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CREATING POVERTY

Jason Beckett

ABSTRACT:

Poverty demonstrates the “misery and grandeur” of PIL; its professed weakness and its sly strength. Human rights, as a subset of public international law, views poverty as an obstacle and aspires to eradicate it. This is an impossible aspiration, however, because the very paradigm of human rights reinforces the narratives and conditions that facilitate the economic exploitation – itself undertaken through other subsets of international law – that is the true cause of global poverty.

I shall elucidate this by analysing four inter-related issues: the necessary correlation of wealth and poverty; the role of international law in managing that relationship; the requirement that the existence of that relationship be hidden or legitimised for its beneficiaries; and the role of human rights in that legitimation. In doing so I hope to induce a little anxiety about our position in the world, and our implication in an international legal regime which systematically produces poverty and exploitation, diverts the resource flows which these enable, and then covers its/our tracks.

1. The Facts of Poverty

Poverty can be understood as a fact, and the facts of poverty are horrific. However, poverty is not a natural fact: extreme poverty is a man-made phenomenon, a thing produced, a choice. Poverty is a legal regime. Extreme poverty is a modern phenomenon, a product of industrialization, development, and the socio-economic polarization these entail. Poverty is a by-product of the creation of wealth. Wealth is the concentration of resources; poverty is the absence of resources. The conditions which create extreme poverty ‘benefit some groups of people, even as they massively disadvantage others.’1

Destitution is a complex, and relative, phenomenon; easily given to misunderstandings, insincere sympathy, and complacent denial. As Thomas Pogge has noted,2 few, if any, of us have neighbours in extreme poverty or have even first-hand observations of its devastating realities. It is hard accurately to describe, let alone empathise with,3 the facts of global poverty; the lives of the billion or so human beings living on less than $1.25 per day.

At the last conclusive mortality measurement,4 poverty was responsible for 50,000 easily avoidable human deaths every single day. That is 350,000 human deaths per

1 S Marks, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57–78.2 TW Pogge, World Poverty and Human Rights (2nd edn Polity Press Cambridge 2008).3 See ibid; ‘Human Rights and Root Causes’ (n 1).4 See World Poverty and Human Rights (n 2). Current figures are disputed, as of 2011, UNICEF believed 21,000 children died daily of poverty related causes, see: http://www.unicefusa.org/press/releases/12000-fewer-children-perish-daily-2010-1990/8070The WFP attributes 3.1 million annual child deaths to malnutrition alone, see: http://www.wfp.org/hunger/stats This figure is supported by research published as a special series by The Lancet in 2013: http://www.thelancet.com/series/maternal-and-child-nutrition

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week, one million human deaths every three weeks, 18,000,000 human deaths every single year. This figure has remained constant since at least the 1970s.5 The proportion of human beings dying from poverty related causes has decreased as the world population has expanded; nonetheless, implication in a humanly constructed international order that kills 18,000,000 human beings per year is nothing short of abominable.

The Millennium Development Goals set the target of halving world poverty by 2015, but what does this mean? Halving the number of people who are in poverty, or halving the proportion of people in poverty? Halving against which baseline? The number of people poor on which date, according to which measure? Likewise, do we understand poverty as lack of food, lack of opportunity, lack of freedom, or as lack of ‘purchasing power parity’ (PPP—the World Bank’s preferred understanding)? The way that a task is measured defines the task, and determines success—and the World Bank’s focus on an ever changing PPP is designed to ensure success. PPP determines ‘parity’ by setting a series of currency baselines and representative ‘baskets’ of goods and services, drawn from each country’s Consumer Price Index (CPI).6 This creates an arbitrary and manipulable standard, which is presented as scientific and objective.7 It also bears little reality to the consumption patterns of the extremely poor, whose expenditure is dominated by necessities, rather than luxuries; and for whom the prices of basic foodstuffs have an impact far in excess of their impact on national CPIs. A doubling in the price of rice and wheat can have a devastating effect on the extremely poor, but virtually no impact at all on CPI.8

