Nigerian
government didn't respond the first time, it was further engagements. And then what do you think the
Nigerian government eventually ended? ended up saying? Sorry, yeah, you wanted to ask about?
It's a good question. I think from his perspective, the guiding principles are typical of what he I think he
dismisses, he suggests that all the work of these UN Special Rapporteur on the doctrinal work has been
too accommodating. And he would include probably this, they say, you know, the only thing you're
doing is sort of, you know, put the burden of proof on the state to show that there was no alternatives.
But, you know, essentially, you're opening up some form of flexibility about privatization. I think this text
in particular will not be the worst thing for someone because it does try to read really between the lines
and the fine line. And then notation that met to lead today is I remember Magdalena Sepulveda was
saying, you know, I want this to be adopted. So I don't want to put something that is too progressive
213
because otherwise states are going to say, but but do it into your question what our state's going to say
what is the state like Nigeria going to stay with states? Yes. Okay, that's when it first did. But if it wasn't
going to ignore it, what would it say?
Flexibility.
But so in this case, you know, what's really interesting is to think about all the long story that which I
told you about, right structural adjustments conditionalities. The broader global economic context, you
know, if Nigeria, decided to privatize electricity, it's not just that the Government of Nigeria wanted to
do it. Okay. It's also because of pressure from international financial institutions to do the same thing is
in the Zachary case, you have to privatize some utilities in order to raise tariffs in order to reimburse
your debts. Right. So there's a whole global financial economic context, which is sometimes a good
excuse for governments to say, well, it's that we can't really do that. And if we were doing retrogression,
it's because it's imposed on us. But sometimes it appears to be evety. Right. And in this case, it actually
was, it was a push by the IMF and the World Bank to actually reimburse some some levels of very high
levels of debts from the Nigerian perspective of the economy. So the idea here is to say, You did really
well and say, you know, it's the burden on the state the burden on the state of burden the state, but in
some of these very poor countries, the state is sometimes ideologically decides to do it. But sometimes
it's really in a in a tough place. Because we're going to see next right because of the World Bank,
because I met so sometimes it's really a mix of both. It's not as you know, it's not like it's always the devil
is up there. And then the Nigerian government is innocent. And really the the fine line is to try to try to
find some level in which, you know, states are pushed to justify things, but with the idea at the same
time, and that maybe is a critique of, you know, how far does this go because the focus here is on the
state's obligation. And sometimes the state is not the only actor, especially when we're talking about
electricity in Nigeria, for example. Okay. Another thing that is potentially good and potentially a critique,
and that relates to rights based approaches, in general, is that there's a lot of push for process
participation, participation, participation, participation. Okay. And then the answer very often by status
thing, okay, next time, we'll, we'll do a consultation. Okay, we'll invite a few civil society, we'll give them
coffee. And we'll ask them to sign on. Right. Okay. And so this year is a critique actually, that wasn't the
reading for yesterday of rights based approaches that sometimes it's a lot of, sometimes it's something
about policy space about sort of shifting the burden of states to justify, which I think is interesting. But
very often, it is pushing states to basically make sure that you're not doing really egregious harm, and
especially that they promote some form of participatory process and some non discrimination, but non
discrimination, not on grounds of poverty. And there's a distinction here between consultation, which
can be just consultation, and more politicized form of participation. And that's why I wanted to make
the link here with the Zachary story, because accurate story was one in which the participation is pushed
from the bottom right. There's a claim that comes from the ground as a civil society push, there's so
many social movement as a lawsuit. And that sort of opens the door in a way that can maybe tell us a
little bit the balance of power, in the consultation room in which the people, you know, come from the
214
street, and they sit with the Minister of Finance and the World Bank, and they try to just decide, you
know, how is it as the health system and the finance. So there's some literature if you're interested, that
really sort of talks about the different forms of participation, because participation in general is, you
know, sometimes you have, you know, entire semesters about how great participation is, but
participation means, you know, power and the power dynamics in the room, and depending on the
stakeholders are, is not very rarely equal, right? Even if you do a small workshop and community there's
going to be more powerful voices. Here in this classroom. There are more powerful voices and others
always. So more politicized form of participation is what some people call to the real rights based
approach is one that really brings the idea of power dynamic mobilization and sort of politicize forms of
participation rather than just like, let's just ask these groups and debriefing and say, It's not good for us,
and we're going to tell them, Okay, we're going to maybe do it differently next time. Okay, I'm
exaggerating here a little bit push my point. But I think it's an important one.
And then finally, you know, what's the added value of this, perhaps the added value is that it does mean
that the government has to sort of figure out a justification for this. But the bottom line is, in a way, it's
very flexible and gives the government a lot of options, which is in a good thing. But in a more sort of
political perspective, is this going to stop the government of Nigeria from privatizing its electricity? No, it
might make it think to do it differently next time. So you know, it depends if you see the glass half full, or
the glass half empty. And I've had many debates about this with my colleagues. But I think you know, to
answer your question, this is not the worst example because it really tries to get at the idea of, you
know, my dilemma. And I remember was saying, you really need to progressively convince states that
they have to do things differently. Yes.
Everyone to the economic pressures?
Oh, absolutely, absolutely. That's why, you know, some some more more more critical, radical voices
who say, we're not engaging with these kinds of rights based approaches, we're doing different forms of
rights based approaches, which are also rights based, because you use the language or the power of
human rights to mobilize people tend to push push things in a more political way. But I wouldn't
completely dismiss this, you know, it's has a lot of flaws. It has a lot of, you know, loopholes and limits,
but it is, you know, it is, it is there. And some people are actually trying to use it to slowly progressively
change things. This has been used a lot in Europe, during the last decade, when there were stereotype
measures imposed by the European Union, Spain, or Greece, or many other countries. And the idea,
there was a lot of pushback saying you are actually the non retrogression idea is completely being
violated. Look at this, actually, in the reading that you have for tomorrow, by my colleague, Catherine
215
Young is quite explicit, and it develops, please look at it as it develops the idea of his doctrinal ideas that
I just introduced today.
Okay, so. So there you go, the
minimum core obligation, you can see it here, thank you very much to those of you to know and see.
both P and J. Okay, so what we're going to do now, that we might need to continue a little bit tomorrow
is
to talk about the world that so this is also an attempt to sort of now make a bit more concrete. So we
had the session with our permission will to give you a sense of how corporations, some corporations try
to infuse human rights and the way they they do business. And we'll get back to this actually next week.
But one of the, you know, key agents to look at when we're thinking about the links between human
rights and equality development. And poverty is of course, the World Bank. The World Bank is still today
the major international financial institution dealing directly with development. Some of you may, you
may new may know that there are new new banks, New Kids on the Block, as you would say, in the US.
They there is the what's called the Asian Infrastructure Investment type launched largely by China,
which is, you know, a new bank that there is about half the capital of what the World Bank has. And
there's also the what's called the MTB, the New Development Bank, which is a bank founded by what's
called the BRICS, Brazil, Russia, India, China, South Africa, the emerging economy. So, different forms of
developments, investment banks, they're also regional banks. But the World Bank remains today still in
terms of you know, the capital and the leverage it has on development policies, but also in development
projects into the private and vestment really the key actor, and what I'm going to do is to give you an
account of what happens and what is happening now the level of the world, because I think it's an
interesting case study of, of how tricky again, it is to
infuse
the principles of human rights in policymaking circles related to development, right. And I told you
basically, when I told you in the classes that for a long time, economists and development, policymakers
have been pushing human rights aside for later, not wanting to integrate them because they were too
216
political or that they were not operational, they don't fit in the way you think about development
projects, policy. And the World Bank has been a really interesting points of engagement, both within the
bank, outside of the bank, below the bank, pretty much everywhere, people have tried to either infuse
human rights in the way the World Bank does its business, or to resist it, right to resist the idea of
human rights. Okay, so I'm going to give you basically, I'm going to start with a within the fit of a
narrative, we're going to look at the what's called the Articles of Agreement, which is sort of the mini
constitution of the world back. And then we're gonna go through Roberta Daniels legal opinion, which I
asked you to read for today, which is an important moments of engagement of human rights arguments
within the back, and then I'll tell you about these ongoing initiatives. So as a brief reminder, the World
Bank and the IMF were set up in 1944, with the idea that, you know, on the one hand, everything
relating to social labor, or even human rights issues will be dealt with by two international organization.
This is after World War Two, which are the UN and the continuing existence of the international labor
organizations, whereas everything economic would be dealt by the two new institutions, which were
created in 1944. And which sit in Washington, DC, the IMF, International Monetary Fund, which deals
essentially with macroeconomic stability, by, you know, giving advice or pushing monetary policy or
providing sort of macro economic assistance, loans, bailouts, essentially, for macroeconomic stability.
You all know, I think that the IMF, and the World Bank, which was really meant to be the Development
Bank, basically, providing financing for development projects. And through that history, we saw that at
the beginning, it was to modernize through export led economic growth, building dams or building
extraction facilities for extracting natural resources, then it was providing, again, financing to help for
what was called isI import substitution industrialization. And then in the 1980s, and 90s, a much, much
bigger role jointly with the IMF and completely leveraging what's called economic conditionality saying,
you know, if you want the help from both the World Bank and the IMF, technical assistance loans, in
particular, and to help you sort of deal with your with your debts, what you have to do is going to
completely restructure the economy. So it's not just you know, financings big projects. It's about looking
at restructuring the economy that was called structural adjustment. And this is a moment in which the
bank really took a step forward. And as I said, with regards to our now well known trade offs, the World
Bank had very little things to say about the Liberty trade offs and never asked, essentially, countries to
really show that they were respecting civil and political rights. At most in the 1980s. They started to ask
Latin American countries to hold elections, sometimes that's sort of as far as it went. And with regards
to the needs, inequality trade offs, the idea of you know, whether you stay should sort of try, for
example, to install a welfare state to respect their obligations across economic, social and cultural rights.
You know, the answer, definitely the answer was no, no, no, no, no, no. What you need to do is to
privatize to deregulate fiscal austerity. And since then, in the post Washington Consensus, you see that
there has been an evolution I gave you some studies last weak about how the IMF itself and the bank
have shown that, you know, inequality is actually not always good for growth on the country, it's can be
bad for growth, and it can be bad for the ability to produce poverty. And this meant there's much more
nuanced kinds of policies at the level of the World Bank. But now, in terms of
the early moments
217
in which, you know, some people outside some, you know, people at Amnesty Human Rights Watch, not
so much because they were really not too concerned with with trying to reach out to the development
world, when some people started to say, Hey, hold on a minute, the World Bank actually even when it's
constructing big dams, and it's financing things in the 70s and 80s. It's investing in Indonesia and
countries like South Africa. Maybe there's a problem here with regards to the fact that the World Bank
doesn't seem to be asking anything of the country, it lends to or directly assists in terms of their human
rights, cause. Okay. So the answer by what's called the general counsel's of the World Bank, the General
Counsel is the big boy of the World Bank basically, is the following. Okay, this the Articles of Agreement,
the Articles of Agreement, basically suggests that the World Bank is a bank that gets its capital from
states, especially large stakeholders, historically, the US and then also countries by Western European
countries, but also increasingly China, Saudi Saudi Arabia. And it's meant to assist the reconstruction
development with territories to promote private foreign investments to promote long range balance,
growth and international trade to conduct this operation with due regards to the effect of international
investment and business conditions. So the language here is very much one about sort of a conduit for
economic growth, through helping countries open up to trade, attract foreign direct investments that
have classical texts. What's important here are these two articles, right Article Three, Section five, the
use of loans guaranteed participated in or made by the bank, the bank shall make arrangements to
ensure that the proceeds of any loan are used only for the purposes for which the loan was grabbed,
with you attention to consideration of I should have put this in red economy and efficiency without
regard to political or other non economic influences or considerations. Okay, Article four, section 10.
The title is quite adequate political activity, probably benefit the bank and its officers shall not interfere
in the political affairs of any member nor shall they be influencing their decisions that have political
character that member or members can serve, only economic considerations shall be relevant to their
decisions and consideration shall be weighed impartially in order to keep the purpose
of Article One, okay, so what happened in the 1990s? Is that reality sort of caught up with a World Bank,
there were some people saying, Hold on, you are investing billions and increasing the amount of
financing going through the bank has been increasing increasing over the years, especially over the last
two decades, through what's called the private arm lending facility of the World Bank, the International
Financial Corporation of IFC, which is a facility for the World Bank to investor co invest in private sector
projects. So very often a project that well bank says I'm going to put a bit of money or a large chunk of
money to you know, bring my sort of credibility to a project and climate inside investors will join us and
with this will invent in a mining projects, or you know, a lot of extractive natural resources projects, for
example, there's also an agency called mega IgA, which provides insurance guarantees from the World
Bank to climate projects. So my point is, the amount of money that is going in developing countries
through the World Bank compared to the 1970s and 80s to more recently is really, really increased
largely especially through these private investment channels at the World Bank, but in the 1990s. It was
starting to be the case but there was a realization and treasurer from civil society group saying Hold on
the world and you are sending large sums of money and You're essentially, you know, in a way
supporting economically very repressive regimes. Right, South Africa with apartheid, South Africa,
218
Indonesia, Suharto, very authoritarian regimes. And the answer from the World Bank was, we're back.
And we have, especially these articles of agreement, which basically asks us to keep, you know, like a
horse, you know, like a blind eye, to whatever is happening around us. Remember, the story of coffee
analogy, when I told you, he was really upset about the fact that sensitive people that doing
development even were like this, too. And he changed? Yes, or the bank was very different. To say, you
know, this is we are, you know, financial institution. And this is, you know, the kind of arguments are
interesting, because we'll revisit some of this when we talk about business. Many of the arguments
would be we're a financial institution, and this is not our role. But increasingly, there was pressure and
pressure from civil society groups, including a number of organizations in the US, but also, especially
with the rest of startup. So what happened is that the general counsel of the World Bank in 1990, issued
what's called a legal opinion, your opinion, it's a bit like an interpretation of this, and reaffirm that the
bank was the lender, and the bank was supporting and keep supporting, the borrower's are the
beneficiary of its help to realize their own obligations, right. They are obliged by international human
rights, the state responsibility, the state responsibility, so basically saying there's no any not any form of
obligation for us to do this that we're helping. We're doing, we're helping the realization of housing,
electricity, food, etc. And with regards there's no mention at all civil and political rights, but for the first
time there is the notion of good governance. So he, Brian, she had those Nike Nike issues, his legal
opinion, that was the first time that something like didn't include civil and political rights tried to
rationale the fact that the bank was helping states realize their economic, social and cultural rights or
the remember that there's a difference between helping states realize sort of numbers in terms of
indications or housing in terms of, you know, outputs and the notion of provides, which involves a claim
for accountability, the progressive realisation, which is not exactly the same thing, but the rationale was
that we're helping the state's doing, realize progressively their applications and we agree that we should
focus on some form of good governance, but it didn't really specify what it is, remain very vague.
What happened then,
is this is where our friend Amartya Sen is important, saying, I happen to be a very good friend, like a
personal friend of James Wolfensohn. James Wolfensohn was appointed in 2000, to be the president
the world back by the Clinton administration. And he was actually very sensitive, you know, was quite
sensitive to set ideas. And it was also the moment in which remember, the UNDP report came out in
2001, saying that human rights are not luxuries that they should be used. And what he did was to really
try to infuse human rights within the world back. Okay. He came out first, he pushed for what's called a
comprehensive development framework. That's 1999, which was an idea of thinking about development
in more holistic terms, right, this should ring a bell with Amartya Sen xiety, right, develop and not just as
growth, but something that is more comprehensive. He also instituted the idea of development with a
human face and finally, instituted what is still existing today, which are called Poverty Reduction
Strategy papers. P RSP. Is Poverty Reduction Strategy papers is the idea that rather than the bank
imposing poverty reduction strategies on developing countries, developing countries themselves, this is
219
the notion of participation. But you know, these are the states and the World Bank states themselves in
consultation with civil society should design a Poverty Reduction Strategy papers, and there will be an
exchange with the World Bank on what that strategy would be, especially those countries, which are
very much directly in line financially with the World Bank and the IMF. So those actually
still exist.
But what happened is that he then tried to essentially go to the to the World Bank, what's called the
Board of Directors of the World Bank, and Say, Okay, we need to actually change our articles of
agreement, or we need to change our interpretations to include the idea that we should take into
account political considerations or some form of political considerations. Okay. That was resisted
completely by the Board of Directors of the World Bank, and it was actually kind of a battleship. So it
didn't happen, there was resistance. So James Wolfensohn didn't actually completely abandoned the
idea. He appointed someone from the outside a South African managing director to actually try to try to
centralize frontal attack, let's go to the board of directors and change this, or change, the interpretation
of this didn't work. So then he tried to appoint someone from the outside, who tried to go to different
sort of decentralized, you know, offices of the World Bank to try to get, you know, build a consensus,
that actually also also failed. And then he eventually appointed, that was sort of, you know, his sort of
last move to try to appoint a general counsel at the World Bank, so the lawyer of the World Bank, and to
try to essentially push him to interpret these articles and agreements differently. Okay. So the Roberta
Nino had been championing the idea of trying to sort of raise human rights issue within the legal
department back in 2003. Okay. What he did is to first of all create links will be taught HCH rd, which
CFR is the Office for the High Commission of Human Rights, which coordinates all of UN human rights
activities. And, you know, wrote a few papers, trying to say, you know, the World Bank maybe should do
a bit more than just saying that it's helping countries realize their obligations and good governance, etc.
And as he was about to get fired, okay, a new president comes into the world, the World Bank, Paul,
both of its small, both of us have been Secretary of Defense, George Bush. And as you may know, in the
World Bank President the deal since World War Two, that the American the World Bank President is
American, as a lot of people have said about this and that the IMF president is European. Right, there's,
again, a lot of push for change. But So traditionally, so far, it's been an American, because of the of
course, the size of the Sherman shareholding portfolio, the US in the Capital of the World Bank. So Paul
Wolfowitz, a new conservative that is appointed and just before that Nino's who's on the other side
politically note is going to be fired he does what's been described in literature as this is all relative but he
dropped the bomb in the in the World Bank world it's seen as dropping a bomb basically sends out to
internal mail a legal opinions that he drafted himself and that had not been actually normally did the
board of directors, the executive director of the bank representing the major states asks the lawyer to
issue an interpretation and in this case, the lawyer himself knowing he was going to get fired decided to
sort of come up with a with a legal opinion so what is the legal opinion say why am I saying that it's
talked upon
220
yes
it's okay
for you like to see what happened especially when there wasn't pro rights aspect it was more like fights
against Sure. I think they just focus on that. I think it went up there and the fact that it's The only news
after midnight. And they did. I think just now.
So that's true for the US administration. And that's precisely what's a Paul Wolfowitz was completely
representative of the war on terror. And so he knew that if someone like this was coming to the power
of the world back, and he knew he was going to be fired by this person, you know, definitely there was
no no intention of promoting human rights by someone like cobalt or cobalt. But this didn't last very
long lasted only two years at the World Bank. But so what Danielle did it has legal opinion, is to go
against that right. And to really try to translate what James Wolfensohn had been trying to do for quite a
number of years, which is to really promote the idea that the human rights that's the world that cannot
comply with human rights. Okay. Does anyone remember what what parts that were?
The best piece of advice has changed. Since the fact that you went out that first issue of disappearance
in inside politics, yes. Now, since since the ship, to ship the World Bank has to hold back ship, and it
hasn't gone. So fast to come? Absolutely great.
So that's one of the things he says is to say no, he looks, looks at the articles of agreement says is true
that the articles agreement if you look at them, and interpret them very narrowly, there's no there's
nothing the bank should actually do doing. And then he goes on by giving a sort of really doctrinal
interpretation, quite progressive interpretation of international laws. And, you know, there has been a
move, since those were written international human rights law has, you know, we saw all these treaties.
And there's this idea, remember, the idea of human rights was precisely to pierce the veil of sovereignty,
and talks about when we talked about two weeks ago, right, there might be arguments of between the
221
lines is also saying doesn't go as far never go this far, careful, is a lawyer as saying that the World Bank
itself has legally binding obligations, but he told us talks about the idea, remember, this idea of
customary international law, and the idea that the UDHR, the Universal Declaration of Human Rights is
according to some human rights scholars, parts of it or or all of it is related or can be qualified as
customary international law. And I told you, you will see this is important because there are arguments
now such as that, not just states, but other actors might be legally obliged by by the Universal
Declaration of Human Rights. And there's been arguments that international financial institutions
including the World Bank, Margot Solomon, famously at the LSE will talk about it. And also the other
category of actresses will see its businesses Yes. It is interesting. And so, absolutely. And so we'll look at
this next week. And you know, one argument is to say, You know what, some, some actors are just doing
it by themselves. Some lawyers already saying, you know, what, what some private actors are doing is
precisely customary international law, right? They're behaving in a way and they're behaving in a way
with the consciousness that they have to right. That's the idea of customary international law, your
video, tourists, you doing something? Are you doing something because you believe it's mandatory for
you to do it? And there might be people sort of suggesting that in the context of, you know, private
companies getting out of a fracture, there is something we did that I think it's also maybe despite the
sanctions, maybe more more than the idea that there that it doesn't matter. Sure, sure. I think you're
right. But to go back to come back to the world back. So then, you know, tries to sort of essentially say,
you know, we can't be completely like we're not legally bound. There's no legal obligations, but we have
we have to completely die. And then he goes further by saying to users remember this. I know I gave
you a lot of things to consider last week. But remember when we talked about the Liberty trade offs, I
told you the Liberty trade have promoted by ideas, such as Huntington's and by state suggesting that if
you repress civil and political rights, you have faster rates of growth, I told you, there's a couple of
people who have been trying to show that if you have more voice, you have better growth. That's Danny
Kaufman, Robert Barrow at Harvard.
All of those
are quoted in his legal opinion, if you look at the footnotes, he talks about empirical studies showing
that actually the realization of some form of good governance that goes further than good governance,
but it includes civil and political rights might be empirically something that is good. And in doing this is
smart is talking, you know, talking to economists. So rather than talking like sensing, you know, the
realization of civil and political rights is also part of the genuine vision of what development is
conceptually saying no, empirically, this idea of trade off the Huntington kind of idea is disputed today,
just like there is a rise of international human rights, but there's a dispute. So people tell you that if our
goal is really to promote growth, and maybe this is a good way to promote growth, to actually focus and
leverage, leverage the financial muscle at the World Bank to actually push states to not repress
anymore, because it might be bad for growth. Okay, so all of these arguments are in his legal opinion
directly. And then he goes even further, if I remember correctly, to say, the following, I'm going to read a
222
few things. He says, Well, it's common practice in the private sector, to actually consider what's called
Human Rights risks. Right? There's a whole approach to convincing businesses to actually include human
rights consideration in the way they do business where they look at investment, which is a risk
management strategy. That's how private the private sector works, and said, well, the back, we're back,
we're going to use this and he started, and this is, you know, more than 10 years ago, it says, the private
sector, and it's true has been started to do risk management analysis in terms of human rights, you
know, risks to their investments, so we should do the same. And he goes on to say, empirically, actually
doing this might actually keep focus on human rights, and finally promote civil and political rights, it
might actually help bro. And then he goes on further to say, to interpret these articles of agreement on
the political interference stays, the limitations from the articles of agreement to remain politically
neutral to keep the blind eyes do not this is his interpretation, do not prevent the bank from considering
non economic issues, including human rights. Therefore, taking into account where imperfect human
rights issues and members international diversification does not contribute articles prohibition and
political interference. He then talks about sovereignty. And then he finishes by saying the Articles of
Agreement permits. And the important part is when he says, and in some cases require, require the
bank to recognize the Human Rights adventures, and its development policies and activities, since it is
now evident that human rights are an interesting part of the of the bank's mission. So basically, say the
World Bank is not only here to support the country to popular real human rights obligations, they
should, the bank itself should take into account the rights. Okay. So, you might say, and the question is,
okay, but there's still this notion of Remember, an economic impact the idea that it should eat into some
form of economic impact. And he goes, as far as saying that the World Bank can and should take human
rights consideration, even when there is no link at all, no link at all, to economic considerations. He says,
yes. can do this, they were meant to do this when he talks about cases and when he calls extensive
violations of pervasive proportions, he's thinking about Rwanda, okay. He was interviewed later on, that
the war that was going around the lakes of Central Africa at that time. So the idea is to say, you know,
the, the World Bank can and should interpret this to say that it should take human rights into
consideration and can even take Human rights into consideration when there's no link to economic
impact at all. So even if it's not proven empirically to, to help things out, when there are massive,
massive human rights violations, okay. So this is a very interesting legal interpretation of the water.
So what happened? Yes? takes our guys, so efficient, but just the local differences. It's like, it's nothing
outside of
it so that's a really good point, actually, we'll see in what happens in the story. And one point, I forgot to
mention, you know, one part of the story that we have to stop now, but I will mention this yearning for
more detail in 1993. We mentioned it a few weeks. Last week, there was an important moment, this is