The inclusion of services in PPP calculations offers a clear example. Services are not available to or consumed by the extremely poor, the destitute; yet services tend to manifest the greatest price differential between developed and developing countries. A “hot towel shave” costs me $6 at a luxury salon in Cairo, $85 in Las Vegas, but this does not mean that the US $ generally has 14 times more purchasing power (the “parity” of the calculation) in Egypt than it does in the USA. Of more relevance to the poor, a kilogram of rice costs $0.66 in Egypt, and $1.10 at Walmart in the US, giving the dollar just 1.67 times more purchasing power in Egypt than the USA.

The inclusion of services complements the low weighting of basic foodstuffs to ensure artificially high levels of ‘parity’ relevant to the actual consumption patterns of the extremely poor. Combining the two parities above gives a PPP of 7.835 where 1.67 is based on measures infinitely more relevant to the subsistence patterns of the very poor.

The purchasing power represented by PPP is not only arbitrary, but decreasing; consequently the International Poverty Line (IPL) itself represents an ever decreasing access to resources, not a fixed line against which decreases in poverty can be

5 See World Poverty and Human Rights (n 2).6 World Bank, ‘PovcalNet: Data’ <http://iresearch.worldbank.org/PovcalNet/index.htm?0,3/>; World Bank, ‘Poverty & Equity Data’ <http://povertydata.worldbank.org/poverty/home/>.7 T Pogge, ‘How World Poverty is Measured and Tracked’ in E Mack et al (eds), Absolute Poverty and Global Justice: Empirical Data—Moral Theories—Initiatives (Ashgate Burlington 2009) 51–65, at 58–62.8Ibid 60.

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impartially determined. This means that less and less actual purchasing power is required to statistically ‘escape’ the poverty trap:

If we use the US Consumer Price Index to convert the Bank’s four successive IPLs into 2005 dollars, we get:

$1.02 PPP 1985 = $1.85 (2005)$1.00 PPP 1985 = $1.81 (2005)$1.08 PPP 1993 = $1.45 (2005)$1.25 PPP 2005 = $1.25 (2005)9

$1.90 PPP 2011 = $1.23 (2005)10

PPP-reliant measures of progress in combating poverty are inherently untrustworthy.11 Revisions to the temporal baseline, and version of parity measuring the Millennium Development Goals

led UN Secretary General Kofi Annan tragicomically to report to the General Assembly that for the world’s most populace region ... the 2015 poverty target had been fully met already in 1999, a full year before this goal had even been adopted.12

This is a particularly egregious, but hardly isolated example, thus:

the turn to indicators is a manifestation of the anxiety of results, to shore up the project in the face of its failures, and to look for new ways to measure the project to ‘prove’ it is working.13

Beyond the statistical manipulations two points remain true: 950,000,000 people actually have access to currency equivalents of US$100 (or less) each per year;14 and 18,000,000 of these people die annually as a result.

It might be objected that this data is old; specifically that it predates the recent financial crises. Although there is as yet no conclusive data for the prevalence of poverty intra- or post-financial crisis, history tells us that the poor and the extremely poor fare badly in global (or local) economic upheaval.15 While the World Bank currently estimates that as of 2011 over 1 billion people still fell below their PPP adjusted $1.25 a day line,16 the OHCHR, using a different calculative method, noted:

9Ibid 56.10 http://blogs.worldbank.org/developmenttalk/international-poverty-line-has-just-been-raised-190-day-global-poverty-basically-unchanged-how-even 11 The tendency of PPP to produce ‘distorted’ assessments, radically understating poverty levels, is elaborated on in ibid 56–63.12Ibid 52–3.13 S Pahuja, ‘The Poverty of Development and the Development of Poverty in International Law’ (2010) 3 Select Proceedings of the European Society of International Law 365–75; World Bank, ‘PovcalNet: Data’ <http://iresearch.worldbank.org/PovcalNet/index.htm?0,3>; World Bank, ‘Poverty & Equity Data’ <http://povertydata.worldbank.org/poverty/home/>. See also ‘How World Poverty is Measured and Tracked’ (n 7) 57–8.14 World Poverty and Human Rights (n 2) 103.15 World Bank, ‘Financial Crisis Could Trap 53 Million More People in Poverty’ (12 February 2009) <http://go.worldbank.org/1FWPZ7KCJ0>.