not directly related to human rights. But there was a big movement against the building of a huge dam
in India in the normal Narmada Valley in India. And there was a big movement by environmental social
movements to suggest that the financing of this dam by the World Bank had been not consultative and
223
completely with this regards to environmental rights of communities. And that relates to an
accountability mechanism within the bank, which is called the World Bank inspection panel. Okay, we'll
reform actually quite recently. And it was a way for communities or stakeholders to be able to look at
the bank, whether it actually has followed its guidelines, its own guidelines, including the articles of
agreements. And as we'll see tomorrow, new guidelines that it hasn't human rights. So after that, a
number of NGOs tried to sort of push at the level of the infection panel and try to push the world back
into saying to states, you have to consider human rights, because actually, you're harming your people.
And it's not good in any case, for your, for your, for your economic growth. And the answer for some
states, famously, there was an advocacy campaign against a big pipeline between the child country and
Cameroon, financed by the World Bank by the IFC, which the private financial arm of the World Bank,
and the World Bank managed to be convinced by Human Rights Watch and a number of actors to
basically put pressure on the government to say stop, you know, basically, you know, repressing your
people and ask for some form of mobile consultation and the sharing of the Prophet. And the answer
was, if I understand you correctly, was complete backlash. huge backlash. Who are you your colonizers,
you're responding to human rights, watch your Neo colonial West, you know, you're the World Bank,
you're not, you know, western bank. Huge political backlash, and the authoritarian government of China
was completely able to leverage this against the World Bank, it completely failed, and it meant for that
for good 10 years. The World Bank didn't want to hear any more about trying to use the World Bank
inspection timeout for human rights state, he refused talking to Human Rights Watch for a good 10
years until a new advocacy campaign in Ethiopia. He doesn't attack. I think class is over. We have to we
will carry on a bit with that tomorrow. Please do the readings for tomorrow will, especially Catherine
Young's case, we'll have a discussion about whitespace approaches to COVID and post COVID and
bubble we'll begin by finishing this brief.
Class 10
So. Okay, good afternoon, everyone. So what I'd like to do today is first to to finish, if I may say so
the story about human rights at the World Bank, it's, there's a bit more to say about this. I want to give
you a few facts and also some standards which are available, if ever you're actually in your own studies
or practice confronted to, to try to sort of sort out what the national financial institution in the World
Bank has, in terms of its own voluntary obligation design. And it's an interesting way to think about this
in comparison with of course what some businesses have done it because they told you yesterday one
of the key arguments about the bank is really that the bank is here to support As a lender, the
borrower's to actually realize their own between the lines they need. They're the only ones who have
human rights obligations. But that the bank is a bank, even if it's an international financial institution, a
224
publicly funded function understands itself as a fact. So I told you about this moment, it's really this
attempt by the General Counsel of the World Bank to really shake things up by suggesting that the
interpretation that the articles of agreement at the World Bank could be interpreted to suggest that
human rights had to be taken into consideration in going as far as saying that even when there was
absolutely no economic situation, human rights can and should be taken into account when deciding the
financing of a project. And he was thinking, as I said, here to the massive human rights violation. So as I
said, there was a didn't go anywhere, there was a actually quite a backlash, the Board of Directors of the
World Bank, consider that it had actually not asked for this legal opinion. And it was the only evening of
the legal counsels own initiative. He was swiftly replaced after he resigned by Anna Palazzo, who is
Spain's former foreign minister of Spain. Party, as you know, as a reward for Spain, having joined the
war on terror at the time, the American worker at the time, and, you know, it went back in a quite
spectacular way, in terms of Allah badass, you know, authoring one of the rare. This is a publication by a
un by World Bank official about human rights, basically, going back on all this going back to the 1998
version, in which the World Bank sort of, you know, justifies and when it's all what it's doing is actually
to help states realize their economic and social and cultural rights, and it has essentially no obligation
whatsoever. The legal opinion is not even mentioned, what was actually really interesting, some of my
students in the past tried to look at this is that the legal opinion was actually available on the World
Bank website for a while, and then it disappeared. There was an FAQ also that the World Bank, at one
point, tried to have an intimate website, which sort of made an indirect reference to it that also, you
know, left the website, the website of the World Bank. And after another last year, it was a French
public lawyer who actually replaced and Marie Laveau, who replaced an APA last year, and she signed a
few more papers and publications, essentially going going driving even further than that definitely step
back and saying, you know, making really clear the case that the bank has absolutely no legal obligation
on its own, and that it should actually refrain from taking any form of human rights consideration to
some of the I'm not going to read you what she's saying. But maybe here that only your doctrine
suggests that the banks engagement with human rights should be just the Bible providing that an
economic rationale can be identified and political interference is avoided. She basically is, is rejecting
any form of human rights consideration. And again, it's a rhetorical position to say that all the bank is
doing is actually to help the borrowers realize that human rights obligations, I'm going a little bit fast
here, but I think you've got the essential idea in terms of thinking about why has there been a blockage.
There's a very good ethnographic sort of insider study that came out about 10 years ago, from someone
who worked within the legal department at the World Bank to try to sort of generate this push to have
the World Bank adopt more human rights,
approaches and its way of doing business. There were a number of difficulties. Some of them were
political, as she described, her name is Gary, Fatty, she's actually American and Israeli business
collecting. So there's legal reasons were sort of, you know, some lawyers suggesting that you needed to
have a very narrow legal interpretation of the article agreements in order to keep some form of
credibility. Political, which was the composition of the board's executive board at the World Bank in
some countries, like Saudi Arabia, for example, or like China was a word, of course completely against it.
And this is why James Wolfensohn had tried different kinds of approaches to to avoid this. But there's
also an argument by also by someone called David Kinley is a professor Sydney wrote extensively about
225
the World Bank about sort of more bureaucratic cultures that we're in Opposition. So, you know, some
lawyers, including people like Daniel and his team, some people who were in this team are still there in
the world back, I know some of them really tried to put forward to the legal interpretation and a clash.
And very often as in the organization, there are turf wars, you know, is the legal department going to get
more clout than other departments, etc, but essentially a clash of perspective, between a few lawyers
and they're more lawyers, now, the World Bank, but there used to be not that many and, you know,
economists who didn't, you know, want to think that really this way, and still had reluctance in our pudo
notion of trade offs with the idea that human rights are something that are, you know, not to be taken
into account, because they're too complicated. They're not operational. They don't take cost
effectiveness, or financing reasoning. In in, in their arms, and human rights are almost too too
demanding. They're too normal, if you want, okay, so one approach, which was suggested was to try to
do something else. Rather than pushing for legal strategy or legal interpretation. What you do is to, to,
quote, get into Apache to build norms for economists, to try to sort of get economists in the sort of
human rights framework is the same reasoning for businesses. Now, there's a business case for us,
which is to say, you know, if you integrate human rights and your sort of risk assessments, management
reasoning, it might be actually good for business, to think about human rights. And we'll talk about in
the case of business, there's many different arguments, which are famous, what's called a social licence
to operate, or the, you know, the kind of image of course that you have with regards to the World Bank,
it was more about convincing economists and policymakers that if you infuse human rights, human
rights are not just abstract and rigid and immediate. Human rights have the capacity to integrate notions
of cost benefit analysis, trade offs between different rights prioritizing, and it's been a way to sort of try
to push all the work that the triangle worked at the UN Special Rapporteur, the committee's treaty
monitoring bodies have been doing to show that, you know, there is some leeway, especially with
regards to how you interpret the notion of progressive really realizing economic, social, cultural rights
obligation. But even with civil political rights, there was a bit of leeway. And one way of sort of building
norms for economists was also to use a language that policymakers would understand. So one big push
was to build human rights indicators, right, the World Bank loves indicators, policymakers love
indicators, everyone seems to love indicators. So there was something that was called the Nordic Trust
Fund, it's now has a new name, which I forgot one or two that two years ago changes names, but it was
funded by Scandinavian countries essentially. And it was the Lord's have formed a team of bending have
tried to sort of come up with reports with buildings, indicators and try to sort of make make the push
but more economic sounding of policy and policymaking sounding language, so that it will be more sort
of palatable and work work with with which you will actually have an impact rather than trying to push
for different legal interpretation. Which mentioned yesterday.
Well, the Nino was the guy who tried to really push for legal interpretation. And while he was doing this,
he was using empirical evidence, again, was trying to talk to the college by saying, you know, there are
people out there like Robert Barro, Amartya Sen are the people who are saying that if you actually
suppress civil and political rights, it's going to be bad for growth. Right. So so this trend is sort of an
empirical argument. He cites the he's a lawyer than you nobody cites these argument just like Amartya
Sen and Donnelly in our reading cider galleys are fighting that in insider study. She's She's younger, she
is not the same kind of person, but she looked at what happened during the woman and she tells the
226
story of what I told you the Watson story The how they tried to do and failed. So she just gives an
ethnography to the inside of story of what happened and talks about how in the end, that strategy that
Danielle had, which was to both push legal interpretations and use empirical arguments. same time
didn't work. And then she was suggesting she didn't stay at the World Bank. Usually when you work
somewhere, and then you write about it, you know, they don't take you back. She wasn't that critical.
But still, she was saying the what's now seems to be the best thing to do is to avoid the legal strategy
and just continue doing these kinds of, you know, borrowing on borrow or other empirical elements to
try to show the bank that it has an interest for doing its business, to promote human rights indicators,
and also to show that human rights are more flexible and adaptable than they are. So that's that's a long
answer to your question. A few things happen, right? So that's the Nordic trust fund that the Nino's tea
but there were also others that the World Bank is huge, and they're different departments and different
people tried to do different things. And just like businesses progressively adopted some, you know,
labor, environmental, what's called now environmental and social goals. Yes, geez. The World Bank
itself, pushed sometimes by new moments of advocacy, I told you about the chat Cameroun pipeline
store yesterday was, which was a movement which created the backlash. 10 years later, Human Rights
Watch, went against to the World Bank, and did a report on asking the World Bank to stop directly
financing the government of Ethiopia, because of political repression, there was another moment of
engagement, which, you know, this time that the World Bank first didn't want to hear about it, and then
eventually, informally, you know, pressured and leveraged a little bit utopian government, following
that. So they were outside advocacy campaigns, but also people, just like in businesses inside the
banking sector, we need to step up, we need to, we need to do something there, the Sustainable
Development Goals, which are not just about growth, we need to incorporate many things. So one of
the things what was to design what's called performance standards. So performance standards,
especially at the level of the IFC International Financial Corporation, which is the private arm lending
operation of the World Bank, which has a huge, huge financial clout in many, many investment, private
investment projects, because they jointly invest very often. And those standards in 2006, interestingly,
didn't pretty much dimensioned any forums, and there was not any real significant reference to human
rights. They were following lots of activity, lots of you know, advocacy by human rights after they were
reviewed in 2012. And there was a bit more there, okay. But it's still you know,
you have different types of sub these are the performance standards, you can look at them, risk
management, labor, resource efficiency, community, biodiversity, indigenous people. So there is stuff
this is the IFC performance standards is one of the few places in which you find relatively elaborate, you
know, private norms that try to suggest that at least some forms of consultation or compensation
should be given, it's called fright, free prior and informed consent should be sort of given to indigenous
people in particular, when, for example, a mining project is planned in, in their territories of cultural
heritage. So the human rights is not directly present there. But there has been a bit of a bit of
improvement, although, of course, not everyone wouldn't necessarily agree to it. And then, at the level
of the World Bank, in general, there is now what you call the environmental and social standards, ESS,
the talks about environmental standards, but also some some labor and working conditions are there,
again, resource efficiency, community land acquisition, so they're quite similar, but here you have
indigenous people, peoples again, and cultural heritage. So you have, you know, similar kind of internal
227
almost kind of voluntary rules that the bank has progressively designed, but most human rights
advocate would say that it's really you know, shying away from really robustly integrating human rights.
So much so, that there has been a push and more recent push, quite recently, actually 2000 And so, in
2014, there was a UN Special Rapporteur on extreme poverty and human rights denounced the UN for
essentially being what we call the Human Rights free zone, and international financial institutions in
general in 2017, so what the UN Special Rapporteur do that is that they often ask civil society
organizations for contributions of arguments right, and I gave you to read for yesterday, what Human
Rights Watch did as a contribution one of the calls by the UN Special Rapporteur. So I'll just cite their,
their briefly their names or their mandates, because they're complicated names and mandates, oops.
Remember them, I don't want to get the wrong one. So Human Rights Watch created actually a position
2016 a new position to work, I remember when they recruited someone on international financial
institutions was completely new for Human Rights Watch, traditionally working mostly on Civil and
Political Rights a little bit on Economic, Social and Cultural but to focus on international financial
institution, that was a big thing. And Jessica Evans is the author of the open that also included reading
this in the New York Times. So 2017, you have a un Independent Expert on the promotion of a
democratic and equitable international order, right, that's a mouthful, submitted a questionnaire and
then you have the submission by Human Rights Watch this, essentially suggesting that the vast
environmental and social standards do not include any form of binding commitment to the protection of
human rights and criticizing along the way, you then have the UN Independent Expert on the promotion
of a democratic and equitable International. Did I already mentioned this, but it's the same, right? Yes,
excellent. Oh, there, sorry. There is. There's another one. In 2019, I'm very sorry. Yes, the UN
Independent Expert on foreign debt and human rights, who suggested in 2019, that all of the austerity
metrics that were imposed around the world and in particular, in Europe, by, you know, international
organizations and international financial institutions, he was thinking about the EU in particular, but not
only also the World Bank in the developing world, was, was really pretty much again, in clear violation of
human rights, okay, because the kinds of
rigorous fiscal tightening of the belt that was imposed basically looked a little bit like the structural
adjustment programs that we looked at with with Zachary. And when he called for it was actually
present in the building for today is what a number of human rights scholars independent reporters, etc,
call for is to do before you impose a measure or before you sign on international trade agreement or
bilateral investment treaty to do what's called a human rights impact assessments. So trying to ex ante,
imagine what might be the Human Rights consequences of a policy or the imposition of a policy, a trade
agreement or, you know, macroeconomic injunction to basically abide by certain fiscal rules, for
example. And the idea of a human rights impact assessment is really very much a rights based things,
the idea that young people participate, that there should be a focus on how the most vulnerable
populations are going to be affected, in particular, and sort of, you know, sort of try to sort of show and
disaggregate which groups are going to be hurt more by an operation. And in this case, he talked about
the serie series of new negative impacts, and especially disproportionate impact on women that the
austerity measures had had. So those are sort of interesting moments in which you have more recent
push, including by the UN Special Rapporteur, what they basically say, again, there's repetition that the
World Bank is a human wide free zone, which is really quite strongly going at them. And there's, again, a
228
push to go back to what Danielle had been doing is to really completely interpret the articles of
agreements in a much broader sense to include the possibility of considering human rights. Okay, that is
something that we thought were we when I say we sort of the Human Rights Committee thought was a
dad, and it seems to be sort of coming back. I don't know how far it's gonna go, we'll see. But what's
interesting is that every time I teach this, I always looked at the World Bank website to see what's what's
on there. And sometimes documents appear or disappear when I could actually find which is now now
not so much on the World Bank website, but it's on the websites a document that is something we don't
know where it is, but it sort of comes up as a PDF that is through the old ACH or the office for the higher
commission of human rights. And that's basically the bank telling you with ch O how and where it sees
itself. So of last year. So it's it's very, very recent. Again, same kind of rhetoric, you can see that the
lawyer of the world bank draft, about human rights obligations belong to our member states, world
bank financing can provide essential support for members to realize their own obligations. And unlike
agencies, which have explicit human rights mandates are all within the United Nations system does not
assign us to human rights mandate. So it's, it's, I think, pretty, pretty clear. The one last thing I want to
mention here
is an interesting case, which I will just mention, I just want to get the date, right, and I'm sorry, I don't
know if like hearts to Supreme Court case in the US from 2019, called John J. M, versus the International
Financial Corporation. And it's a move by creative us lawyers, who try to imitate what happened, you
know, almost two decades before, when a very obscure piece of legislation called the alien claims
towards x. Does anyone know about this? Right? They didn't change toward X is sort of a very old piece
of international American International Affairs regulation. And it was used very creatively by lawyers to
try to, you know, have the American courts be given jurisdiction to adjudicate human rights violation,
which would have happened not in the US and not necessarily against US citizens, right. And there was a
moment in which the American courts accepted this. And this was important so that you could sue
paramilitaries, for example, individuals, but also corporations, and there were a couple of cases. But the
Supreme Court eventually closed the door to this to a famous case called to bail in which the you know,
the conditions for this to be actually given jurisdiction in the US is very, very limited. So now there's a
similar effort, in this case, John versus the IFC, and it seems that the court was sort of, you know, open a
little bit of door to recognize the idea that the IFC, which is part of the World Bank, will not necessarily
be completely immune as an organization to claims about, you know, human rights and labor or
environmental standards violations. So it's still to be to be followed. There's a lot of, you know, excited
doctrinal debate about it. But it's important to know that it's out there that there is a there is a push you
to slip US courts also to sort of open up that box.
Okay. Questions? Yes?
229
Wondering about supplies?
So it's a good question. So, you know, I get, you know, there were a couple of people try to understand
that and explain this, you know, bureaucratic culture. I think that there's a lot that has to do with the
political positioning of the World Bank, and especially the idea and this is why all these you know,
Human Rights Watch, and all the reporters are really trying to push again, because there's a sense, and
I've heard this argument informally, that people at the World Bank are thinking, look, you know, we try
and we were burned by it, this was chopped up by pipeline thing we don't want to see as sort of
imposing things that not everyone seems to agree. And there's also the idea that they're not alone
anymore, right? That is cut this competition around the corner, there are these new the Asian
Infrastructure Investment Bank, the New Development Bank for the BRICS, which I mentioned
yesterday, which are absolutely not even asking for any form of labor or environmental standards, but
there's nothing, nothing is being asked, right. And China has had a very, you know, very openly
suggested that the kind of bilateral development aids that it was doing was without any kind of
condition was completely free of any, any kind of condition in terms of governance or in terms of
transparency, which, of course, is not completely true. There is never any kind of sort of assistance in
development that comes without any kind of rights, the condition the condition, of course, its access to
market or geopolitical support. Its influence is something else, but at least formally, the idea which is
now you can see any Asian Infrastructure Bank is the idea. You know, we're not here to give you lectures
essentially, I'm really summarizing here but we are here to sort of help with focus on material Um, you
know, investment in infrastructure, because that's what will make you grow, because that's what made
us grow China because there's a strong anti human right. So there's an idea that, you know, this was
already, even at the time, you know, when sands idea were up when when, you know, there wasn't yet
these kinds of competition, when Wolfensohn tried at the beginning of 2000. And it already failed,
because of the resistance of some state shareholders in the bank. You can imagine that this is even
more the case today. So I think that's evolved the reasons maybe that's the biggest one. But that's also
why you know, what human rights actors are saying, you know, on the country, you could you could,
you could show how different you are, you could, you know, mark the competition by saying, you know,
we have the standards to which the bank or these will answer well, we have these environmental
standards where we're virtuous, right? And again, the question is, whether you see the glass half full or
half empty, if you look at compared to 25 years ago, it is not nothing. But, you know, it's still still red.
Alright, so now, I would like to shift to
another
230
opportunity, I think, for us to think and it's more recent, and we've all been touched by it, it's not any
form of history, or very, very recent history about, you know, how human rights come to play, and
continue to be playing COVID and post COVID. Context. Okay, so one first starting point, we need to ask
all of you, but it's a pretty easy question. It's still I think, good to sort of hear about it. How do you think
and what kind of ways do you think that the COVID crisis? Let's imagine it were, and I think we still are in
it. You think at some of the lockdowns in other parts of the world? How has it affected human rights in
which human rights?
Yes.
Since the start,
so I believe that in most, especially the less than one, the way that was created with this lockdown in
such a way that the rich all the people with the higher class mind taking care of the people in the lower
class, they will be strangled. They did not have they did not have supplies, or that they like so as a
primary secretary. So you need to like work every day for a week. And that's a 10% of the country. Okay.
They lost their livelihood. They did not have anything the government needed, help them to get back to
school, by the way, the sanitization that was done. It was extremely disproportionate if it did so many
human rights on so many axes favorite.
Okay, all right. So we have a lot of freedom of movement, food, lively food, education workers, lots of
thing. What else? Yes. Right to help, right. Right to help. Definitely. Yes.
Not every country have access.
Yeah, so inequalities in access to health and vaccinations. Yes.
231
Education, right, right, whether the disproportionate impact on some, either some some countries or
some segments of the population.
Domestic violence,
domestic violence and child abuse, domestic violence. Okay. So huge impacts, right. Huge impacts. And
what was interesting to see is that during the crisis, especially in France, they were, I think, pretty much
everywhere they were, and that's, you know, both the, again, the advantage depending on you see it for
the disadvantage of human rights, that they were different claims going on at the same time. Right.
What about my freedom of movements, versus maintaining public health as a derogation to how much
freedom of movement you can have? And that's a classic question, you know, which rights are erodible
in cases of emergencies and there are some rights which I mentioned this two weeks ago, sunlight I
never dealt with the torture for example, but son rights are similar basic rights are they're movable in
times of public emergency, for example, but also the balancing er, Grace was a professor here who, you
know, famously wrote a really nice, I think it was an editorial of the scholarships and you know, there's a
lot of people protesting the restrictions. but it's it's it's not just in terms of a public event. So it's to put
forward and balance it with another right, which is the right to help even going further the right to life.
Right. So there's this idea of imbalance in which the classic thing to do legal reasoning in general but
rights discourse in particular, and there's been some cases the French Supreme Court heard cases where
the people protesting vaccination requirements within the movement and you know, there's it's very
interesting, actually to, to see how sometimes many of these disputes rather than being decided
politically with decided during the video, like legally or sometimes in court, depending on where you are
in some countries, of course, there was no discussion at all, and there still is very little discussion about.
Okay, so that's, you know, one way to think about Yeah. Right.
Never zero. But a lot of
people are protesting, say, the vaccinations are like, and mustard seeds and stuff like that. They would
just equate this today. Like, how so in such a situation, how we can understand that the balance is
public, at large. But when there isn't right, like right to dignity?
232
Well, there isn't actually a right to dignity. Yeah, yeah. What I said in the beginning of the class is that
the notion of dignity underpins is sort of the normative idea of Kant's idea of them, which is pretty much
what is behind the justification. Rather than, you know, rights coming from nature or coming from God
is the idea, it was grounded in the idea of dignity. So the notion of dignity is always present. And you
saw if you read the article for today, by Katie young, he talks about different interpretations of human
rights, one, which is based in sufficiency, and one which is made based more on dignity. But those are
concepts behind there is no right to dignity itself, please, legally, there is no right to dignity. That's why
balancing the notion of balancing between different rights is a lot of what judges and lawyers do all the
time. Right. And then human rights, that's precisely, you know, some people criticize that because they
said, you know, you're always going to be balancing. And there's, there's times in which you know, is,
you know, courts, their job is to say, you know, is this embargo enough of an emergency to curtail the
rights or not, that's really what they do. But another argument is to say that, you know, sometimes
rights are competing against each other in a way that is, is a bit tricky, you have the right to health on
the one hand, and then you have the right to property and if you want to get access to health care to
everyone should normally tax meaning that you're going to affect people's property. So there are
critiques about the fact that there's always a balancing and you know, it's up to basically judges there's a
number of legal standards you know, you have to be proportionate you have to be balanced you have to
be these are all doctrines that I'm sure you're learning constitutional law or other parts but they're
arguing in human rights law too. Yes.
About a specialty others here that if you're afraid, and you're wandering around, like, you have
something I mean, that's a bad thing. In other diseases, and if so, like, people need a right to have like
dance stuff, they want to drill really and do whatever but if your actions or receive other people's lives,
the world already decided that you are supposed to be like, mothers lives are more important than your
own feel
that the rights dignity environments needed so it was really searched already. Right, but
ya know, I think it's an interesting parallel. I think, you know, what, what is important in this case is also
to remember this difference which we mentioned earlier class, which is the idea that human rights
especially the judicial review of Human Rights Reports, are there also to avoid the idea that that you
233
know, How the majority of people think the Democratic majority thinks if we may be right, it's the
majority of people because in this case, the majority, I mean, in my country, the majority of people
ended up thinking that we needed to lock down. Okay, because they were afraid. So there was a
majority behind it, that the idea in a liberal democratic system will be that you can still go to court
because the minority feels that it's been, you know, it's been it's been its rights have been violated. In
this case, it was obvious that massive rights violations in every kind of way possible, right. So in Europe,
at least, it was freedom of movement in other countries that you think of South Korea, it was maybe
invasion of privacy, but people willingly gave their, you know, GPS to be to be to be tracked down. I'm
not talking about China, I'm talking about South Korea, democratic state, to different cultural
understandings of which be, and you know, at least in fact, that we, you know, there were cases, but it
turns out that the judges went with the majority, but not because it was the majority, because they
thought that, you know, you could do a balancing act, which suggested that at least, there are certain
conditions under which you can temporarily delegate to some basic fundamental freedoms, like the
freedom of movement, it has to be specific, it has to be granted by an elected body, the parliament, it
has to be limited in time. And there has to be some form of revisions, by the by the, by the
representative of the people. So there's, there's a number of standards there that work worked at work
to, to do the balance in minutes. It's an interesting, it's an interesting comparison, although I think it was
much more a shared experience. And that was a problem with HIV AIDS, that there was a vision except
in countries like South Africa, where the pandemic was really hitting very, very, very widely across the
population in Western European countries were seen as the problem of the minority, rather than
everyone's profit. So that is the reason. So I would like to first discuss briefly the readings that you had
for today, and then try to do a little exercise. Again, I think it's helpful for you to get your heads around
to the very concrete policies and how to deal with them in human rights terms. Okay. So the two
readings you had to read for today, as mandatory readings, there were other optional. The first one is by
Katie younger Jiang is really now I think, a prominent she's a friend, which is a prominent author in the
field of economic and social and cultural rights. She is the other book on the future of economic and
social rights. And she famously, a couple of years, wrote an article focusing on this notion that minimum
core you remember yesterday, we talked about the doctrine of minimum poor, and she really analyze a
really nice spreadsheet besides yourself right in the newspaper. And this paper is part of a collection,
which was asked by the other author, today, I will give you the scooter who is now the UN Special
Rapporteur on extreme poverty, human rights. And he asked her to write something at the moment of
COVID. Around, you know, how human rights are dealing with crisis. And the reading talks about, you
know, the differences between where and how human rights can be seen or analyzed against both the
Great Depression of the 1930s. And what was called the great fun global financial crisis of 2008. And a
couple of years after, okay, the other
reports that you have to be very discuter is, it was his first report, the first report, which he wrote in
2021, after he was elected to the UN Special Rapporteur on poverty and human rights, he had actually
planned to write another report published later, which is really interesting. We'll look at it next week,
called calling for a just transition sort of focusing really on environmental, the different environmental
crisis, climate change, biodiversity in particular, as new paradigms to think about how and where human
rights and development policies should design. But before that, you wrote something about COVID.
234
Okay, that's what you had to read for today. So just to get a sense of what you got out of these, these
reading, what do you what did you think? Well, first of all, what did you think about these readings? And
what if we start by the report by the UN's Special Rapporteur? What what do you think was the just the
bottom line of the reports What did it say? Yes.
To recognize that Everyone's actually slipping away like people we often not look at, like, for instance.
What it was was like, looking at things like how the digital divide is, yes, that is something that was
extremely huge, which was constantly being overlooked by people because a lot of people's modern life
changed in a way that it's, most of things went online, but so countries with access to technology wasn't
an option. A lot of people felt that I was. And that was something that I felt like just saying those people
and then I just said, migration, like, that was one thing, these people that will constantly overlook, that
was to me a straightaway.
Right? No, no, absolutely. And that's, that's really something that he highlights quite well. What else?
But as you start with what happened during COVID?
Essentially thinking about okay, social policy. Okay.
When did many, many
states not equally many states? Do? You? literates? Yes.
I think 1400s 1400 yet 1400. And he's just counting them. But what's there? What's the particularity of
the social measures? What was trumping that he sort of denounces? Yes, exactly. Right. So he's been
someone who's been advocating for a long time. And he starts and this is where his argument is close to
235
get young, he talks about how all the policies that had been promoted under structural adjustment, or
in Europe and in many parts of the West under sort of austerity and or doesn't really call it this way. But
neoliberal economic policy, basically, completely undermine the capacity of many states to respond to a
crisis like this. So he says, you know, this is a credible amount of, of measures, which is, he doesn't say
it's a bad thing. But he says they only tried to sort of catch up on the damages on the high impact on the
possibility process actually, progressively be realized there ways to help in particular, that happened
over the last, you know, 20 years. So he says, it's just a little catching up. And the problem is that it's
temporary. Right? It's temporary matters. But some states, I mean, France, for example, when as far as
pretty much nationalizing salaries, right? The German some countries, were not able to do that. But, you
know, I know some people who just couldn't work and just stay for a little while, and we'll pay every
every month salary by the state, which is incredible, if you think about it. But there are other countries.
Of course, we didn't do that. There were a lot of emergency measures related to moratorium on land,
and housing evictions. Right, this is a really important thing. People are people who can pay their rents,
for example, at least for a moment, not to be evicted. Any Why is he worried that it's temporary? If we
follow this thought, of course, as as, you know, the UN Special Rapporteur, he would want this to be
more permanent. It's calling for a strong social robust system based not on charity, but on strong
entitlements exist in international law. That's his role. He has to sort of make his case. And his case is
also you've just realized how important all these rights are the right to health, the right to housing, we
look at it so he's trying to seize the moment. The why is he worried about the temporary Yes.
Okay, I don't so it's meant to be but that's not what that's nobody's saying it. Yes. Just
stop there.
Stop the problem with this solution. Right? Yes,
it is, right. For example, if this is the input or sub like a huge part of the economy, that data was pretty
well, if people who are working as taxi drivers working in the platform all attempts to crash and break
that hasn't come to We recovered in some parties even now, because people are still like, you cannot
take the vaccine and all that is still an existing problem. But the solution is the recovery factors, all things
happened before.
236
Yes. And you know, he and both he and Katie make a point about some distinction between formal
formal Jon's former have the informant the fact that you know, not necessarily in France, but in many
parts of the world, most parts of the world, a lot of the jobs are completely formal, and therefore that
not only are they temporary, they're insufficient in actually targeting, or the or the the reverse argument
is that he will actually favor a certain number of people or civil servants with formal jobs, for example,
and disproportionately affect the most marginalized groups, including talks about the gender
perspective of you know, how do you measure were conducted, and especially, he's worried also about
the phasing out, right, he's suggesting there's a lot of spending that have gone. And he's worried about
what's going to happen, when, you know, the emotion and the political sort of momentum will have
passed, and people will say, oh, there's a huge story of us the French thing, which is, there's a huge
debts that needs to be reimbursed, and we're going to have to sort of, you know, we have to reimburse
the debts. And so he's really tried to, let me say, directly, he's trying to push his luck, in a way, it's
horrible. It's not a lot. But he feels that he has an audience, he told me actually, that in 2012, he had
actually tried to push an idea which was championed by the International Labour Organization. But he
tried to push it at the level of the G 20, to have what's called minimum social protection for us. So
there'll be no minimum insurance worldwide minimum insurance, social protection. And that went, of
course, nowhere. But he said, you know, 2020, the French government asked him to come and we
explained that idea, because there seemed to be a more momentum again, to make sure that in a
longer, more structural way. And if we think about future crisis, already ongoing crisis, such as
environmental crisis, or new pandemics, there will be sort of a new push for a more robust social, social
policy system worldwide. Okay. So the formalism of many of the measures, as we say, you know, the
fact that some of it has to do it, you have to sign forms, and some people are excluded from it, of
course. And then the the idea of the informal sector, okay.
So Katie, Young.
What about her?
What did you get out of this? piece?
Because he was constantly like this way of understanding. In a way it is, intrinsically, to watch, right?
And to click to read that. And I think she's, like on the same lines, because how they essentially go
through recovery. So I have an extremely common that people bugging me now.
237
Yeah, so absolutely. So this is more a bit more small than identities. And the other one is a report by a
special operator. And it has an historical feature, right? It goes back to look at similarities and
differences in where ownership and rights might have been used as a useful guide to recovering from
crisis. He talked about the new deal as an example, for example, rather than what happened after the
global financial crisis, where the response was just exactly what I said, there's a huge debt. So we need
austerity. And you impose on countries like Greece and you know, for example, drastic measures of
fiscal austerity to reimburse the debt which actually led to, you know, the loss of the average life
expectancy in Greece, you after 10 years of that, that's actually kind of consequences that you that you
have, so she's warning against that and also trying to sort of both seize the momentum but also try to,
there's a lot of stuff that she you have read the piece, it has a lot of stuff that directly refers to sand. I
think she even mentioned sand in her piece, and she's really trying to articulate very forcefully how, you
know, a serious human rights approach to a recovery would take into account the idea that all forms of
human rights are interdependent, and cheat sheet Right. You know, she she explains basically what a
rights based approach is, we've talked about this for the last three days, she talks about the idea of
creating spaces for new claims, and oblige each state to explore options and alternatives, through a
process with respect civil and political rights, and ensures that baseline social, economic, cultural
protections, maps, right all rights in st package, as a way to, you know, analyze what states are doing,
with the idea that, you know, a rights based approach here would really be about drawing, especially
under new legal, doctrinal interpretations of the international law of human rights, to really force states
to do things differently, or, and that's what I said earlier yesterday, justify why they're doing what
they're doing. Okay. And that sort of, you know, people who critique that will say, well, that's, that's not
enough. But she's trying to make a strong argument to suggest that, you know, you can use, you can
interpret all of these, this international law, to try to sort of shape something that is a bit more robust.
And she gives examples, right, the examples that she gives, one of them is the notion of minimum core
doctrine of minimum courses, she talks about the fact that it's not really recognized. And she talks about
the fact that it can really be understood as a minimum floor and excuse for stay saying we're doing the
bit about says, people like some more, and I mentioned that a few times are suggesting that this is a
framework of human rights, basic sufficiency, that he says it's not enough. She says, This is where dignity
comes in. She says, If you interpret the minimum core with it with a notion of dignity, and you allied
with a new kind of push by UN treaty bodies, to actually ask to state to precess to justify the reasonable
Maxim, there's a new reasonableness standards that is emerging, especially from the work of the
Committee on Economic, Social and Cultural Rights, the treaty monitoring body, the states have to
justify a reasonable their budgets. So there's a human rights approach to budgeting is a new thing over
the last few years. She says if you put a sort of, you know, broad and progressive interpretation of
minimum core, and you put it together with the idea that states have to justify, then it can be something
that is that is more demanding on states. Okay, whether that's true or not. You know, I'm not I'm not
sure. But it's actually that's that's her argument. The other doctrinal piece that she is trying to push is
the notion of the doctrine which I mentioned yesterday, that's really important. Those are important
doctrines in Economic, Social and Cultural Rights Law, which is the notion of non retrogression, right? It's
the idea that if you're taking away from what you've done to actually progressively realize economic,
social and cultural rights according to maximum available resources, you have to justify why you're
238
taking it out. You have to justify why you go back, you can't just do it. And you have to justify it. And our
story yesterday was the idea that well, maybe Nigeria justified because it's been imposed to do it by the
World Bank.
So that's what she's she's trying to push. And she's really trying to say, no, if we push for these
standards, they're not necessarily going to tell states what to do. But they're going to open useful
deliberative spaces as a sort of theory. And it's almost inspired by Harbormaster. For the people who
like that, to to try to sort of create spaces through through these pushes disclaimed in the courts, it can
be reported can be advocacy, in which, you know, both states and international organization can't just
do things without actually engaging in the reflection or justification for the reasonable as the
reasonableness or the non retro aggressiveness, or the minimum coordinates of what they're doing.
Okay. So that's what I wanted to give you an example of what the latest kind of push by human rights
scholar is in this field. And those are reacting to those two. Interesting one, again, trying to size the
moment of what's happening to make again, a really strong, strong point. She talks about obligation of
conduct and obligation of result to try to sort of you know, show that there are legal standards, which
are important and the notion of non retrogression is that if you go back, you have to do it. First you have
to explore all the alternative possibilities. If you slashed the budget, for example, if you take these
temporary measures out, and you have to do it, proportionally right and she says the proportionality is
something that in human rights As law or international humanitarian law is something that, you know,
lawyers are used to sort of being able to balance and to measure so. So that's the tried to sort of, you
know, push a little bit more standards. And she says if retrogression is done, you have to verify that it's
temporary, temporary, legitimate, reasonable proportionate, non discriminatory and protective of the
minimum poor obligations, as well as consistent with the requirements of transparency, participation,
and accountability. So we again, try to pack up all of these concepts within, you know, guidance for
states as they come out of the COVID classes. Okay. So I could ask and we could have a discussion like
this about what are the limits and pros and cons about this, but I want to do is through an exercise
groups fortunately take this off
I'm going to have you guys work again, in groups, three, four people possible. So it's partly based on
reality, but I shifted and changed things a little bit, okay. The idea is to imagine that the so it actually
happens often, as I said, UN special operators do what's called country visits, they go to the country, it
has to be negotiated, accepted, been in has to be an invitation by countries. And then the UN Special
Rapporteur meets civil society meets the government, different branches of government, sometimes
international organizations too. And then sometimes the press, it's allowed or sometimes leaks to the
press. And it's a moment in which a lot of civil societies try to regroup to leverage whatever kind of
239
attraction they can have, especially from the press. So let's imagine here, it was not this reporter, but
someone else came actually, that the Government of Nigeria was working in was about to issue an
emerging from COVID-19 plan, right, so this is now or, you know, maybe a year ago, but now if it were
still emerging, so and the idea would be for you guys, so I had a more elaborate scenario, but it doesn't
matter will be for you guys to actually basically try to gain from the readings for today and just say, you
know, arguments that the UN Special Rapporteur could actually, you know, use to try to tell the
government that what it's doing either Okay, or not, okay, okay. And he's the UN Special Rapporteur on
extreme poverty and human rights. So the readings are an inspiration. The guiding principles that we
looked at yesterday on extreme poverty are also something that you can use and this is the plan okay.
So, those are some I'm going to read them but that you know, you're gonna have to start them working
on it. So there were emergency measures. So the one of the emergency measures is to enhance police
security forces ability to enforce national, regional and loc local lockdowns and unnecessary restrictions
to freedom of movement in order to ensure national solidarity in times of crisis, and to avoid threats to
national security and orders such as terrorism or incitement rebellion against the state's second
purchase with the help of international voters and in light of the current recovery in hydropower,
hydrocarbon demand and prices, which is petrol prices, as I think of some information technology
system from South Korea in order to monitor and enforce individual implementation of sanity metrics,
including isolation in case of infection. Purchase by the state of further doses of Sputnik Silverback and
single farm vaccines license to produce locally distributed vaccine and the reception of leftover doses of
AstraZeneca through the Codex Codex is the international initiative in which rich countries have decided
to give the world Have their vaccines to more low income countries purchase with the help of
international donors and in light of the current recovery. Oh, sorry.
Did I was that already present? Yeah, sorry. Take that out about this.
Continuation and scaling up with the help of donors and Emergency Economic metrics, reinforcement of
temporary COVID focused healthcare facilities. And that then stereos the development in urban areas
for further period of six months of emergency shelters and the moratorium on housing evictions, cash
transfers to low income households of Algerian nationality on the condition of registering with local
health authorities for purposes of monitoring the prevalence of the disease and filling our monthly
forms with local authorities tax individual debt relief, raising partial unemployment benefits for those
registered in the formal sector. And then a couple more, I'm going to read them quickly proposal to
amend the Constitution, including the city broader freedom of the press and enhance separation of
power. The context for those of you who are not familiar with Algeria is that just before COVID, there
was a big movement, the street movement of Iraq, which was a basically rebellion by by, by, by large
segments of the society against the regime in power. And it was there was a you know, movement that
was burgeoning with lots of mass demonstrations. And the idea was maybe that they were going to be a
new constitution, all of that was being you know, playing out the moment in which well COVID arrived
and people were taken off the streets, okay. Suppression of temporary health facilities deployment of a
240
cost recovery, cash Miss mechanism for non emergency healthcare, freezing the salaries and hirings in
the health sector, the suppression so that's what's supposed to come after right, suppression of the
mortarman evictions of the cash transfers of the tax and individual debt relief and of the unemployment
benefit wage. An increase in the sub budget of security forces by 10% suppression of the subsidies for
purchasing NFC by the public by 50%. And increased support or participate participation directly by the
state in the energy producing sector, natural gas production and or chain including tax rates are stacked
state owned enterprises. Asking this should sound familiar, we will be done and it's alamode actually,
again, in many countries, the Ministry of Planning to identify sectors to expand import substitution
industrialization, including through tariff barriers to protect nation's domestic industries and proposal to
re examine bilateral investment treaties and Natural Resources extractions concession contracts closes
on the allocation of plugins, right. So I know there's a lot here but that's typical of you know, what you
what you can find it some sort of proposal that's a policy plans, you know, both during and transition to
code. Okay, so they're on Moodle, you can have them here but if you can, you know, join as groups and
try to go through these and suggest in light of what we've seen what seems to be problematic and and
try to think also strategically What can a UN Special Rapporteur do? What should he say he or she say
what would be settled the priority of the best arguments in anticipation of what the state might answer
right if we have a timeout of playable the states and then you guys will play the role of UN Special
Rapporteur Okay, so let's start Come on Please sit together as groups and let's get going three, four
people and those of you on on Zoom think there's five of you on Zoom. So you can just you know, try to
discuss you can use the chat to do this
right first class second sociate? You caps Hello YES
energy to figure out
oh Julia is a big producer producer of oil and natural gas right one of the main income sources sorry I
should have said that one of the main sources of you know foreign currencies actually oil and gas and
there's now a lot of demand for actually this is if we take the Russian context the idea with Julia offered
to actually increase its supply
show night? So Simple especially
241
Thanks looking better
you number one so sorry?
Video yeah All right. Right. All right. Heated heated debates. That's good, always good. So I know there's
a lot there and you obviously would probably be more time to process this. But I want to hear a few
thoughts, you know what, what came up, you know popped up in your mind. And we can also relate
some of the disagreements you had. And then it will take some time briefly in the beginning of next
week to go over this, and I will explain also why I added some things in the hypothetical. And most of it
actually, was something that was actually proposed, but I did a few things. So what about the group over
there? The three of you?
I have one questions.
Questions, I want arguments.
You can do a question and I'll do No,
I don't understand why. They don't understand
why they fear why they're on the side. So
okay, so that's
242
really so So did you did you try to frame a couple of arguments?
Okay, problematic. Okay. We are in less time the government of Germany and so but we are we are
hearing when other rich countries
you know, my nation of the government comes first we have to protect everyone. I'm trying to sort of
give you the Exactly. Exactly. That's maybe. Right. So, you know, and we've seen a disagree, take one
argument and one that occurs, government sometimes says, you know, the reason why we're doing it
you formulate sometimes it's like, well, it's something that's imposed by some of the donors. The other
reason is to avoid that people who profit twice from the system, you know, that people love using the
system, we don't want any corruption. So the formalization will actually help us make sure that, you
know, our meager resources, which are in without a rich country will actually be going to people once
rather than two or three times. Okay, that's the kind of arguments you're faced with sometimes. Yes.
Well,
we had other problems with Catherine's point. So first of all, tying that to registering with the local
authority doesn't see anything. And then also, just reversing low income households. So only they have
to register with the Health Authority should not be others, which is also discriminatory, because it's not
their fault, but therefore, I need those cash transfers. So that's problem. You don't
know our country people otherwise again, will profit from the system we have to do we need some kind
of border there otherwise they don't register how are we going to make sure that it goes to the right
people?
Well, we have a national income poverty by like every country has, like Sustainable Development Goals,
asked us to do when we have a very definite time, which is about a specific PPP value.
243
Registration for the cash transfers, but then don't couple it to the Health Authority. All right,
good. This is you being a lawyer. That's good. What else?
You guys The specifically targets and in fact some of it is actually worse for women because if you look at
the lowest paid mostly affecting people who are already in damage to general conditions given the place
they provide no semblance of the checks and balances shutoff
fishable because of the history of dancing fundraising for the security agencies do I get to go to parties
rights attendance
but yeah that's a security point you know, rights were suspended in France in the UK in Israel
everywhere right
often seen in the case
where a full functioning democracy and the answer to that would be maybe well, you know, we are
security forces are exhausted from the previous revolt rights movement. They're really absolutely
important for you know, we're strongly believed in what our friend Huntington talked about the
necessity of political order when really fragile situation right now so we need to make sure that our
security forces bring peace to the people and that's the kind of argument you'll hear right but of course,
the rights perspective is problematic. You wanted to add something many issues
244
to legitimate
national security but not proportionality
and cannot be achieved by six needs. And okay,
thank you guys, what was going on? There was a strongly within so that you guys can wait two more
minutes, just as you were in the middle? Yes. Okay. So,
for me, the big was actually about two things. One was the freezing so on one side, we were arguing,
potentially, cabbage transmitted by Mr. Murrow Geryon How are you going to know to get the money
some officials makes it strange so those connections Megan
was raising
what happens if you don't use it, lower salaries because it's articulated here, it
doesn't say
stop hiring, etc results. So is it it's the additional stuff that was wanting to deal with
245
so that's great, actually. So so. Hello. So we're past that time now. But this is really all of what you guys
says is really interesting incident. Basically pushing through exactly. Some of the policy statements by
states are very ambiguous and Algeria, the reason I chose Syria is because there was this whole security
issue, I added a few things. I will explain why some of the things aren't that some of the things are just
what the Afghan government actually issued. Right. But there are obviously reasons but to try to unpack
exactly who is going to be affected, is there going to be, you know, the most vulnerable, it's going to be
women it's going to be which kind of civil servants are the private emergency hires, who is going to be
affected? That's the kind of stuff that you know, the the rights based discourse is trying to do to unpack
things a little bit, because otherwise it can be basically use for not necessarily political benefit, but with a
lot of political discretion by governments. And in this case, one of the key points, of course, is how
arguments about public health have been used for security surveillance reasons, which is definitely a
problem in the Algerian context, but in many other countries around the world. So thank you for
engaging with this. I know it was you didn't have a lot of time. I'll take some time to go over. So why is
some of this on the on the on the on the PowerPoints next week. So next week, I have two things to say
about next week. So we have two classes left one on Sunday one on Monday, I was I was planning to do
two sessions on the right to help the environment. But I want to use the first session to to visit a little bit
with you the whole notion of business. It's related, of course, to environmental issues with a business
and human rights. Okay, so I'll reassign and add to the reading a couple of the things you looked at,
hopefully, before the guy from Michigan came, so we can discuss that. And then the next day, we'll do
something on the on the right to help environment. The last thing I want to say is that our last session, I
will have to do it on Zoom. The reason I had to do it on Zoom, unfortunately, is because I have a plane in
the afternoon if I come here, I won't be able to get to the airport in time and I want to do that. I don't
want to change the time. So of course, the exam, of course, of course that will be done either on Sunday
or Monday, but of course, alright, so have a good weekend and I'll see you on Sunday.
Class 11
Yeah Yes
all right so let's begin Today's our last class in the classroom together tomorrow it will be on soon as I
explained last time session. So the first thing I want to do is to is to briefly because we have had quite a
lot to cover to briefly try to go through what I had in mind, this exercise that you finished with last time,
you didn't have a lot of time. Recognize that, to think about it. So just a few things. Okay. The main idea
was to show that, you know, the transition plan was proposed, some of it was based on reality, some of
it was invented. But the idea was, it's actually to show that restrictions on certain number of rights,
246
according to human rights, human rights approach would suggest that it is legitimate, proportionate and
limited in time. And what you had here, quite interesting means that there was no mention at all, about
any form of parliamentary process, any form of consultation on when these emergency measures would
stop. It's just decided by the government. And this is, of course, a pattern. A Jew is not the only country
Yeah, a lot of countries have basically decided to impose measures and only the executive branch and
decide if and when it actually wants to stop. And so the idea of legitimacy, deliberation, participation is
definitely, of course, absent of this. I included in the idea of the longer you don't remember the
introduction of South Korean digital technology, just to make it actually a little bit more complex.
Because, you know, one thing could have been, you know, let's apply a very strong digital surveillance
tools that come for example, from a more authoritarian regime. But in South Korea, what was striking is
that there was a very different approach to how you deal with COVID. Whereas freedom on movement
was in a way accepted. In the light of the of the crisis in a number of Western societies. South Korea is
an example in which other kinds of rights were much more quickly given. Whereas there was some
resistance in Western countries about it, which is privacy rights, right. In France and Germany, for
example, there was a you know, a lot of vigilance in terms of not wanting the state party made, maybe
for historical reasons, or cultural reasons. And according to other people, there would be resistance to
that, whereas in a democratic country, like South Korea was was much, much more easily accepted.
Okay, as good lawyers, you all pretty much figured out what the main issues were to the tune rights in
terms of access and discrimination, the idea that more urban centers would be favored by this measure,
that there was a lot of formalization, which meant the number of questions of the foods in chocolate,
the formalization, and who would be kicked out of it, remember, it was sort of played out the argument
that we needed some kind of formalization that so that some people would not play the system, which
is, of course, I think, largely that same kind of argument that you've heard it around. I mentioned a
number of issues such as education, water, and other economic social cultural rights were not included.
And this was just meant to see if you would react to this. And you know, through the discussion about
this, you could also see the debates and the arguments about the minimum core, remember this idea of
a minimum core, which can be interpreted to be a bit more expansive, that wasn't Katie Young's pizza
for last time, or something that can be very quickly articulated as a good argument for sex. So you know,
we're really doing what it can do. We're not afraid of pockets. We're progressively realizing according to
a maximum available resources, which we have time for more debates. That's what I would have argued
in the position of the government, the notion of a proposal to amend the Constitution. This is actually,
you know, often when they're crisis one proposes a commission to settle in. But in this case, in the
Algerian real story, there is actually a commission that was trying to implement the change of the
Constitution, but that predated COVID. That you can see that sometimes there might be political
moments of opportunity. There's a very interesting