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The incidence of extreme poverty around the world is staggering. According to UNDP’s Human Development Report 2014, over 2.2 billion people … “are either near or living in multidimensional poverty”.17

Finally, Jason Hickel claims:

That if people are to achieve normal life expectancy, they need … a minimum of $3.70 per day … at this more realistic level, we would see a total poverty headcount of about 3.5 billion people … We would also see that poverty is getting much worse, with around 500 million more people added to the ranks of the extremely poor since 1981.18

The stark facts of extreme poverty provide an important context in which to interrogate Collier’s assertion that: ‘You don’t have to try that hard to imagine this condition—our ancestors lived this way.’19 This bizarre claim is questionable on at least two registers: scientifically it rests on an implied acceptance of ‘genetic memory’ theory; whilst historically it is simply false. As Susan Marks notes:

[P]overty of the kind experienced today is not a token of backwardness, but a modern phenomenon ... linked to the destruction of traditional livelihoods and of the practices associated with them that once kept destitution at bay.20

As former World Bank chief economist Joseph Stiglitz has acknowledged, if any of our21 ancestors lived in conditions of extreme poverty, this occurred only during the most exploitative phases of the industrial revolution.22 What then is the purpose of Collier’s assertion? It entrenches the comforting idea that poverty is a fact, tragic, but uncaused; it also reinforces the progress narrative by which we ‘escaped’ poverty through our own ingenuity, development, and civilization.

This vision of poverty often appears in academic and activist literature. Poverty as a natural occurrence, inexplicable, and beyond human agency; ‘free-floating bad events’23 which strike like an earthquake, causing massive human suffering and death. This is a curiously comforting image: no-one is to blame for the fact of poverty, just as no-one is to blame for the occurrence of an earthquake. However, this comforting 16 See: http://iresearch.worldbank.org/PovcalNet/index.htm?1 ; and Global Monitoring Report 2014: http://www.worldbank.org/en/publication/global-monitoring-report/poverty-forecasts17 http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx18 J Hickel “The death of international development” Red Pepper February 2015, available at: http://www.redpepper.org.uk/essay-the-death-of-international-development/19 P Collier, The Bottom Billion: Why the Poorest Countries are Failing and What Can Be Done About It (OUP Oxford 2007) at 5.20S Marks, ‘Human Rights and the Bottom Billion’ (2009) 1 European Human Rights Law Review 37–49, at 46. See also M Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World (Verso London 2001).The first, colonial, creation of extreme poverty prior to (but ultimately funding) the industrial revolution is depicted in heart-rending detail in E Galeano, Open Veins of Latin America: Five Centuries of the Pillage of a Continent (C Belfrage trans) (Monthly Review Press New York 1973).21 I am assuming Collier uses this collective noun to represent the white westerner for whom he is so obviously writing.22 J Stiglitz, ‘Inequality is a Choice’ (13 October 2013) The New York Times.23‘Human Rights and Root Causes’ (n 1) 58, quoting Report of an Amnesty International Mission to Argentina 6–15 November 1976 (Amnesty International Publications London 1977) at 120.

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image is patently false. Poverty does not just happen: poverty is created, maintained, and regulated.