debates happening right now in Chile, Chile, some of you may know, there was a, you know, large mass
protests in the streets that eventually led to the change to the election of some of the leaders of the
social movements, and the lot of the protests was particularly articulated in terms of rights, and
especially the idea that the Constitution of Chile should be changed from a neoliberal that was created
by you know, at the time of Pinochet during structural adjustment, and the idea that the Constitution
should include much more rights basically approaches including participation, attention to indigenous
247
groups rights to water. And there are debates as we speak. Even this morning, I read a piece about it
about how the national constitutional assembly in Chile actually rejected some ideas of nationalizing
mining projects in Chile a bit. They're really interesting debates about that. And a lot of the
argumentation that couldn't be done in at some of the dead was about the obligation, which I
mentioned is important in the law of economic, social and cultural rights, the idea of non retrogression,
that if you're going to, you know, anticipate what's going to come after these emergency emergency
measures that they're they're going to be pushed by there is a vigilance that human rights lawyers are
trying to carve it that the excuse that that have to be that the debt has to be reimbursed, doesn't
actually give a good excuse for States not only to retract from what they're doing at the moment of
emergency during COVID, but that they even pull back further in terms of the minimum standards of
social policies that they have cash transfers to the poor or access to health care education. So the whole
idea of non retrogression is to again, force the states to show that they cannot do better. Okay, it says
sort of a burden of proof kind of argument, you have to according to the doctrine, you have to show
that retrogression is temporary, legitimate, reasonable proportionate, non discriminatory, and
protective of the minimum core obligations, as well as the requirements of transparency, participation
and accountability. So there's a lot of safeguards. But in this case, there was a lot of, you know, lack of
attention to most most marginalized groups, some forms of discrimination, and the problem with non
discrimination. The reason I included the whole isI story, which is which is partly true, although Algeria is
now being one of the countries that Europeans are turning to very, very large tribesmen, hence, their
supply of natural gas or any form of pressure on a period of change. So the democratic system is
probably going to be lost on that. But there were there is a moment in which a lot of the that they
consider have been considering to do, again, import substitution industrialization to do so, you know,
you hear lots of both because of COVID and current context of the war. Right, also, the idea that, you
know, blocks or nations have to be industrially independent, to be industrialized, rather than just, you
know, going through what's called, we call them this class export led economic growth. The reason I put
this idea here was that in the more elaborate scripts, some groups you hear play the role of the world
back, right. So some people would have been talking to the Special Rapporteur, and the idea was at the
World Bank, you know, maybe to what we've all seen with the Royal Bank may have had may have a
leverage on the kinds of safeguards and what kind of industries are going to be chosen, and particularly
with regards to climate change goals. Remember, these environmental and social safeguards the World
Bank are the performance standards of the IFC, this was a potentially entry. Okay, so that's for that. Any
question about that? No. Okay, so what we're going to do now is, and it's quite it's quite an undertaking
to do a little over one hour. But I want to try to give you a moving field. Because
a sense of what the dilemma is, and the big new rules and norms are around the field of what's called
cases in human rights. Okay, there are entire classes, I made the point here on business and human
rights, but it's still it's actually evolved over the last, you know, 10 years, especially in ways that are, that
are quite, you know, whether one likes them likes it or not, whether one is critical or not, it's, it's, it's
definitely a phenomenon that is observable, and that is worth actually knowing about and study. Okay,
so I'm going to try to Well, first, I'll ask you a few questions, so we can think about it. And then I'll try to
give you sort of a map of the various initiatives which are out there, I'll go relatively quickly, but the
slides are there to sort of give you the headlights for those who are not familiar of where and what to
248
find And if you're more interested in tomorrow, we'll we'll pick up a little bit of this towards the
beginning of the class, because it has, of course, some late with the notion of corporate accountability
with regards to not just human rights violation, but environmental rights plants to Okay. So, to begin this
to say very, very simply. So one could say that, you know, there used to be a clear dichotomy when I
started engaging in this field, there was definitely the idea of, you know, economic activity investments,
which is the business of businesses, potentially actors, like international financial corporations, like the
World Bank, sorry, international financial institutions are behind it. And the idea that human rights were
really about states, right, the main duty bearer, remember, international law, even today, still
remember, remains the states, okay, so there seems to have been a bit of a paradigm shift in that, in a
way, the so called monopoly that that states had, not necessarily one that they love, but that they would
be the only ones would have to actually realize human rights obligations, has been questioned. Okay.
And the idea is now that you have arguments that have started to take ground, even legally, that
corporations themselves. So there's two kinds of argument. One is that corporations can actually be a
good vehicle, they can leverage change, they can actually implement change in terms of human rights.
And you know, if you if you hear what our friend from Michelin says, you know, that can can be one
interpretation of what they're what they're doing. They said, it's perhaps not so rosy and simple, but
that's 111 approach. So maybe corporations as a vehicle for the good. But the flip side of that we should
hear a lot from activist is, is to say that, well, corporations mostly should be held accountable for the
back for the bad side, that they're suing for what they're doing wrong for the sort of the negative
externalities, the consequences, the damage that some of their business do, especially in the developing
world. Okay. So because of the sort of two types of arguments they're seeing, there's a field that has
emerged. And it has also emerged very simply because I'll show you a few signs that I'm sure they're
familiar with this, by the just asides that the private sector has. Captured in terms of the flows of capital,
the weights of some of the largest corporations, visa vie, states on budget, some sort of report states in
the world don't have the same budgets as Walmart, the same capitalists as Apple, you're all probably
familiar with it. But there seems to have been a huge expansion of the private sector, and therefore, a
challenge as to you know, who is going to be in charge of some of the stuff that we're talking about in
this class, which is respect to the price, delivery of water education, respect for civil and political
freedoms, all of that, in some way can be said to have been largely private acts in large parts of the
world, okay, there's going to be treated the same function to deliver this thing. So in terms of the kinds
of arguments that have emerged, and I remember, Commissioner having to do these arguments
internally, corporations, big corporations grow. And there are movements, we'll look at different
movements, both within companies very often outside, I told you, it's not the creation of that job and
insurance policies, because of the reaction to advocacy campaign, face. But a lot of people have been
trying so either outside or inside to do what's called building the business case. So why should
corporations care about? So that's one. One thing I wanted to sort of get started with, and I just want to
ask you the question, so why do you think that businesses should care about human rights? And it's, you
know, based on the readings that you've had, we do or just your own thoughts at the boat
249
why should it be business care management what's, what's the objective of business? To make profit.
Okay, so why should businesses care about your?
Businesses back Okay, so a lot of a lot of human rights advocates, it took them a while understood that.
And they said precisely, this, this is a business, it's we have to build a business case where you can
advise, and we have to convince not that human rights are great or that Amartya Sen is right, you know,
know, the business case. So, put your business hat on, I'm sure many of you, yes. Reputation, yes, to
damage people's livelihoods. If you hire private security guards that are going to kill the people who are
around the mining field that you're mining to. That's bad, right? You and I might, maybe it might impact
our behavior with regards to racial reminded facts. What is it that what is the corporation dependent
on? customers and investors? Right, so maybe some investors might be saying, I'd rather invest in
another company, which is, at least so the more cynical way to say this will be like, well, this company is,
is because nothing costs, right. Or this company, if we believe what we are saying is true, you know,
really seems to be putting the money where it's worked out, and they're really trying to do something.
Yes. That there is a demand from our customers and investors, for firms. Sounds irresponsible seller, and
that needs to be built that. Yes. That is, that sounds like more work than building a business case on top
of that, exactly. So that's your right. This is this sort of has come about, but a lot of businesses that I
remember the first year that I tried to start doing this work people, you know, financial directors of
companies were saying like, you know, people don't care about that.
How many of you own an iPhone? How many of you have heard of the Foxconn story
couple of years ago there was a big you know, a big scandal about how the working conditions the
biggest the biggest plant in which your iPhones are being built right big uproar. Big scandal contact us to
you when you were there. I was there to give it more but not much more it up. Still, I haven't actually
you have an iPhone, right? It's the same story as in the John Oliver video, which I asked you to look at
right there's a big uproar about sweatshops. This was one of the big the first big movements was about
you know the sweatshop very horrible working conditions and people doing textile both in the US and
across the border. big uproar. Do interesting shows that people get upset there's all sponsored
initiatives and eventually people keep buying the T shirts why cheaper? Yeah. So So consumer behavior
is not you know, so you're right so these are not it's not the only argument so what other form of
argument that can be used?
250
But But that's only if people think expressed that it's their interests that they put pressure right so that
that's what you were sort of saying if I understand correctly, it's only true if people's interests can also
includes the idea that you're going to look at what you're buying and you're gonna you know, you want
to buy ethical you're ready to pay a bit more you're looking at the supply chain, etc. There's a lot of work
around some labeling products that people perceive Spread thinks that it's bad to do one, things like
that. What other kinds of arguments? Yes, there's the argument that happy employees are loyal
employees, they do a better job, which may work in some small context. But when you talk about the
people manufacturing, some pieces of China true, but maybe the guys in the headquarters, you know,
you and I are future, even in a law firm, that we did some project on a corporate social responsibility of
law firms as company. And it was really interesting to see, you know, how young graduates actually felt
that they would maybe perhaps the same kind of salary go to a law firm that actually has diversity
policies, environmental labor, etc. The privilege seen effects. So it's what presents enough to actually be
fair enough. But at the size level of a company, attracting talent is important. Right. So the kind of
interests and values of the employees is what? What else? Yes. So the products are happy consciously,
but also, you know, someone who was able to, yeah, someone who is able to have to have maternity or
paternity, who's going to be able to sort of come back to work, it's because that's the business case is
about productivity. Yes. Yes. Ah, great. Risk. Alright, so the main idea here, so there's all of that there's a
reputation. Outside, there's happiness and productivity inside. But most of the argument that seems to
be sort of really making a difference, and that's one of the real reasons why change is when the financial
director started to hear about the potential costs of the consequences of doing nothing. Right? Strikes,
people protesting litigation campaigns, because there are, you know, thankfully, actors out there who
are not happy with what's happening, okay. And, you know, there was a big, there was a Goldman Sachs
reports, on a few years ago on cost inflation in the petroleum industry, for example. And it said that the
time for new projects to be developed in this area doubled in one decade. Okay. Some delays were due
to the technical complexity of doing it, but most nearly half of the delivery was related to what Goldman
Sachs called non technical risks. Stakeholder related risks are the largest category in those non technical
risks. Stakeholder related risk means the communities, the workers, all the people who might be
affected by, by these, these, these projects, right. And he talked about because Goldman Sachs, of
course, calculated that 6.5 billion of value erosion over a two year over a two year period period, okay,
the mining industry research show that three to 5 billion are lost around 20 million per week of delayed
production. So there's a huge, you know, up costs of these delays, that can actually be shown to
financial directors of companies to be really damageable. Right, in terms of investments, access to
investment, because if you're a company that has not mapped out and try to start to take action, B's or
meet those risks with CO political risks, sometimes
you might not actually have access to remember the IFC, the International Financial Corporation, the
private arm financing, but they they're not perfect, but they have these performance standards. And if
you don't have them, they're just not going to help you because you won't have access to the market.
Because you don't have the World Bank with you. Okay. Increasingly, you have shareholder resolutions
and shareholder meeting you have a couple of what's called activist shareholders who for a variety of
reasons, maybe now they feel that it's it's important are putting pressure, and you have a couple of
divestment campaigns, okay. And it's very important increasingly, we'll show this later. When we look at
251
this map, you have risks, not just operations being delayed, but what's called extraterritorial legal risks.
Right and the extraterritorial legal risks are related to the emergence of a set of international guiding
principles and principles on business and human rights UAC D guiding principles, but mostly More
fighting legally a set of domestic legislation, especially in Europe, that is meant to have extraterritorial
legal reach. Okay, we'll look at those. And there's a product, of course, at the level of EU itself. So there's
a there's a Vanguard, there's also stuffing us all around the world, which is sort of, you know, showing
that the the risk is not just reputational risk, not just potential delays, it's becoming question of what's
what's in preparation for compliance, right? legal compliance with some new rules. Okay. Now to the
question of, you know, how should Human Rights Act and we engage with transnational corporations,
there's two different approaches. One important argument was made a few years ago by Olivia
disputable it is this because now I mentioned in a few times, is the UN Special Rapporteur on poverty
and human rights that he wrote more than 10 years ago about the importance. And you have that in
some of the pieces which were read for today, of human. So there's two ways in which you know, you
could you could try to target transnational corporations. One is to do a more micro approach, which is to
try to either pressure them from the inside, or to try to leverage the idea that there are risks, and maybe
legal risks, to try to sort of have company change its behavior. In the case of the Michelin story, on the
White took the French axis and the Mitchell story, the story of Musa it was, you know, an advocacy
campaign that lead actually to Mishnah, changing its behavior, they wouldn't recognize it right through
this OECD procedure of sort of quasi adjudicative body is multistakeholder, negotiation, etc. So that
happened. There was of course, litigation, there's a lot of campaigns and litigation is trying to sort of get
the company to not change from the inside, but basically to stop a project or to compensate for crimes
that they've caused. And what he was saying is, so that's, that's good. And that's micro that needs to be
multiplied from the perspective of the human rights advocate. But he said, we also need to look at the
structural features of all of this, and try to look at a more macro level, showing, you know, what allows
for companies to operate. And basically starting to replace public services around the world, where
water electricity, a number of things have been privatized, or the mining extractive resources industry
says we have to also look, rather than just trying to go one by one, we have to look at the human rights,
features of most structure, the legal structure of the global political economy, that's a fancy word to say,
trade agreements, bilateral investment treaties, and he's really pushing the pushing for long time for all
of these mechanisms, which are the round the ones around which and within which the legal space,
sometimes international or bilateral, within which corporations operate, right, they invest, they get a
contract to extract and the binding why because they're protected by that bilateral investment treaty
that says that they cannot be expropriated that says if they have a problem, what happens mostly if the
company has a problem with the states has been given, for example, a
concession to extract money my name or to deliver water stays down into Beach with its What's the
mechanism? International law? Yes. Arbitration. Okay. So arbitration is a private dispute resolution
mechanism, which is included in the fine trades of most contracts. Yes, though, arbitration, though,
because you were laughing. Okay. No, it's fine. Okay. No, but if you want to add something else so, you
know, okay, so international investment arbitration, right. It's a mechanism that that bilateral
investment treaties or some trade agreements, many of which were designed in the 1980s and the
1990s. Right, all this neoliberal framework that we've talked about the Washington Consensus even
252
before in the 50s exactly the firstly it that it was Germany and France. Okay. But, but many of them in
the many, many 80s, and particularities, they basically they're saying, it comes from the history of their
true history of some corporations and some corporate executive being put into jail or sort of operation
being extraordinary when the country decided to nationalize. So there was a real argument to say we
need to protect, you know, if you've invested, and it's very much invested money protected from that.
But more and more than sort of the 1980s version of that included really a strong strong protection of
the investors, and especially the idea that if there's a problem, you can't you won't have to go to the
national or because the idea was that the national courts was either inefficient or will be biased towards
the states, when the state stops your mining contract. If you go to court, there was a there was a, you
know, the idea that, you know, some of the rule of law in some of the countries in which investment
was done, or that there would be sort of a national bias of the courts, which is, you know, perhaps to us
not true. But in in any case, instead, you had assessments, international investment arbitration in their
classes, if there are classes and books, there's a whole industry about that. And there's a lot of critiques
about it in the last 1015 years of the fact that it basically very often has ruled in favor of corporations
and states. policy space, the ability to regulate their ability to also realize their human rights obligation,
not just their obligations with regards to investor has been that you have recent cases. case brought
services Argentina 2016, in the first case in which to try arbitration tribunal is the three judges that some
of them are related to fix it. Well, facts have different mechanisms. And essentially, it's supposed to go
to be much more neutral and efficient doesn't take forever. And 2016 was the first time that a tribunal
accepted to hear counters was going to counter chain by state thing. Okay, the corporation, the
Argentinian national corporation suggests that it was treated badly that we Argentina for just that the
reason we're doing is because we have to realize obligations with international obligations with regards
to the right to water Prosser was a company that had gained concession rights for the distribution sell of
water in addition to so you have an interesting feel with regards to that. So to go back to what you were
saying, we were going to look at this in a more organized way. But this point, and if you say, you know,
we can do the five one by one, but we should also be looking at, you know, the structure, these kinds of
mechanism arbitration, look at them criticize them making push the human rights in their first bilateral
investment treaties. And there's new, really interesting new developments by countries such as South
Africa, which are trying to include the bilateral investment treaty, the idea that states have to respect
the property rights of the investors, but they also have to realize their labor environmental standards. So
there's, there's stuff about that. Okay. So then this is, we've already discussed this, right, but just to
make it organized, so there might be the the risks for businesses is the business case, right? Is the
demand the civil claims and maybe regulatory action that might be criminal prosecution, in some cases,
operational that means that if you you know, you misbehave or you allow a supplier working with
misbehave, you might be, you know, your license might be withdraw, you might create conflicts, and all
of this might delay the operation, but standard, you might have less access to funding from international
organization. That's the story about the IFC, for example, and the reputational risk, the one that you
started with. So the competitive advantage is sort of be the same thing. But say in the in the more
positive way, If you abide by human rights, as a company yourself, you're going to develop a real sort of
human rights policy you will enforce not only your legal will what's on your social licence to operate,
meaning that you you know, you you're accepted, because you're seen as a as a good company, you're
253
investing in schools locally, you're respecting the local rights of different communities. It may get you
access to financing it may To attract and retain the talents, right, all of the stuff that you guys said, and it
will allow you to manage risk, legal, operational financial reputation. Okay. So that's a classic kind of
story that you can have heard from either people, you know, the way really interesting to me to see that
in a lot of corporations, you had corporate, corporate social responsibility, people were not really high
up in the echelons of a corporate Corporation, right? They were, they were seen as Oh, yeah, these guys
we have to do, we have to promise that we'll build a few schools. And that will be at the difference now,
right? The cases that these people have made, or that, you know, some big cases or some big scandals
means that there are new norms International. And, as I said, extra legal, extra territorial domestic
norms that have pushed this to be taken a bit more seriously. So a big corporation, sometimes you have
a human rights person, to dial a big French, which will your company has department now, which is
unthinkable, in fact, 10 years ago, and a lot of these people have a higher level now they have access to
what's called the executive committees of companies. Some of them are joined now to those human
rights, CSR and compliance, because it's seen as something that is about legal compliance, rather than
just voluntary. Yes. As it's a bootstrapping processes, the rise in the demand for it creates the
opportunities generate reputation, which makes it makes it create more demand. Exactly. And you
know, that if you see things, as I said, in a previous status class a few times you can see things helpful or
half empty, whether they have post or you created a virtuous circle, right, by making these moves is
really political move these lit these advocacy campaigns. But also, because there were a couple of
dramas, sadly, there always is a drama somewhere, this creates emotion, you know, a circle, which is
actually existing. So, if we tried to sort of think about this in, in an organized way. Classically, we know
this already quite well, in this class. Human rights is a state based system, okay? States are seen as the
only duty bearers of human rights obligation. And the idea is that since the 1980s, there's an emergence
of post Westphalian, so we're still in the Treaty of Westphalia and the 17th century was one in which,
you know, essentially, the notion of sovereignty and the basic principles of international law made by
four states, which established human rights with a bit of a revolution in it, but this is going further. And
so in this notion, is the idea that, you know, sovereignty is put under pressure not so much by, by human
rights, monitoring, looking at what the state is doing with its inhabitants, by the fact that, you know,
globalization has completely reduce the role in the size and weight of the states. Okay. That's what stuff
gets us into the famous talks about. So just to give you a few examples, there are many, many ways to
show this over the top of the top one economic entity. 69 are corporations, not states today, the top 10
Corporation, this is I think, the latest report.
There are some Chinese petroleum companies which are there too, but Apple, Amazon, Walmart and
shot, so all of them combined. revenue that is bigger than 180 of the world's countries into put them
together into the Columbia increase, okay. Apple's annual revenue is bigger than the GDP are all the
countries which are darker here, which says quite a lot. So you know. And the problem, classically, was
this this, I mean, it's very exaggerated, but this is when corporate structure looks like. So if the states are
not anymore, the name, you know, they're still the duty bearers, but they're not doing a lot of things
that this they used to do today, especially in social policy, or economic production, because they're not
no less state owned enterprises directing is totally privatized. Then the problem of course, even from a
legal perspective was like, Where do you go, what can you do with this? I There's a headquarter, there's
254
joint ventures there's like all of these, like, complex international corporate structure, which were made,
of course, to for the company to work more efficiently. But lawyers were also there to say it's better to,
you know, separate things sometimes so that there is no liability. And the big argument famously was
called the argument of the corporate veil, which was to say, you know, if you are working for companies
operating in a, say, in a mining project, in a low income country, the corporate structure match that only
the subsidiary company would be liable, right? The main companies, the headquarter, which would be,
say, France or the US or Israel would not be liable, because they would legally not be the same
structures. Okay. So, in terms of violations by transnational corporations get what kind of typical
violations can we think of? Can you think? What kind of rights are often cited by corporations and
transnational corporations? workers rights? Yes, labor rights, definitely.
It's the type of obligation versus the last. Okay, so if you talk to people in company, they say, Well, you
know, the labor rights issue is tricky is difficult, because, you know, we're trying to the best, and we're
trying to, you know, when we give wages, or we calculate wages in the country, I've heard this many
times, it's a, you know, what we get is actually better than some of the informal industry that's there, or
what the others are getting. And, and we are also, then the argument to say, you know, we, as a
company, we can help them, we're not the duty bearers, and we have to look at how states themselves
regulate labor. And what the answer is to say, well, you know, minimum standards are the minimum
wages with the minimum health and safety for worker standards in Bangladesh are those decided by
Bangladesh, and we're trying to actually be virtuous, we're doing better. But of course, if Bangladesh is
doing this, it's partly also because of what I spent the last two weeks, right, where Bangladesh situate
itself in the, in the global political economy, the kind of race to the bottom, and the idea that was sort of
pushed to specialize itself by trying to focus on the textile industry, which actually is producing a lot of
jobs there. But at lower and lower at the lowest possible costs, and Jade is online, but she actually
knows more about this than many others. Maybe Are you? Are you online? jpm? Maybe. Thank you.
Maybe I'll ask you in that, if you don't mind that right now. But I'm going to talk very briefly about the
Rana Plaza, and maybe you can remind telling briefly to the students in a few minutes. Just what the the
Accord is about, because I think that's an interesting violation. An interesting project actually, do you
mind? Yeah, right. No, no, just in a second. Mrs. Let's just finish the question. So workers rights with, you
know, the debates that I just mentioned, what else? Yes. environmental rights? Yes. Children's right.
Child labor. Okay. Interesting there, too. You know, we all think it's terrible. There are social movements
in Latin America, are saying rather than asking corporations to, you know, abide by standards in which
teenagers, for example, will be completely excluded from work. There are some social very interesting
work on social movements of working children who say we, we need to do it because we need to do it.
It's part of our culture. It's part of our health to our we want to help our families and rather than put us
away in the streets, you should regulate the way work is being done. You should allow us to go to school
a number of days a year. So any kind of angle you look at it. It's my point is it's not so simple, but it's it's
important to to know that there are sort of debates about this the children's right definitely there's been
a huge kind of adoption Is there are massive violations? Either Yes. Yes. Yes. Yes. Yes, absolutely. So
three days you have indigenous rights or cultural rights, you have land rights, land grabbing, that can
sometimes be, you know, jointly done by corporation with the support or the tacit support of the state.
Okay, I mean, there there, there are many forced displacements of population environmental
255
degradation. Sometimes corporations, famously have been linked to, you know, complicity in killings, or
even crimes against humanity. So the cases going at sort of this link between security forces, and private
corporations, either in
Niger Delta, Nigeria, famous case around there, or Latin America, I will try to see if I have some time
here. And the idea is that a lot of the issues are very often in developing countries and in conflict. So it's
right in conflict zones, it's, you know, often health issues. So here they are, there were two big
moments, I talked about a couple of dramas. The first one happened in the 1980s was the Bhopal Gas
Tragedy, where about 500,000 people were exposed to toxic gases. And the argument was that there
was not sufficient safety regulations. figures about how many people died is never really established.
But it took forever to try to get any form of compensation and to action in front of the Indian courts.
And that was a moment in which sort of there was a, okay, maybe when something needs to be to be
done. Another important I'm forced to go quickly. But an important moment was the Rana Plaza
collapse in 2013, in which, you know, a whole building collapse with garment industry workers, with the
idea, of course, the kind of health and safety regulation for workers were really, not only the standards
were not enough that they were not applied at all, and there were a lot a lot of famous clothing, textile
companies, brands, that you all know well, which were represented there. And JD, if you don't mind
telling your classmate just briefly what happened after because it's, it's something that is interesting to
hear about. Yeah,
so just really briefly, one month after that disaster, I think like, over 1100 people died. A lot of consumer
pressure started. So lots of people who are buying from companies like JC Penney, and Walmart and
Tesco got very upset, put a lot of pressure on those companies, which are incorporated headquartered
in Europe in the US, and basically pressured them to only buy from suppliers that joined the Accord. So a
special contractual agreement that basically enforces local Bangladeshi law and improves upon it and
basically increases the safety standards and actually enforces them.
Exactly. So, you know, significant reaction that tried to go beyond what you can see the John Oliver
video, which is to say, Oh, that's terrible, and it talks about it, and then it just shows up, people will go
go back to their, to their habits, and it's been a real effort here doing something that will include various
stakeholders and it will actually be a bit more more robust and the analysis is still ongoing as to you
know, how effective that that can be. So, if we want to understand some of the issues, the gaps that
there are, there are so in what you call the host countries, the host country of of the investment rights
company does a factory or invests in its subsidiary or joint venture corruption in some cases, there's the
idea that you know, judicial systems that selves don't have the capacity to address potential issue. And
in that sense, it's been really interesting to see this professor in the West Coast, my Hispanic spine, it's
256
as I was trying to make an argument to sort of create sort of an international court for civil torts, related
to human rights violation. Right. So, you know, a book that a legal scholar does is something that
happens. And I remember go to her presentation, and what was interesting about the proposal, which I
don't think has a chance to happen, but with the idea that when she started talking about this, she
suggested that a lot of judicial systems and she was referring especially to the boathouse credit strategy,
given the judiciary in India itself was saying, you know, it takes us a really, really long time to address,
strike, you know, some kind, of course, a really massive violations, to, to address some of these things.
It's, it's difficult, it's tricky, where you're trying to capacitated the database in order to obtain some form
of reparations for victim, it's really not. So that's something that, you know, to keep in mind that it's not
just, you know, a perceptive that, you know, local judicial mechanism that systems or are not adequate.
It's also sometimes that demand comes from some of those judicial system in the home country. So
that's where the money shows out, or the headquarters of the company are, that's the corporate veil,
which I mentioned, to talk about, but also the idea that it might be actually difficult to gather evidence
about potential violation, and therefore to repair them when they've done, you know, somewhere,
somewhere for the waves. And there's also the question that you hear sometimes in the argument that
if, if you do some of these extra territorial legislation, which is starting to happen, is this idea that you're
going to include post your standards, and then you might have some countries suggesting that it's right,
you have to abide by the French standard is 2017, French duty, vigilance, vigilance, due diligence law,
that is there, there's a number of those. And that's just one argument that you make here, here and
there. And so now you have sort of a legal framework that is in the making, you have domestic action
against states, you've had a very creative set of lawyers who have tried to basically expand the
boundaries of jurisdiction. Okay, your own law students, you know what I mean by that, the idea is to
say that rather than, you know, victim on a table to sue against defendant, which is based in her own
country, and action has happened in her own country, the idea for human rights violation. Story was to
try to sort of convince judges to allow filings of cases where human rights violation in the domestic
courts when the victim was not necessarily the National Citizen. And when you actually didn't have the
necessarily happen in the country in which the company was incorporated to famous among this is the is
the Us. Us alien came Stuart X story I told you about it, in the 1980s, a really creative us lawyers, found
in a really old statute and avenue to open the doors to
the possibility of suing in the US for violations of customary international law, even if the victim was not
a US citizen, and it damaged the violation of the outside of us. Right. The only link was that the
defendant would have to be in the US at the moment of suing. But progressively to make a long story
short, the Supreme Court narrowed and narrowed and narrowed that door until the 2013 kilberry case.
Okay, I O PCL, related to the Dutch Royal Dutch petroleum company and shell in Nigeria which was
suggesting that the company dated the Nigerian government committee, various human rights abuses in
the 90s. The Supreme Court essentially closed the door because it doesn't say that there needs to be
some form of blank link with with the US citizen much more interested defending the USMC,
substantive. There are other avenues there are people trying this in, try relatively successfully actually,
finally, recently to the Netherlands, there's a case against Germany actually went through. So there's
been a lot of sort of legal creative action that again, I don't have the time to go into detail, but it's an
interesting field of legal action. And there seems to be momentum, especially with regards to
257
environmental standards, which have not the second courts are quite more ready now to sort of take
on, that's the example of the shots. So you have a number of mediation mechanisms, some of them are
promoted, for example, by BCG, the operation for Economic Cooperation and Development, which is
based in Paris and represents essentially the middle and rich people income and rich countries, mostly
the rich countries in which you have guidelines for multinational companies. And you have, if there is a
problem, that possibility to go to what's called a national contact points and engage a procedure of
dialogue that says what happened prohibition, for example, and it's it's sort of a between mediation and
some form of, you know, one type mechanism. And this is something that is happening, you have some
actions against states, sometimes, the idea is, it's a little bit extrapolating it is to suggest that states
themselves obligations, extra territory, okay. So let me give you an example of that. Remember, the
notion of internet, it's the International Covenant on Economic social cultural rights, states have
obligation to respect people, so but also to protect, right. And the idea of the obligation to protect has
been pushed by the International Committee for economic, social and cultural rights, to basically impose
for interpreted to be imposing an obligation of states to protect these amid the violation of economic,
social and cultural rights, extra territory, right. And for that, you have an interesting new piece, which is
a general comment to remember the notion of general time, which is what these treaty monitoring
bodies do. So the general comment number 24, and 2017 explained, so it's a general comment about
the human rights state obligations with regards to the business and human rights with COVID With
regards to corporate activity, okay, so specifically focusing on that, and they try to elaborate an
argument that you have people, some people are trying to sort of push this through these treaty
monitoring bodies, to the states must prevent the infringement of economic, social and cultural rights in
the context of business activity. So they need to adopt measures to ensure the effective protection
against government rights violation linked to business activities, and to get access to remedies. There's a
focus on indigenous groups, is the idea that you need to have human rights impact assessment that
states should basically have is basically telling states what you need to do is to do what their many of
them are doing. Now you have these due diligence, extraterritorial domestic legislation, sort of French
legislation, or German visitation, that forces companies of a certain size, to look at the impacts of their
action throughout the supply chain. And if there is
a violation to address and remedies, which mitigate the adverse effects and to remedy. And there's a
whole number of things that you can meet the general common, it's actually quite interesting to see
what they what they suggest you need to domestically do some some specific regulation, you need to
establish a minimum wage and you need to regulate business activity. And he talks about this as
interesting talks about remember what I said a few times. The Human Rights Framework theory says
privatization is not per se per digit by the covenants that there needs to be strict regulations if you're
doing so. Domestic, okay. So, if I go back here, there are also associated actions associated with financial
support. So all of this is relates to what I mentioned last time with regards to the World Bank.
Remember that last time the time before the idea of the IFC performance standards If you want to have
access to financing, you need to, you know, as a company should have abide by certain standards,
there's been an influence of the IFC performance, the World Bank's IFC performance standards to the
private sector, the banking sector is adopted, let's go to Ecuador principle. And those principles are
258
voluntary guidelines that the financial industry is meant to apply to itself in order to promote
environmental, social, labor and human rights, throws, okay.
You also have the I O mechanisms of Britain. So you have reports the International Labor Organization
that there is no inviting, but you have reports and investigations. Which is, you know, a system which,
which, which would, in itself, really need to be explained more, more fully. But what I want to really
focus on now is two voluntary initiatives, there's a lot of lot of talk about voluntary initiative, the most
widespread one of those is the Global Compact, the Global Compact has been created by the UN by Kofi
Annan, and it's, you know, a list of companies sort of position themselves, they they commit to abiding
by certain certain goals and seeing it seen as part of their success. And it's also part of the story of how
that consciousness of reputation was built through these, you know, you show that you're there, then
you're actually going to be held to it. Okay. And when you publish them, you're not published as an
important one. So in terms of the action against the states, I mentioned, these treaty monitoring bodies,
so the ILO mechanisms, there are regional court systems, but there's been a few attempts to go from
digital systems, but they're quite long and costly against companies. So I went, to some extent, already a
little bit into this. You had an us the idea that, you know, if, as is often the case, it's not possible to
locally because the domestic legal system is too long, we're not effective, or we're not adequate
protection for some victims, not just for the owners of companies to protect them to human rights.
There has been so the alien tech teams taught at 13x story, which was a moment in time and stop, you
have a torture Victims Protection Act of 1991, which which does impose certain standards. These are
the these are the the impossibility of actually participating into any form of torture extra territory was
there in the in Europe, you have the Brussels regulation 2001, Russell, one regulation with big customs
with us as well, and essentially, basically allows for the extension of jurisdiction, right, you can sue the
bank, depending on you don't have to have a link between the victim and the defendants being exactly
only limited to one territory of the European Union, you can sue anywhere pretty much in the European
Union. And regardless of where the damage actually happened. So there's been a work to try to extend
jurisdiction at the level of the European Union, in terms of criminal liability. So there's movements now
around some forms of recognition of criminal liability in what's called universal jurisdiction with regards
to a number of core crimes cases. Germany, for example. But there was a moment in Spain in which
universal universal jurisdiction was recognized. And Belgium also for its moments of there's ups and
downs of universal jurisdiction, the idea that, you know, anyone can sue against anyone in Germany or
in Spain, or in Belgium, and some countries are taking the lead. And sometimes it hasn't linked with
corporate actors and the most of the time, not really, but sort of these these these moves at the level of
Europe, in particular, with regards to the extension to make sure that you can get Sue anywhere in
Europe, regardless of where damage happen is, is something that is actually legally probably the most
interesting. So the OECD guidelines for multinational enterprises, the Mishnah story, which gives the
possibility of sort of filing a complaint in order CBC the mediation in front of a national contact point, it
has some advantages. It's free quick, and it's labeled as mediation. But it's non binding and sort of the
miscibility criteria are quite highest. Okay. And the financial supports, I already mentioned this by the
World Bank, the Ecuador principles, devising October 2020 for project financing,
259
in terms of the voluntary initiative, so corporations can try to be listed on the global contacts. They've
been interested in creative lawsuits have been trying to say, okay, many companies on their website
suggest that they respect labor rights, they respect children's lives, they're respected by my clients. And
few years ago, someone tried to say, Okay, we're going to sue, because your advertising is misleading,
right? You put this on your website, and it's, it's pretty misleading. And they want to settlement in front
of the Supreme Court in the US, California, super California. Sorry, that actually, you know, last night be
much more careful. So there's one interpretation needs, that, you know, many companies are not much
more careful as to what they say, the half cup half full is to say, well, now they're actually really getting
their act together, because they want to keep what's on the website, but they want to make sure they
have a real process of difficulty, of course, and it's the same with the back of the report is how do you
how do you monitor along, you know, especially your supply chains, it's not easy. And there were a few
attempts in France to sue Samsung, with the same mechanism. Quite recently, it didn't work out to try
to sue Samsung, because of the working conditions of the workers, which were advertised to be much
better than they actually work. Sorry. It wasn't it wasn't accepted by the by the word, the courts, the
court didn't, didn't didn't. Okay, so one important thing that happened. So you have the Global
Compact, you have these big dramas, you have creative cases, you have the OECD. But an important
thing that has to be told is a story of what happens at the UN. So besides the Global Compact, which is a
set of CSR, corporate social responsibility, from therapist or company says, You don't have to tell me
we're going to do it ourselves, we're going to be better than the law, we're going to do really good.
Around 2000 2003, there was a project at the level of view and to say, you know, there's all these
scandals, globalization is really, you know, affecting possibility of the states to maneuver. And there's a
lot of features of social policy, or economic production, which are being privatized. So we need to put
out norms, we need to put out some form of legal International. And there was an attempt to build
norms. It's a very long word, that company remember, they were both the norms of internationally
binding treaty, essentially, business rights. And it largely failed, because there were disagreements
between different kinds of countries, right? There were disagreements, of course, especially by
developed countries have refused any form of imposition of binding norms, they said it would be
counterproductive to stymie hold off investment, which is necessary for poor countries to develop, etc.
So instead, you want appointed special experts, actually, with a special adviser, so the one his mandate
was, I can't remember. But essentially, his name was John Rocky, passed away last year, as a Harvard
professor, not a lawyer, interesting. And he did three years of consultation, I had the chance to meet
him when he was doing this, to try to see how we could come up with not a treaty because he will
politically fail with some form of software, right? The notion you had to look at some of those four
extreme poverty, rights at the same time 2011 guiding principles on business and human rights. And the
idea was to set up a set of principles with the idea that it would articulate the difference responsibilities
between the states and corporations with regards to human rights. Okay. And essentially this is how it
goes it's a very short movie. Wherever possible
companies operate in poor countries and post conflict countries in countries with a local governments
unable or unwilling to enforce its own laws. With all this complexity, it's not always clear who's
260
responsible for preventing a race or violating human rights. Is it the company's fault for paying less than
a living wage? Or is it the government's fault for setting the minimum wage below the poverty line?
Victims of corporate human rights abuses find themselves trapped between two actors who have no
interest in making things right. Did you doesn't live in the United Nations issued a set of principles that
define the responsibilities of governments and businesses for solving dilemma. So what did these
principles say? There's three pillars. The first says that governments have to make sure that businesses
don't violate anyone's human rights. That means passing laws that prevent human rights violations, but
also making sure these laws are implemented. Some of the world's largest multinational corporations
are owned and operated by states. The guiding principle say that governments have to prevent human
rights violations by businesses, even if the state itself is acting like one. The second pillar says that
businesses have to refrain from violating human rights wherever and however big business. That means
is not enough for companies to simply follow the law where they operate, or to audit few of their
suppliers. Even in countries where the government doesn't take up its own duty, companies have to
know that human rights impacts and take concrete steps to improve them. The guiding principles don't
offer any loopholes. Companies are responsible for all human rights, doing things like building a school
they're doing well doesn't get them out of their basic responsibility not to make their workers and
communities worse off. Companies have to perform human rights due diligence. That means talking to
the people whose life they might be affected. Like the government responsibility, respecting human
rights isn't a switch that companies can turn on and off, it's a continuous process. The third pillar of the
guiding principles is about what happens when something goes wrong. If a company abuses human
rights, governments have to make sure that the court system or some other legitimate process allows
the victims to file a complaint and that that complaint is investigated and settled. Companies have this
allegation to part of human rights due diligence is allowing people affected by the company to file
grievances and participating in processes to make the right whatever route they choose remedy
mechanisms should fit the effectiveness criteria defined by the guiding principles. If the complaint
system is slow, or it costs too much money, or it's far away, it doesn't pass. So that's what the guiding
principles on business and human rights say. So why are they important? First Principles were
unanimously approved by the UN Human Rights Council. Since then, they've been endorsed by
governments and business actors all over the world. Before we argued over who was responsible for
preventing human rights abuses by companies, thanks to the UN guiding principles, we know who's
responsible, that means that instead of arguing over the rules, we get to work implementing them okay.
So duty at the state to protect remember this notion, so you have to establish some form of regulation
domestically to make sure, there's also the idea that you have to do extraterritorial if you listen to the
committee for economic social and cultural rights. But also the idea of cooperation themselves at the
minimum implication to respect so there's this shiz away from any notion of corporations having an
obligation to fulfill the obligation to respect me and he's doing no harm. Right, no child they prefer
example or no, no support the private securities which would kill people resisting my project, for
example, and importantly, the notion the third pillar of access to reminisce. Okay, so what do you think
of it? What might be the you think? Just when you think of good, bad limits? Rates? No, no. That's not
full. It's a start, right? There is a class that was no class. Exactly. It's the one that started with water,
whether it's enough or not. Yes. So I, I completely, I mean, it depends. But I, I will tend to sort of, you
261
know, look back and two years ago, didn't equate much, we're in a different space now. And some
would say that, John Ruggie, because he was not a lawyer, but a political scientist, was really good.
Actually, I tried to figure out how gnomes will eventually fight and be endorsed by the players rather
than sort of forcing them. And there is an argument that was successful in a way, right, because a lot of
these, although it was soft, low became adopted by local law corporations that deliver these principles
in their CSR. They're out there waiting, representing their voluntary commitments. But also, and I'm
going to finish with this in a couple of minutes. Because as a reaction to this, or an application of this,
they are now biting pieces of legislation, domestic legislation with extraterritorial reach that say, you
remember the question I asked the issuer? I said, What do you think, as I remember, he, like all the big
French corporations were hell bent against this law. The functional and unexplained sales that you now
recognize is to remember the early but it's not it's not bad, actually. Because it sort of specifies what
people have to do it in a way it helps him in his job saying, hey, it's not just me there shouting, it's the
law becomes compliance. There is, however, a number of people who suggest that, so maybe it's a bit as
forced to Parliament now that it was non binding, and it remains, you know, very limited, there was not
a lot of water in the class, once, and the idea, especially in the oil by a number of scholars, and lawyers,
and also by a number of countries, especially Latin American countries, Ecuador, for example, a number
of other countries, suggested that you need to go further and actually come up with a legally binding
treaty, the treaty to the ratification coming into force and the monitoring, treaty monitoring body,
eventually to reach into something. So like, really ambitious. And these are the steps and you can look at
it. But there is now a third revised draft, which is going on around and it really essentially tried to
translate this and make make it into a binding treaty, I remain quite skeptical a bit politically having a
chance to work, especially now. But so the argument could be, because there is this bit, it's there, and it
hasn't disappeared, maybe it's one of the reasons for which some states have actually decided to do
their own to do this on their own terms and to implement legislation that will force large company with
transnational activity to essentially monitor their supply chain and their activities to address mitigate the
adverse impacts in terms of human rights and environmental standards. Okay. So this is a just an
overview of the
sequence. And those are useful to know if you're ever going to work in this field, or if you want to do
some research in this field. So California was was was an early, early example with the transparency of
supply chain acts, then the UN guiding principle in 2011. And he guidelines for the multinational
enterprise by the OECD, which sets up this mediation with national points of contact system was
updated to include human rights more directly. In 2014, you had a directive directly, basically EU
legislation that then has to be adopted by all states on the idea that companies have to do some what's
called nonfederal extra financial reporting that to talk about all these non financial things that they're
doing and not doing 2015 and import One piece of legislation in the UK modern slavery Act, which
focused on specific issues of product slavery and labor, and came up with a system that was relatively
close to the California one in which companies had to, essentially were pushed and incentivize to be
transparent, and to really look at what they were doing to really examine their supply chain, and try to,
you know, publish, how they were monitoring, monitoring things, and it was seen as sort of, you know,
flexible kind of approach, which was more working by incentive, that sort of hitting companies with
ascension. And when when I, when I started working with our clinic in France, the debate was about,
262
well, we need all the companies through the dispatch permission, we're saying, we need something like
this, it's pragmatic, it's Anglo Saxon, they will otherwise if we impose something with sanctions on
French companies, we're going to be non competitive, right, we're going to be under the, you know, the
menace of law. Whereas all our competitors can just publish things or, you know, so we, you know, so
that was, that was a big, big, big part of the argument in France. But eventually France was the first
European country to actually sort of, say, in the lives of safety, we're trying to apply the UN guiding
principles to the principle and impose a law on the corporate duty of vigilance companies bigger than
five times and employees have to basically publish a plan of due diligence and show how they're actually
going to monitor the adverse impacts of their, you know, their entire value chain supply chain, and the
dress, redress the possible adverse mitigates the adverse consequences, or offers and avenues for
redress. And the idea is that if they don't, they don't, or if they're planning vigilant, they seem to be
insufficient, they can come under fire. So the fines are not huge as a lot of debate above it. But there is
no strategic modification to the particular petroleum group. Our clinic has been working on this with a
number of NGOs, and we'll see how the judges react to that. But that's the law that has is domestic that
has extraterritorial reach, essentially targets large transnational corporations and forces them to sort of
come up with a plan and with some mechanisms of monitoring. Since then, there's been more stuff in
Australia.
In Canada, in the Netherlands, in in Switzerland, you had a proposal to the responsible business
initiative, which came up and then was rejected by a referendum, an important piece of legislation came
into force in 2001. It's the the scope of supply supply chain in Germany was voted in 2021. It comes into
the for loop on exports in 2024. Yeah, the supply chain acts. So will apply to companies with a head
office or branch office in Germany that have more than 3000 employees and for 2024, to those with
more than 1000 employees, okay, and introduces the possibility for victims of human rights violation to
assert their rights before joining forces with trade unions and NGOs. So human rights lawyers saying that
it's limited because you have to act with an NGO, or union to claim but it's, it is something I don't have
the time to go into the detail. Each legislation is different, depending on the size, depending on how far
it goes in the supply chain, does a company have to go and look at only its immediate supply or further
down in the supply chain. In Germany, it's only the direct supplier. And it was criticized because a lot of
the violations happened at the beginning of the chain, right, for example, in extracting process or labor
processes. So, you know, they only go so far, but there is a class right, it is happening and it's not
nothing. An important. You know, an important piece of action is happening on the level of the EU. In
2020 21. There was a un EU commissioner who suggested that there should be a European wide
directive, meaning a piece of legislation that would then be imposed on European countries that would
make mandatory at the EU level. These forms of due diligence was partly inspired by the French
legislation. It's in its spirits. It was very much pushed by a positioning of though that took place in March
2021 and the European Parliament's that really strong He pushed for the adoption of such a piece of
legislation by the EU Commission. But it's still, you know, a Draft Draft committee will have to be
adopted by a European Parliament and European Council, which is the states will get sets. And just to
give you a couple of elements on this on how it's looking at the moment.
263
So it would concern both EU and non EU businesses. So EU businesses with more than 500 employees
on average, and net will while turnover of more than 150 million euros EU businesses with more than
250 employees on average. And that's one way to earn more than 40 rows where at least 50% of his
turnover is generated in one or two of the more following seconds. And he lists the number of sectors
right fisheries, agriculture extractive industries indicated, they also concerns non EU business with a net
turnover of more than 150 million euros in the EU. So if you're not your business has a big turnover in
the EU then it is concerning. So it applies to its that will be important. And also non EU businesses with a
net turnover of more than 14 million, but not more than 150 million in the EU, where at least 50% of its
net worldwide turnover generated in the sector, same kind of this electors of sectors. And what why
would we have to do, they will have businesses will have a corporate due diligence duty to identify,
bring in and prevent, mitigate and account for adverse human rights and environmental impacts in their
own operation, subsidiaries and value chains. So if you have any successful and established business
relationship, it can go quite further along the chain. So there's many things that they're doing. And the
last thing I want to mention is it's your LinkedIn that we're going to do. Tomorrow, it says this against
the current truck. In addition, eu businesses with more than 500 employees on average and global
turnover more than 150 million, as well as non EU businesses with a net turn over more than 150
million, you must adopt some big ones must adopt a plan to ensure that its business model and strategy
are compatible with the transition to a sustainable economy in the delimiting of global warming to 1.5
degrees in line with the Paris Agreement. So that's the bigger ones, there's this added demand that
seems to have made itself part of the EU directive draft. So a lot of action. And of course, there's going
to be a lot of interesting litigation that is going to come out of it. And I would say over the next few
years. It's an area to watch. And definitely with regards to environmental damages, it's something in
which litigation is happening. And when courts is what's more, I think more ready to open. This is a good
resource to ever want to follow. This is called business acumen right center. And I was going to add
something on human rights impact assessment that's related to the piece that I had put in the is an
optional one. But if you have questions about this,
conventions, or
Okay, we're done. So tomorrow, we'll be on Zoom, I will say two things tomorrow about the exam, I just
need to double check one favor with the administration that enjoy general the way I imagined the exam
to be to take on exam in which you have three questions you can choose, you need to choose two out of
three is a limited workout for each question. It's not very long. And the questions are not about ask you
about one specific case that I mentioned in part of a session, they're all going to be overlapping at least
two if not more sessions, it's sort of revise you have to basically go through this material and read your
notes. And there's sort of a transversal questions that you need to show that you have a grasp of the
overall material rather than just you know, one very specific example. You can give examples. Of course
264
you can, you can cite some of the reading materials. You don't have to give me the horse, you know,
page 895 or whatever. You're quoting Amartya Sen. Sam, you can put it in parenthesis. I know the
literature so it's fine. So you'd have to sort of both show that you gain a mastery of the material but you
can also show that you actually build an argument. Right response to your question. Okay. Thank you.
Yes.
Sorry, the date I this is what I don't want to say something as well I'm going to verify now.
So I you know for me it's I don't have so that's what I wanted to share what to change sets when it's
going to be given I usually give this exam for my students they have either 24 or 48 hours. The idea is to
give you flexibility that you don't have to work. I think two three hours is enough to respond to the
exam. But I don't know if I don't know what the rules are here. Do you have some take home exams and
other published 24 hours? Extended Do you sometimes have 48 hours 72 hours so maybe I don't have a
problem with that I'm not with the with the with what is usually done but I don't have a problem getting
four hours it gives more flexibility. I'll make it more flexible so we'll make it we'll make I'll check that we
can and if so what they did for you
Class 12
Hello, everyone.
265
It's nice to connect again with you. Although I wish we could have had us nice occasion to meet in our
last class together in Tel Aviv. I have tried to organize with the administration live zoom session so that
we can have a last interactive session. Unfortunately, this was not possible because of a conflict of
scheduled. So I've been asked by the administration to record a session. So I will do this, it will be more
of a lecture than, you know, the exercises and the dialogue, that plan but I hope it will be useful to you.
So what I'm going to do is actually to share a slide I will even cut my video because you don't need to
actually see me but this lesson, and of course, you can go faster or go back. Depending on how much
you you already know. Remember that for this class. You know, as for all classes, it's important to have
read the materials. And this is in many way a comment on some of these and also an opportunity to give
you sort of a map of the many various things that are going on in the field that we're looking at today,
which is the relationship between human rights and environmental and ecological to be broader than
just environmental issues. So I will share a slide now.
Just give me one second, thank you, when you can accelerate on Zoom, of course. And I of course
cannot find it one moment. Apologies for this. Okay,
so the class is entitled A human rights to a healthy environment, but it will essentially do the following.
So
most of it is to give you sort of a sense of what can be called really a moving field every possible day or
month, you can listen to new developments. It's very exciting for lawyers, because lawyers seems to be
at the avant garde at the cutting edge in many ways of environmental justice, and climate justice
troubles, I'm going to try to give you a sense. The idea here is not for you to learn by heart, all the dates
of all the cases. And some of them are actually still unfolding. But I'm going to try to give you a sense of
you know, the main ones and also a bit of the reasoning, that's more interesting to think, than learning
especially in all the procedural aspects of it, domestic transnational, and also attempts to build an
international regime with the notion of a human right to health environment. And, and just a few
comments, I had a whole exercise plan to sort of discuss the politics behind it, of both environmental
and climate justice, relationship with inequality. And I'll just say a word, maybe at the end for this class.
Okay.
266
So the
the main thing I want to start with is to sort of rewind very, very briefly after the last class that we had
was on business and human rights. And the idea here is to give you again, an overview, which is
insufficient, because there's so many, so much going on at the moment of the attempt to essentially
address key environmental and ecological issues. In terms of main environmental issues. You saw it in
the first readings from the economists. You know that the main issues today that are talked about are
climate change the loss of biodiversity and air pollution, but there are more structural ecological issues
with some people suggesting that we're really moving into a new era in which you know that the effects
of man's activity on nature or are really, largely damaging. So attempts to address key environmental
and ecological issues through law, and in particular rights, talk rights based approaches or rights based
actions, which seems to be particularly interesting at the moment. So as always, in this class, we sort of
have a double objective, which is to get a sense of the variety of the approaches, connected and
distinguished Then, but also to raise questions about their impact and or their limits. Okay, I think you
got the way we reason in this class, hopefully, that in general. So we've done this, if you remember, after
a sort of opening sequence of classes in which we explored concepts of development, inequality,
poverty, human rights, we went into the history and dialectic between development and human rights.
Remember, first, it's articulated essentially two separate fields and as needed to be traded off one
against each other. Remember the needs equality, liberty trade offs. And then more recently on the
country, human rights and development conceptualized as being more intrinsically as well as
instrumentally, Amartya Sen, related to each other, and this is the framing, conceptual but also in terms
of actual policies of human rights based approaches to many things, including development. And we
then looked at examples in practice of some of the pros and cons or what these rights based approaches
have brought and their limits, we looked at that especially for example, in the context of human rights in
the World Bank, we looked at the difference between classic human rights based approaches which
focus essentially a lot on, you know, accountability, empowerment, non discrimination, and the
important notion of participation. And we, we distinguish this from sort of more political or claims
participation, rather than just consultation, limited rights based approaches, we looked at rights based
approaches to COVID and post COVID. Questioning, you know, how radical it was, whether it was just
about sort of minimum core approaches, or something that was more radical about, you know,
expansive notion of equality and redistribution through economic, social and cultural rights. And we
finally explored human rights and transnational corporations, we had our friend from Nishina. Come
over through zoom to our class. And we discussed last time, the Oh, an overview of the overall
framework, the evolution of a framework in which human rights become part of the way businesses are
asked to think, including, of course, Corporate Social Responsibility is the elaboration of the UN guiding
principles on business and human rights to John Ruggie principles, parallel efforts towards doing actually
a binding treaty. But interestingly, and more recently, domestic legislation with extraterritorial reach,
which are implementing the idea of human rights due diligence by companies, human rights impact
assessments, or human rights due diligence, which is something I'll briefly touch on again.
267
So what we're going to explore today is together is if and if so, how human rights, rights approaches,
strategies language, can actually help address or try to address the ongoing triple environmental crisis I
mentioned, or crisis in the plural of climate change, pollution, air pollution, loss of biodiversity, with
especially a focus on climate change today, okay, with two related questions I have I at least have in the
back is always how do these different crisis changed the arguments for or against rights based
approaches, the one I just mentioned, and which we've discussed at length throughout the semester,
and notably, when we discussed COVID, as well as business and human rights, will rights based
approaches to the environment or to climate change, help to actually politicize the fight for
environmental and climate justice? And if so, in which direction and how far or willing around the
country and that's one of the potential critiques of rights based approaches remember the idea that the
you know, it brings everything into sort of legal reasoning or technocratic categories, will it depoliticize
the fights for the protection of the environment or,
you know,
potentially, you know, depoliticize social, the social justice aspects of the struggle to protect the
environment. This is related, of course, to the optional reading that I gave to you about why human
rights impact assessments, my piece, actually, if you want to read it, which talks about that in the
context of how human rights based approaches human rights impact assessments, for example, may
depoliticize the fight against poverty, it's at the end of peace. So, as a result of all of this another
question, do we need to fully rethink human rights and rights based approaches visa vie these
environmental and ecological challenges? And I will mention, you know, recent literature that has called
on climate tising human rights, which is about you know, really completely rethink the way we articulate
and push human rights The author is Cesar Rodriguez Scara Vito which, which is an author of the piece
that we had to read for today. But his more recent piece talks about this. And if you're interested, you
can look it up online, just right type climatized human rights, it's really interesting. So we'll look at it the
way human rights law or language can be harnessed to promote environmental or climate change
justice in both domestic and transnational context. With the idea of, you know, environmental justice or
climate justice, involving, you know, using law and justice, of course, to solve disputes, but also the idea
of, of justice in terms of distribution of the burdens of environmental burdens, or climate change
burdens on different categories of either countries, or different categories of, or different segments of
society, and the injustice, for example, that often happens either between countries or between more
marginalized or exposed populations, which have, which had been widely documented. So we'll discuss
and try to map out the ongoing flurry of strategies domestic transnational International, which are at
play with particular efforts on recent efforts by international human rights actors to conceptualize and
operationalize at the international level of human rights to a healthy environment, which is already in
play in regional, domestic and sometimes sub domestics of domestic context. I'm thinking of the states
268
that you know, more than 50 states in the US like New York or Rhode Island, for example. And, as I said,
Finally, I'll say a word about the evolving landscape of politics. So if we were in class, I would first ask to
you and that is really the
that the first
slide, which is you know, which human rights might be affected by environmental damages by
environmental damages in January's damages, for example, you know, spillover of a, of an oil factory?
What about climate change? And can human rights help? So typically, you they're sitting in a classroom
talking into groups, and are just telling me, we don't, we're not able to do this. So I'll just cite a few,
which are actually listed in a famous report by the UN Special Rapporteur on extreme poverty and
human rights was then Philip Alston in 2019. The right to life, liberty and security of millions of people
mostly in the Global South, with the idea that many of those are not actually responsible for the next
emissions, for example, or the spill overs, or negative externalities, as they would call be called, in
economic terms, the right to work the right to an education, the right to own property, more than 21
point 5 million people displaced per year, according to the UNHCR, and that actually probably has
changed since the last figure. More, the figures said that it was more than because of violent conflicts, of
course, the Ukraine, maybe change that someone the right to nationhood, for example, for islands that
have a sea levels, which are rising, this is an argument that you see sometimes in actual cases. And the
idea is really to say, you know, the climate emergency in particular, is really having an impact on human
rights. And then the question is, Can human rights actually help address this emergency? Okay, so, in
terms of, you know, mapping the field, one way to start is by looking at domestic legal strategy. Okay. So
in terms of domestic, one will often think about, you know, litigation, of course, there's a lot of climate
inaction, legal cases, which I'll get back to so the, you know, suing the state in particular various states
for not acting fast enough on their climate and other environmental objectives, but particularly with
regards to their commitments to the Paris Agreement. Very often, you know, pushed for and done
jointly, very interestingly from the perspective of advocacy strategies with social movements. Extinction
rebellion Friday's for the future, you know, many of these but before we go that and this is when the
piece that you have to read by Senator Rodriguez go veto does is that you know, 111 way to think
change things legally. One thing that many, many constitutional many legal cases actually try to enshrine
or sometimes you have
to radically shift I'm sorry, you had a little technical issue here.
269
So many political parties, for example, in the European election, how long have you had political parties
which tried to sort of put on their platform, a change in the constitution. So many states now
incorporate actually a right to a healthy environment in their constitutions, right. And the some of the
most recent reports talk about the fact that more than 100 states have incorporated some form of
environmental legislations. And it's about 150 561, I think, even in the last account have already
established legal recognition of a right in some form to a healthy and sustainable environment. It's often
recognized in constitutional rights as a with reference to health, but also to in terms of a right to an
ecologically balanced environment. In Brazil, for example, you have sometimes advice to clean, safe and
favorable and wholesome environment. And in particular, in African countries, you have substantive
constitutional rights to healthy environments, which are really interesting. And then just before we go in
and look at the slides, sub national governments in the US, Hawaii, Illinois, Massachusetts, Montana, and
recently, November 2021, New York and state of New York has adopted a substantive, you know, at the
level of the state, right to healthy environment, despite the fact that there's no such rights in the federal
constitution. If you look at the South African constitution, very sort of, you know, progressive
constitution. A famous example is section 24, which says that everyone has an invite a right to an
environment that is not harmful to their health, their well being, to have the environment protected for
the benefit of present and future generations through reasonable legislative and other measures, which
prevent pollution and ecological degradation, promote conservation. And here, this is interesting,
secure, ecologically sustainable development, and use of natural resources while promoting justifiable
economic and social development. And it's interesting, because it seems to sort of bring together the
notion of sustainability and economic development. And the question here is, you know, whether that is
actually feasible, whether there's not a tension really here. And, you know, people who are proponents
of, for example, D growth theory or a growth theory, the idea that, you know, really, we just need to
stop growing, might have an issue with that. But of course, the question here is, we're talking about
South Africa and South Africa, as emerging economies, and in some parts of South Africa, they definitely
see a developing economy. This is the argument that a lot of countries like India are putting together,
the right to develop the right to development is often opposed to the idea of, you know, the protection
of the environment. So this, of course, is a really interesting north south tension, which we will get back
at, in France. So not that you need to know this. But it's an interesting example and one which I know so
it's in French, but don't Don't worry, I will, of course, translate this, there is the notion of the
precautionary principle, right, the precautionary principle was, you know, instituted in the 1970s. And
then in the in the 1990s, in the Maastricht Treaty, for example, for the European Union, and in France in
1995. And Ian Hart now has a constitutional value and essentially says that, you know, if there's a
possibility that a damage may be caused, public authorities have to apply the precautionary principle,
meaning that you have to evaluate the risk and the measure that are proportionate in order to avoid the
realization of the damage, right. So if you're not sure it's going to harm the environment, then you try to
anticipate, evaluate risk, mitigate them or even just don't not do it. Okay.
And then, in the latest European election, for example, the, you know, Green Party was really in France,
for example, talking in constitutional terms pushing for the adoption of new constitutional articles. One
last thing I want to mention is the Kumasi 20 Kumasi plan is interesting it's in France, sort of a citizens
assembly of regular citizens drafted return regular regular citizens, which was called on after the yellow
270
vest movement. The yellow vest movement had been triggered in large part by the move to tax fuel on
The basis of you know, ecological taxation, but also reduce speed in rural and semi rural areas, and it,
you know, generated a large social movement against it, because of, you know, the idea that those
people living in semi rural areas were, were asked to, you know, pay, they needed the the automobiles,
and they were sort of being hit more than people living on, you know, bicycles in their cities, and
generally more accurately, and interestingly, that conventional citizen that said, citizens assembly, try to
respond this, to this tension between environmental and social priorities and concepts. And one of the
responses, of course, was legal, it was the proposition of a constitutional amendment, that the preamble
of the Constitution should include the notion that the consolation conciliation, sort of the combination
of rights, freedoms and principles, that results from the constitution should not compromise the
preservation of the environment, which is a common heritage of humanity, and that the first article of
the Constitution itself should say that the Republic of France Republic actually guarantees the
preservation of biodiversity of the environment, and of the struggle against climate that eglomise that
the unfolding of climate. Okay. So that's one thing, then there are a number of cases, which you may or
may not have heard of, and you don't necessarily need to know them. diehards and neither their dates
I'm not, you know, that particular you can just cite their name. I will brackets the Colombian 2018 case,
because I will get back to it later. But then the one that really started things, at least in Europe and really
had a lot of impact for in our clinic in Strasbourg, for example, we have, you know, organizations come
to us and hush, hush, tell us, you know, that there's this case in the Netherlands where, you know,
they're, they're suing the state, maybe we could do this in France to in our clinic, you know,
actually decided to get on board. And we were part of the French climate litigation a few years later, but
the procedure has various steps, you know, with appeal and confirmation at the highest level of the
Supreme Court in the Netherlands, it's called the organda, you are at year end a case. And it catalyzed a
lot of action. Okay. So it basically suggested that the, you know, the Supreme Court in 2019, in the
Netherlands complaint, confirm that the bet Dutch states, so it's a lot of sort of public law, acted illegally
and in violation of a duty of due diligence, and ordered, it's the court ordered, its reducing greenhouse
gas emissions more quickly than plan. And it was interpreted as a legal obligation for the government to
take action to protect its citizens from the consequences of climate change. Right. So that's a really
important case to to know about. In France, there have been two parallel cases roughly between 2018
and now. One is called, you know, it's called la salle de SIAC. Because it was it was it was basically a
coalition of NGOs, which also put a huge petition online, which was signed by more than 2 million
people in France was the biggest, you know, hit in terms of a petition ever sign in France. And another
one that was in front of the administrative Administrative Tribunal, for the first instance, Administrative
Court in France and the community concert concert, sorry, was another case brought in front of the
consent data, which is the ministry of Supreme Court. And the strategies are interesting. They were
basically the NGOs that work and the lawyers that work together, try to sort of sandwich if you want the
French state one, this is LaSalle, this yak by trying to sort of have the French state condemned for not
using its executive power house with teeth. That's how you call it in administrative law in France, but for
failing to use executive power. And in respect, the commitment is made in the in the Paris Agreement.
So it's sort of looking back at what the French government had done and saying you haven't done
enough. The second one that got sent was basically SRE and the data does check sort of the
271
argumentation was, you know, lack of executive power and recreation of a an ecological and
environmental prejudice, so asking for damages for actually not a repair for not actually respecting the
commitment to political policy commitments that made, whereas the other case was more sort of
looking forward and suggesting that the strategy that the French government has put together does not
align with the goals of climate neutrality. So carbon neutrality, for example, after a certain number of
years, so that's really the key things that you need to know at this stage, you don't need to go
necessarily into the into the details. There were interesting remedies. Sometimes at one point in the in
one of the procedures different state was, was asked to pay basically a 10 million euros each semester
and had six months to actually come together with a plan. And various different interesting remedies
were used. But basically, it was trying to push the state for actually not taking into consideration the
commitments and did in Paris. So legally, the administrative courts and France then suggest that the
Paris Agreement, this is just French internal, no, you don't need to know it didn't actually directly have
an illegal impact in French law, but that the Paris Agreement, the commitment to limit, climate change
under two degrees Celsius, and if possible, 1.5 degrees has to be taken into consideration in the
interpretation of French law. And that is, you know, something that a lot of lawyers in France called as
historical because this this, this, this commitment in Paris, the status, the status of it as a really binding
treaty, or the sort of something more of a soft law kind has been disputed. And in this case, it was
suggested that it could be interpreted to have an impact on the way you interpret a French law. So the
anyway, I'm going to happen, there's many really interesting, fascinating debates in France about this,
but just know that the the action is sort of ongoing, and we at our clinical transport, for example, we're
still working with some of the NGOs. And the idea is still we need to push the state to be, you know,
condemned to repair its failure to do take action and take executive action, but mostly also to push it to
actually come up with strategies that are, you know, in line with its commitment, in terms of climate,
and especially greenhouse gas emission
reduction goals.
Another very important moment, in April 2021, the German Constitutional Court really stunned a lot of
observers, because it wasn't really awaited. There was a plate in finding a swing by young plaintiffs
would challenge to challenge the country's climate law by holding the national climate targets and the
annual emissions amount which were allowed by the by the by this act, which was called the Federal
Climate Change Act until 2033. Zero, or incompatible with fundamental rights insofar as they lack
sufficient specifications for further emission reductions. From 2031 onwards, it's the same thing as the
second half of the same thing as a second French case. It's really pushing the state to say, Well, you're
not doing enough in the future. So the court here prompted the government to increase his 230
272
greenhouse gas emissions reduction target, and to specify further the increases thereafter and move up
to date of net carbon neutrality to 2045. So really, basically pushing the states to speed up, speed up
and get its act together. What's been interesting, of course, is that in parallel to this, you've had
domestic lawsuits not just against states but against transnational corporations Corporation. We've
talked about business and human rights. Last time, I talked to you about the fact that some of the
domestic legislation with extraterritorial reach such as the French, for example, the French law on duty
of vigilance, which forces big companies to essentially come up with an action plan to check whether
they might be imposing damages human rights, labor or environmental damages abroad, along their
entire supply chain. Same thing with a recent German, and in a few years, probably a European wide
kind of regulation direct European directive which will impose on states to do this. And we've seen as I
told you last time, that there are cases that are which are testing these For instance, but it's not sure yet
whether a lot of a lot of judges are ready despite these new legislation to sort of break what was called a
corporate veil, which we talked about last time, and to actually condemn directly corporations for their
failure to monitor human rights violation for their failure directly to respect human rights themselves.
But for environmental issues, there seem to be more of a readiness by judges, we can see how
surprisingly, they were ready to condemn states. But they seem also to perhaps because there's a
broader political coalition, one might think they seem to be quite ready to actually take on big
transnational corporation when it comes to, especially air pollution and climate change. So the big cases,
which which which you've already probably heard about is media defense, versus via Royal Dutch cell in
2019. In the Netherlands, there's an ongoing case in France, which is, again, this NGO that we work with,
which is called NASA tos and other NGOs versus Totara, which is the big petroleum French Cholan
company, in which you know, the terms of procedure is important because a specific kind of court is
agreed to look at this directly. And you had in your readings, column by a number of human rights
actors, which are basically telling big corporate, big petroleum companies in particular See you in court,
meaning that all of these climate litigations versus transnational corporations are going to be in there,
just you know, you know, going to come one after the other in terms of the Dutch, again, the Dutch case
in the, you know, the tribunal here in the Hey, condemn shell to reduce its emissions of co2, carbon
dioxide, which resulted not only of its own activity, but its entire supply chains, in order and it was very
specific to reach a target of 45 reduction in 2030. These are the 2019. And it builds on the organda case
against the state, which had found that the Dutch government in adequate action on climate change
had violated a duty of care. Right. And the idea here is that the argument is,
is is based on Article 6162 of the Dutch Civil Code, as further informed by articles two and eight of the
European Convention on Human Rights which guarantee the rights to life are equal to the rights to
private life, family life, home and the right to correspondence. That's article eight. And the idea is to
suggest that Shell's long knowledge of climate change, misleading statements on climate change and
inadequate action to reduce climate change, have been helped support the finding of shells unlawful,
endanger moments of Dutch citizens and actions constituting hazardous negligence. Okay. So I won't
dwell too much on the total action in France, it's ongoing, but it's the same idea to actually push the big
petroleum company, both through the duty and village vigilance and also directly with regards to its, you
know, emissions target. One element that you've probably maybe I've read recently in the press is that
there is a concern that pushed by these legal strategies, a lot of these big Western petroleum,
273
transnational corporations are sort of, you know, mitigating their impact by selling some of their solid
some of their their fields or production sites, to other petroleum companies, some of which may not be,
as, you know, you know, highlighted or on the spot or might come from countries which don't have
these transnational extraterritorial trends, transnational, sorry, domestic legislation with extraterritorial
reach such as France and the UK or Germany. And as a result, there is a you know, a worry that actually
productive fossil fuel production will actually continue to increase because it won't be total or shell but
it will be some less known petroleum companies or smaller petroleum companies, which don't really
have either a CSR which do not come under these business and human rights, new legislation. So that's
something to of course, keep an eye on Transnational strategies. A few have been attempted one you
might have heard about between 2019 and 21. It's called the Greta and friends is in the press. Formally,
it's called saqi and others vs Argentina and others. And essentially, the idea was to try to draw on what
we've what we've learned in this class. So 16 Children filed a petition, which alleged that Argentina,
Brazil, France, Germany and Turkey have violated their rights under the United conventions, knighted
Nations Convention on the Rights of the Child, right that CRC remember that one the most sign the
national human rights treaty, and ratified in the world by making insufficient cuts to greenhouse gases
and failing to encourage the world's biggest emitters to curb carbon pollution. Right. So traditional claim
that climate change has led to the violation of their rights under the convention, including the right to
life, health, and the prioritization of the child's best interests, as well as the cultural rights of petitioners
from indigenous community. Communities. The petition asserted that the country has had four related
obligations under the convention, first to prevent foreseeable domestic and extraterritorial human
rights violations resulting from climate change. Second, to cooperate internationally in the face of global
climate change emergent climate emergency, three, to apply the precautionary principle and for to
ensure intergenerational justice for children and posterity. So that argument is one that is often used
now, in legal cases, that there's an intergenerational justice, you know, we might be fine polluting now,
but what about our children? So that's, you know, a sort of innovation here. And one of the most
famous one arguments was there. The argument was that the Committee
on the Rights of the child would have jurisdiction because the children are quote, unquote, directly and
foreseeable, injured by greenhouse gas emission emissions originating in the various countries, which
are called the respondents territories, okay, so even you know, even if they're not, they're actually the
those children were in the jurisdiction, they are in a territory in which the greenhouse gas emission
would affect them. Second, the claims are manifestly well founded because the children are suffering
direct and personal harms now, and will continue to do so in the foreseeable future. And also, they
added that pursuing domestic remedies or trying to go in courts domestically will be future, while
because, of course, fossil fuel emissions do not necessarily have boundaries. And it might be difficult to
address this just by going to one, one tribunal, but it can be many other rights of the child, I would have
asked you that, you know, what, what would you have done, but the Committee on the Rights of child
rejected the claim, actually, as inadmissible. So that was the argument here, the response for Argentina,
Brazil, France and Germany, it was alleged that the committee had a lack of jurisdiction. Why? Because
there had been no exhaustion of domestic remedies. And you remember that the whole procedure, in
order for you to go to one of these treaty monitoring bodies, which the Committee on the Rights of the
Child is, you have to exhaust domestic remedies? First, you have to give a chance to the states to do
274
well, is even through their for their courts. So there was an argument that there was, you know, from
the perspective of of greenhouse gas emission, it was completely not useful to do so. But the response
which was argued by the state and which was accepted, actually, this is why the Committee on the Child
Rights of the Child declared the case it admissible was that there hadn't been an exhaustion of lack of
domestic remedy. The other arguments was that there was unsafe unsubstantiated argument because
the causal link between emissions in one country and the damages that were alleged were difficult to
prove that's always an issue. And also that many countries have contributed to climate change that
other actors, including the biggest polluting states and biggest corporations, were not part of the case.
And they suggested the better approach might need to go through states instead of directly to this
international treaty monitoring body. And another argument, which you hear here, again, is that
development is also necessary to protect human rights. And if you push too much on environmental
efforts, it could undermine development, which for some countries is of course, arguably a priority.
Okay, so an October 2001. The committee rejected the claim as an invisible but it accepted the
argument so inadmissible because you haven't exhausted local domestic remedy, but it accepted the
arguments that states are legally responsible for the harmful effects of emissions originating in their
territory or on children outside their borders. And the fact that all states are causing climate change
does not states have individual responsibility to reduce their own share of emissions. And the
committee also found that the youth are victims of foreseeable threats than the rights of life, health and
culture. It also found that countries have extra territorial responsibilities related to carbon pollution.
And then when trans boundary harm occurs, children are under the produce the jurisdiction of the state
on whose territory the admissions are originated. If there is a causal link, this is what the states were
arguing against, if there is a causal link between the acts or omissions of the state in question, and on
one hand, and the negative impact on the rights of children located outside territories, when the states
of origin exercise effective control over the sources of emission in question. So that's a criteria which is
added here, which is, of course, not easy. Proof. But again, it held that it was in basically admissible
because of failure to exhaust local domestic remedy because it didn't want to harm the entire
architecture of, of the international human rights system protection in which the legitimacy of these
treaty monitoring bodies would only it's already not technically binding. But the worry was that if you
don't allow states to sort of treat
these cases with a domestic worth, it would basically go nowhere. So that's an important and interesting
set of arguments, regionally. Some regional mechanisms, which have been interesting, the African
charter, 1981, artifact and charter article 24, all people shall have the right to general satisfactory
environment environment favorable to their development. And this you can see it in the in the reading
that you had for today. This was you know, at the heart of the first time the African Commission on
Human and People's Rights were actually, you know, seized by a serratus social and economic rights
Action Center, which is the biggest Nigerian social and economic rights organization along with an
organization called the Center for economic and social rights, which is an international organizations.
They went after Nigeria, with regards to, you know, pollution that happened in the Niger Delta and
affected the Ogoni people. And you can read about this, have you read about it in the reading, it's
actually a really interesting, it was the first time that the African commission proclaiming given meaning
sorry, to the article 24. In that case, there is another case that you might have heard about, which is
275
Agustina, and others versus Portugal and others in the front of the European Court of Human Rights.
You have it all here in the in the slide, the right to life and private family, increasing effects over lifetime,
the idea that increasing effects over lifetime would entail a discrimination on the grounds of age. That is,
you know, the based on Article 14, two and eight of the European Convention on rights, and it was
suggesting that the respondents, the countries, including the US, pretty much all countries of the
European Union, were failing to sufficiently reduce their territorial emissions and further take
responsibility for the contribution to overseas emissions entailed by their exports of fossil fuels, the
import of goods containing embodied carbon contributions to emissions abroad have entities domiciled
within their respective jurisdiction, for example, via fossil fuel extraction elsewhere, or its financing. So
this is again, you don't need to know much about the procedure, but know about the existence of this
case and of the especially the kinds of innovative arguments that had been done, okay.
Now,
another approach that I'm going to go quite fast. And this one is the idea of trying to draw on
extraterritorial obligations, extraterritorial obligations. First of all, I've states so the one one general
comments which we looked at last time, it's in the slides of the last session. General comments 24 on
business and human rights, suggests that states might have an extraterritorial duty with regards to their
obligation to protect economic, social and cultural rights, so to regulate the activities for example, of
transnational companies, in terms of the possible violations abroad, and this notion of extraterritorial
due diligence. This is related to the notion of human rights impact. assessment, which is included in the
UN guiding principles on business and human rights, the idea that you have, you know, businesses have
to respect human rights and remedy, provide remedies, but also have to provide and promote due
diligence as a mechanism to anticipate prevent, mitigate, remedy, communicate, and monitors, there's a
lot of things together. And the slides, you can go through them, they detail a little bit what you know,
when businesses are asked to do so there's states on the one hand, but there's businesses with the idea
of, of human rights impact assessments. And the result of that we discussed last time, were in large part,
the progressive adoption, you remember the slide in which we looked, you know, at the UK, Australia,
and Switzerland, failing France in 2017, and now all the way to the European Union. And the question
here is, you know, whether, of course, there might be some transnational litigation strategies that might
come out of it. And I told you, for example, in France, there is no attempt to try to test this duty of
vigilance duty, due diligence, extraterritorial due diligence for companies, public companies, in front of a
court, you know, to see where that might actually go. But in terms of the, you know, the push to push
companies themselves to adopt these vigilance action, or these due diligence in which they would
monitor their entire business activity, their supply chains, or their suppliers, you know, is, is up to, you
know, to question whether it would actually work or not. So, on that front, you know, I encourage you,
but it's, you definitely don't absolutely need to do it. And I won't be upset if you don't want them
inspect part of necessarily the exam. But in this piece of mine, which I gave us an optional piece, I
discussed the pros and cons of human rights impact assessments, especially human rights impact
276
assessments, which as a result of these laws, maybe like the French law, you remember, the guy from
niche law said, well, the law I was against him now, it actually pushes us to go further. And when
companies adopt, you know, these monitoring plans, there are pros and cons to it, it's better than
nothing in they used to not do anything. But of course, they can select which areas they're going to look
at, they can look at environmental harms at one point, but they can decide not to anymore, because one
of the kinds of criteria that they often decide on is, you know, how, how easy is it going to be to remedy
a situation or to mitigate a situation. So therefore, there's a argument that, you know, some of these
mechanisms might be limited. And this is why it's going to be interesting now to see whether judges,
you know, actually suggested companies have less of a space to decide, and especially the new cases, in
terms of, you know, fossil fuel emissions. The Dutch case we discussed a moment ago, might actually
push companies, but pushed by law, and pushed by judges and the social movements, and advocates
that go in front of courts might actually push them to not be so much, you know, sovereign of their own
decisions of what they're going to monitor which rights they got, what what they're going to, you know,
try to mitigate. So, there's also attempts to build an international regime. One of those
is the idea of sort of big, basically putting all together the various environmental conventions that have
existed since the 1970s, Stockholm convention, the Rio convention, the Kyoto convention, and, of
course, the Paris Agreement, but all together into what's called a global pact for the environment, a little
bit like the International Covenant for Economic, Social and Cultural Rights and the ICCPR civil and
political rights, the idea would be to sort of build a third big covenant that would put all of these into
one day, you know, covenant that would be open to signature and ratification. It was an initiative that
came out of the Paris agreements led in a large part by French public law lawyers, and the French
president himself actually, you know, supported the launch of this initiative at the Sorbonne, it was a
big, big, big thing. But it seems to be stalling because a lot of countries disagree on the terms of what
would be included, which kinds of rights whose rights of course, so but just know that there is an
initiative here and I can of course tell you more if we were in the classroom, but this is not necessarily
interesting to do here, just know that it started in 2008, there was a, you know, a UN General Assembly
adoption of, you know, working group that would, would actually move towards this, but there's been,
for the moment political stalling obstacles to making this happen. Okay. Now, if we if we move forward,
what did happen is at the UN, the idea took it took a while. So I gave you various UN related documents,
some of which talk about the links between human rights and climate change in 2009, for example, in
really loose terms, you know, recognizing that there might be a link between climate change and the
violation of some rights, but further studies might be needed. And the wording, of course, 10 years later,
is very different in which, you know, there's a very specific definition of, you know, how, and why
climate change is related to human rights violation, and if so, which rights, it's very precise. And there
was also the institution of a UN special rapporteur on human rights, and the environment, who has been
pushing to this been to, you know, two people in particular John Boyle was was the main person until
2018, pushing for a human rights to healthy environments, okay. And the
277
the framework principle that was pushed was that states should ensure a safe, clean and healthy,
sustainable environment in order to respect protect and fulfill human rights, state should respect,
protect and fulfill human rights. So this is the flip side, in order to ensure a safe, clean and healthy
environment. So making a link that goes both ways. And state should provide for access to effective
remedies for violations of human rights and domestic laws relating to the environment. Okay, so that's
really, one of the things that came up. And what I would have liked to do in class is to discuss, you know,
is there really a case for a right to environment? And if so, who is the duty bear for that? Why, what are
the potential and limits of that concept, and that is something that is, you know, discussed in detail in
the reading you actually had for this class by says are Rodriguez caravita. So just a few points, I'm gonna
go quite quickly, because it's pretty much all in, in the reading. But just to get back to the UN Human
Rights Council, in March 2012, decided to appoint a special rapporteur on the human rights in the
environment. John Knox, and then David Boyd, were the two reporters I mentioned. And the one thing
that seems to be particularly important is
is to
see what the conceptual contribution has been by these by these UN Special Rapporteur, so they really
have been really pushing conceptually very strongly to make a link between a healthy environment and
the enjoyment of human rights, right, this is what's what's again, here. And the push was not only to
relate to this for, for example, the idea that you know, if you have a healthy environment, then you can
enjoy the rights to life health, food, water, sanitation, property and private life culture, non
discrimination, and vice versa. Without a healthy environment, you're not able to fulfill your your
aspirations, or even level a level commensurate with the minimum standards of human rights. And at
the same time, if sorry, this was the same idea, but if you protect human rights, it will help protect the
environment, right. So it's a bit like the same idea that you know, one is independent with the other. So
civil and political rights, remember important to development, this was the famine example by Sen. And
here, the idea is that, you know, if you have a possibility of participating in the decision you make when
people are able to learn about and participate in the decisions that affect them, they can help ensure
that those decisions respect the need for sustainable not environment, okay? So the importance of a
civic space for individuals to engage in dialogue with environmental policy and the idea that if you don't
have that government policies might cater to commercial interests of the powerful so that's, you know,
fan life kind of idea. So, what gara Vito says in his pieces are Rodriguez Garrido he says there's already a,
you know, human rights if you understand human rights to help the environment if you understand it.
As a moral thing, and he says, you know, there's many rights that were first moral and before they
became kind of legal. He also talks that there is, it could be understood in the perspective of customary
international law because it's present in national constitution as well as regional bodies. He talks about
state practice and opinion juries. But, you know, he talks about all sorts of all the the ways and places in
which it's been adopted in constitutions, as we've seen in regional, sub national, no, also many of these
decisions, the Dutch decision, the French decisions, etc. But what, what's interesting about this is not so
278
much the fact that it's not completely tiny, because, of course, very recently, last October, the right to
healthy environment was actually recognized by the UN Human Rights Council. Okay, so all of this
pushed by the UN Special Rapporteurs are the arguments that are made in the piece that you may have
actually led to something behind this, conceptually, there was this idea that, you know, you have to
show that, you know, the environment, protection of the environment is needed, and linked to the
realization of human rights and vice versa, which is a bit of the same idea. But it was very much
something that was meant to also protect a very specific kind of actors, which are environmental
defenders, who keep being killed, when they're fighting against deforestation, pollution, land grabs, are
poaching, okay. And this was really the former UN Special Rapporteur or not, was really showing how
many, you know, hundreds of people killed every year to protect land to protect protect indigenous
communities. And the UN recognition of a right to healthy environment would actually anchor the work
of these defenders, which are often sort of criticized as being anti developments, by both, you know,
local companies or even state sometimes. And that really, the idea was that it would actually protect
them, it would also raise the global prominence at the issue, which was what says or a veto is doing, it
would bring redress and accountability for those who suffered the most as a result of environmental
harms women, for racial and ethnic minority minorities and the young. And as any kind of rights based
approach. In its best form, it could also empower individuals, individuals and communities to defend
their environments, providing a framework for holding offenders accountable, and finding
new, new sorts of
legal arguments and recourses. So it gives more certainty, more coercive power, more legitimacy in my
informed new forms of little litigation, in which you might sort of change the balance of power in some
of the current conflicts and force a dialogue between international and domestic sphere, like you have
in you know, general international human rights law where you have sort of, you know, Regional Court,
citing treaty monitoring bodies of the world, citing constitutional courts, it could also energize social
movements, promote higher environmental standards and domestic legislation. Because, of course, the
flip side in my, you know, get the energy out of environmental activism and social movements, because
you want to go into litigation, you have to fit into these legal categories of damages, prejudice,
reasonable and as balancing, you will have a dominance of lawyers and legal discourses versus
advocates and activists. It can also sometimes be frustrating to realize, although we can see now that
courts seem to be really willing to respond to the legal cases. So you know, that's one one problem and
of course, who will be accountable is an issue, the duties of the rights to health environments are not
necessarily perfect. Unlike the right not to be torture, duty bearers of the right to healthy environment
and the actions expected of them would need to be clarified right through practice doctrine, case law,
and given the sort of transnational nature, natural nature of many forms of environmental damage, such
as global warming, you know, it's not easy to find who the perpetrators who are accountable. It's not
also clear whether corporations could be qualified as duty bearers have a right to healthy environments,
and with the lack of resources and the priority of economic development would be valid arguments for
279
low income States not to protect that. Right. So those are all questions which I think are important. I will
stop this recording right now, and do another very short one. The reason for this is that I simply
don't have any more power and I don't want to use the I don't want to use the recording. So, I will stop
now and do a very short one shortly.
Class 13 (only 20 mins)
Hi, everyone. So apparently the last section I recorded did not go through I hoped you, you will now get
it, I'm doing it again. This is just to finish off on on the session on the on the right to health environment
in which more generally the relationships between human rights and environmental issues and
challenges. So we finished off essentially by discussing some of the arguments behind the right to
healthy environment and attempts to build this right itself. And its recognition recently, at the UN
Human Rights Council, as well as other avenues such as the global pack for the environment, which tries
to build a covenant a bit like the ICCPR, the icy car. Essentially, one question that is at the heart of all of
these attempts is whether, as always, in this class, human rights language, whether individual human
rights or the right to healthy environmental, or these alternative new rights, which I'm just going to talk
about now can actually bring something to the table can bring focus or political leverage. Maybe it can
bring, you can create a forum for exchanging discussion that wouldn't be there otherwise, in the
opening a court, for example, or within the framing of a social movement, the language that it uses, or
even the programs of political parties that would help to make these difficult choices between for
example, growth, and the protection of rights. And again, with the idea that human rights in themselves
might not exactly tell you what to do, and would some times even perhaps, obscure the pros and cons.
But the argument here in the reading that you have vices or veto is that by just having those it can
actually change, it can create spaces for debate or justifications. It might change the bargaining positions
among stakeholders. And of course, when we talk rights, we talk about, you know, relations of
accountability and power, whom how much against foods rights, and it can be, of course, a way,
perhaps not completely satisfactory, but a way to engage in forms of environmental politics. Okay. So
now, I just want to use these 10 minutes to talk about attempts to actually craft new rights to add new
lists of rights, some people are not necessarily agreeing, that's the right thing to do. But it's an
innovation, it's almost what some would call an epistemological shift, where you sort of, you know,
really, completely re examined the subjectivity and knowledge in which rights are articulated in the
context of the environmental and ecological crisis and dilemmas that will taste at the age of the
Anthropocene, that some scholars have been describing, but not anymore as human rights, but as the
rights of nature itself. So of course, this raises a lot of a lot of questions. So we will move from rights,
280
which are taught to individual humans on dignity, and remember as a way to break the idea of state
sovereignty, through Supra legislative and sometime constitutional and international monitoring of what
happened between states and their inhabitants. And the idea now would be to shift this to give rise not
to individual humans then based on their dignity, but to nature itself. So the question is then behind is it
to protect humans on dignity or nature itself? And there are debates, political debates, and
philosophical debates about around those so I encourage you to watch the little movie which is on the
slide, which of course is going to be posted on your, on your Moodle? And, you know, there's been a
number of attempts there which are growing, first of all to sort of craft these ideas of different forms of
rights at the domestic level, so that the first country to try that with us Ecuador in its constitution, at
adore has powerful indigenous groups and changes constitution to the middle of the last decade, to give
nature, the right to exist persists, maintain and regenerate its vital cycles, structure functions and its
processing evolutions. So it was relatively abstract. And a lot of activists were disappointed by that,
because essentially didn't lead to actual new laws that are regulations that allow to stop, for example,
oil companies from destroying some of the most biologically rich areas of the southern region of the
Amazon during in Ecuador, the way of foreign actors, the importance of trades, meant that it didn't
really translate in laws and an application, although the the templates in 2007 to two constitution, the
other one, which is often mentioned, and I encourage you to watch the little video, it's very, very short.
It's the mother, Mother Earth bill of 2010,
which is which, which, which is, you know, which is a lot of give rights to what's called Mother, Mother
Earth. Okay, it was changed later in 2012. So it's the first law in the world that grants all nature, equal
rights to humans. it redefines the country's mineral rich mineral deposit as blessings. And it was really
expected to lead to radical new conservation and social measures to reduce pollution control the most
extractive industries. And at the same time that Lydia was asking the UN, UN agency for environment
and there's UN climate initiatives for steep carbon emission cuts. So the law defines Mother Earth as,
quote, unquote, the dynamic living system formed by the indivisible community of all life systems and
living beings, whom are interrelated, interdependent, and complementary in which share a common
destiny. And it adds that Mother Earth is considered sacred in the worldview of indigenous peoples and
nations. So nature is a collective subject of public interest in the life declares that Mother Earth and life
systems, which combines human communities, and ecosystems are title holders of inherent rights
specified in the law. So it essentially gives Mother Earth as it's called legal personality, by through, you
know, through that it can bring actually action to defendants, right. So it cannot bring action on its own,
it has to do it through representatives, which are humans, and I'll get back to this in a minute. And it also
say that it's Mother Earth is a public interest, and to say that represents really a shift, at least, you know,
from from an anthropocentric perspective, to a more sort of Earth community based perspective. So
there were 11, and later, seven new rights for nature, the right to life, the right to diversity of life,
without being genetically altered the right to pure water and clean air, the right to equilibrium, the right
to restoration, the right to live, free from economic contamination, a very interesting important right,
which was abandoned was the right not to be affected by mega infrastructure and development projects
that affect the balance of ecosystems and local inhabitants communities. So you can see again, here the
tension between protection of the environment and development, which we of course explored. So this
is influenced by sort of an Andean indigenous views in with earth are the Pachamama is really at the
281
center of life and humans are considered equal to other insect entities. And it gives again, legal
personhood, the natural system, and allows for citizens to sue individuals and groups as part of Mother
Earth in response to real or alleged infringement of its integrity. So there's a creation of a counterpart of
the Human Rights ombudsman, which is called the different Sarria, that Pueblo the defender of the
people, you have a different defender of Mother Earth Defense. So yeah, they made a tiara. And it's the
lead the law committed, you know, was committed to giving communities new legal powers to monitor
and control polluting industries. But actually, what happened of course, the DEA these these laws, if you
look at how they were applied, they, they really are interesting, this law was particularly interesting, but
it didn't really manage to stop, you know, industry in its tracks. So there's a fine line between regulating
companies and the fact and the reality that Bolivia earns about $500 million a year and needs it from
mining companies, which provide a third of the country's foreign currency but you know, from a legal
perspective, it's interesting and it's some probably something that is to be followed and and also As
always, once it's grounded, give some opportunities for social movements in cases of lawyers to sort
of build different kinds of politics. The last one I want to mention here is Colombia. So I mentioned in the
last recording Colombia, you know, as part of the sort of the domestic strategies to push environmental
concern through rights language in front of courts, but the way it was done in particular 2016 and 2018,
in particular, the fifth of April in 2018, the Colombian Supreme Court issued a really heartbreaking
decision for environmental law and human rights and the rights of nature. So, it was a group of 25 young
people age 725, which brought a lawsuit against the President of Colombia, national level ministries and
agencies as well as local governments. So they allege that the government violated their rights, the right
to life to health and to enjoy a healthy environment by failing to control deforestation in the Amazon
region of Colombia, which contributes to environmental degradation and climate change. So it made
headlines really around the world, especially in the legal world, because it recognized the legal rights of
the Amazon river ecosystem itself. So it was seen as a significant step in advancing the rights of nature.
The Court declared, for example, that for the sake of protecting this vital ecosystem for the future of the
planet, it would recognize the Colombian Amazon as an entity subject of rights, and beneficiary of the
protection, conservation, maintenance and restoration that national and local governments are
obligated to provide underneath on the Columbus constitution. So this decision is important. It builds on
the previous Columbia constitutional decision in 2016, which granted legal rights to a river, the Rio
attract of there's another decision also New Zealand that does the same, which empties that river
empties into the Caribbean Sea near the border of Canada, Panama. So to come back to the 2018, just
want to mention the remedies that were actually crafted by the Supreme Court, which are interesting.
First, it said that within four months of the decision, the President and various ministries and the
Ministry of agencies with this is a little bit like the Zachary story with the past participation of the
plaintiffs affected communities and the interest population in general must create a series of short,
medium and long term action plans to combat deforestation and the impacts resulting from climate
change. Second, in order to implement the plan, the court order the creation of it an intergenerational
pact for the life of the Colombian Amazon, it's called P vac in Spanish within the next five months after
decision with also with the idea of the active participation of the plaintiffs, plaintiffs affected
communities, scientific groups and others. And third, municipalities in the Amazon were required to
follow him beginning implementing local territorial land use plans. So it's remarkable because it
282
recognize the first the notion of intergenerational equity, as well as the precautionary principle, which
we mentioned before, which states that when an activity raises the threats of harm to human health, or
the environment, the proponent of the activity, rather than the public should bear the burden of proof
and should essentially refrain, okay. So there's been a lot of comments about this decision. It was
grounded on the right to water the right to breathe pure air to enjoy the handle having healthy
environment. And the idea was that the protection of fundamental rights did not only involve the
individual, but the other two, this includes the unborn will who also deserve the enjoy to enjoy the same
environmental conditions that we have. So the you know, it's a decision that is worth looking at. So just
to finish on this that what's what's important to to remember with the with all of these decisions and
arguments about the right to nature is of course, you know, there are going to be a number of debates
just like there was for the right to develop at about, you know, who's right, it really and who is going to
be beneficiary, because, of course, you know, nature itself, at
least in conceptually is going to be the subject of these rights, but nature itself can go to court can't, you
know, claim a right? And then of course, comes into action, the question of who is representing which
groups are more legitimate, which group have more power to actually represent or be excluded from
the representation of nature? And that, of course, is a complicated question. which I think is going to
lead to a number of debates. So I think it's, it's an interesting idea. But remember, as always, the
distributive politics and the politics in general, have any forms of sort of new rights, especially rights
such as sort of broad and conceptually a little bit abstract. So that those are some of the debates that
one has to remember. And of course, one has to look at, you know, how those are going to be
implemented concretely, what's going to happen is the follow up to these decisions in courts, how are
the governments, local governments, and representatives of nature, or the defender of Mother Earth?
How is that going to play out? And you know, it's so fresh and new that it's really an exciting field to look
at. And, of course, to analyze. I don't want to add more, I think you have enough here. There are
interesting elements to reflect upon which were in the readings, which is, of course, you know, how
climate change, for example, in inequality relate to each other in terms of inequality within countries.
But of course, inequality between countries and you have a lot of arguments from emerging or
developing economies about their own right to develop versus the right to healthy environment, for
example. There are interesting ideas that we can raise about, you know, how some of these
environmental rights and human rights politics appear into political programs. You have a lot of
environmental parties, for example, which talk about France, for example, a couple of years ago, the
entire your European election proposal of the Green Party was to change the constitution. So there's a
lot of constitutional rights talk. And one has, I think, to be really aware that this environmental and
ecological issues more broadly, are not necessarily containable within one sort of progressive
environmental green, kind of ideological framework there, maybe there and, you know, this is
something that we're starting to observe, like, like others, that there might be different ideological
appropriations have this notion of grounding into Earth and, and giving rights to earth and to the local
and circular economy, including, and this is more of a warning, I think, at least from my personal point of
view. On the on FAR and extreme right to write, the Nazi Party had very strong ideas about nature and
ecology and the soil. So I would just say, you know, so beware and look at the different politics and how
rights, including rights of nature and rights of the environment are used by different political entities and
283
movements. It's not just straightforward, it can go in multiple directions. And lastly, I would really
encourage you to read this piece, which I believe I assigned to you, by Olivia discuter, the UN Special. So
there's two pieces I would suggest. One is called climatized human rights by Cesar Rodriguez gara veto,
which talks about the importance of adapting human rights to the Anthropocene realities? And with the
idea that, you know, when one proposes a human rights push or claim, we need to pay attention in
terms of you know, how does it affect the planetary boundaries that make life on Earth possible. So, for
example, some countries may score very high for social and economic rights advocates, for example,
Canada and Norway, they're quite good in the welfare state. But to the extent that they're redistributive
policies, actually funded by oil, coal and other carbon intensive industries, that destabilize the climate,
on which both the Nationals and on humanity depend, you know, they do not they should not
necessarily have a sort of pass and applauded by social and economic rights advocate, for example, they
should be a new framework that takes into account the planetary boundaries, when we analyze
whether states for example, or corporations or international entities are abiding by human rights
obligations. So it's a really a change for sort of shifting a little bit, the whole accountability framework on
human rights by taking planetary boundaries into account. The other one is by legal Scripture, the UN
special rapporteur on human rights and extreme poverty called it's a just transition to July 2020 report,
which then in which he proposes a number of really interesting avenues of both abiding by human rights
standards and, and thinking seriously about ecological transition. I think there's a couple of YouTubes
where he sort of talks already about this In a shorter sort of crisp fashion which we can commonly found
online very easily. Okay, I will stop here. I hope you get this time you will get this recording. And again,
thank you so much for your attention. It's been a pleasure teaching you please be in touch, if you would
like to in the future. Bye bye
284

Development, Inequality and Human Rights Final

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Development, Inequality and Human Rights Final

Uploaded by

Copyright:

Available Formats

Development, Inequality and Human Rights – Prof.

Unknown Speaker 5:35

Unknown Speaker 8:11

Unknown Speaker 8:16

Unknown Speaker 8:58

Unknown Speaker 9:14

Unknown Speaker 12:15

Unknown Speaker 12:18

Unknown Speaker 13:34

Unknown Speaker 13:49

Unknown Speaker 14:44

Unknown Speaker 14:49

Unknown Speaker 19:46

Unknown Speaker 22:53

Unknown Speaker 27:33

Unknown Speaker 30:42

Unknown Speaker 34:52

Unknown Speaker 39:52

Unknown Speaker 56:23

What's up? Okay

Unknown Speaker 59:38

Unknown Speaker 1:00:02

Unknown Speaker 1:00:55

Unknown Speaker 1:01:52

Unknown Speaker 1:03:26

Unknown Speaker 1:04:02

Unknown Speaker 1:04:55

Unknown Speaker 1:05:00

Unknown Speaker 1:06:03

Unknown Speaker 1:06:43

Unknown Speaker 1:07:28

all developments. Not everybody equally certain. Already.

Unknown Speaker 1:07:39

Unknown Speaker 1:08:21

Unknown Speaker 1:08:49

Unknown Speaker 1:10:56

Unknown Speaker 1:11:52

Unknown Speaker 1:13:25

Unknown Speaker 1:13:40

Unknown Speaker 1:15:19

Unknown Speaker 1:16:07

Unknown Speaker 1:21:00

Unknown Speaker 1:23:18

So they all agree with you.

Unknown Speaker 1:23:23

Unknown Speaker 1:24:28

Unknown Speaker 1:24:33

Unknown Speaker 1:27:15

GDP is the is the sum of what is produced by a group by

Unknown Speaker 1:27:23

Unknown Speaker 1:32:09

Unknown Speaker 4:04

Unknown Speaker 4:54

Unknown Speaker 4:57

Unknown Speaker 9:21

Those of you of course on

Unknown Speaker 9:26

our welcome to participates

Unknown Speaker 9:30

through you, I hope we can.

Unknown Speaker 9:33

Unknown Speaker 13:38

Unknown Speaker 14:23