2. Poverty as a Legal Regime

Poverty is created by socio-economic processes, and those processes are in turn effected through, and regulated by, international law; thus poverty is a ‘legal regime’. As Pogge notes, poverty is deliberately, though not intentionally, inflicted upon certain people by other people. The intention is to create and concentrate wealth, but the production of poverty is a necessary and known by-product of the creation and consolidation of wealth.24 The consolidation of extreme wealth entails the creation of extreme poverty; the latter is deliberate in the sense of being a known consequence of the pursuit of the former. Although the intention is solely to produce wealth, the production of poverty remains deliberate. The processes of wealth creation and concentration are managed through law; consequently, the corollary processes of poverty creation are also creatures of law.

There is a constant resource flow from South to North; from the ‘Developing World’ to the (Over-)‘Developed World’.25 The average lifestyle in the developed world depends on this resource flow, which is materially unavailable to the majority of the planet’s inhabitants; there are simply not enough resources to allow it: ‘If all people adopted the American lifestyle ... the world’s population would need about five “Earths” to meet its needs.’26 Even the more modest consumption patterns in the UK would require the resources of 3.1 Planet Earths to replicate universally.27 The wealth of the North produces (and is produced by) the poverty of the South.

The management of poverty and exploitation have been the central functions of the international legal regime since the very foundation of international law. International law was forged in the heat of the colonial encounter with others,28 in the need to justify the exploitation of those others, and the expropriation of their natural resources and wealth.29 Contemporary international law serves the same functions, but under different rationalizations and justifications.30

24World Poverty and Human Rights (n 2) 1–32 (‘General Introduction’); ‘Human Rights and the Bottom Billion’ (n 19) especially at 46–8.25 U Mattei and L Nader, Plunder: When the Rule of Law is Illegal (Blackwell London 2008).26 M Hood, ‘Humanity Falls Deeper into Ecological Debt: Study’ (20 September 2011) Phys.org <http://phys.org/news/2011-09-humanity-falls-deeper-ecological-debt.html#jCp>.27 A Simms et al, ‘The Consumption Explosion: The Third UK Interdependence Report’ (New Economics Foundation 25 September 2009) <http://b.3cdn.net/nefoundation/41a473dfbe880a0742_ucm6i4n29.pdf> at 12.28A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal 1–80.There was, of course, also a proliferation of treaties between the Imperial Powers.29 Plunder (n 24); C Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge-Cavendish Abingdon 2007).30 V Raina, ‘Ecological Debt: An Enormous Debt the North Owes the South’ (Paper presented at the International Tribunal on Debt, World Social Forum, January 2002) <http://www.enredeurope.org/docs/ecodebtpaper-18may.pdf>.

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The ‘plunder’31 of the Third World is written into the DNA of international law; it is its raison d’être. This can be seen in everything from the definitions of statehood and government (and the powers ‘granted’ to governments), to structural adjustment policies, bilateral investment treaties (BITs), international economic law, and debt peonage. The basic structure of international law incentivises the creation of poverty. This flows from a combination of the focus on territoriality; the commitment to effectiveness (rather than legitimacy); the resource and borrowing privileges available to governments; and the rights of governments to buy and sell arms.32

In the Island of Palmas case, the arbitrator Max Huber confirmed that the sovereign state is a territorial concept. Under international law, whichever group is able to seize control of this territory (to impose its will as law) becomes the government of that state. Control can be imposed on the inhabitants of the territory; sovereignty need only be ‘peaceful in relation to other States’,33 and is legally effective whether recognised or not.34 The government then has the right to sell the state’s resources, and to borrow in its name, as exemplified in the Tinoco arbitration;35 where the arbitrator William Taft based his judgment on the priority of securing investor interests over the needs of the local population. The government also acquires the right to buy weapons, and legitimately exercise violence against its own population.36 These powers are formally limited by that state’s human rights commitments; but factually, they are limited only by the group’s capacity to maintain effective control.

Beyond their resource, borrowing, arms, and violence privileges, governments also have the capacity to commit their states to treaties, investment agreements, and to the conditionalities imposed on loans they take out.37 Since the 1980s, these commitments have shared a common core: neo-liberalism provides the dogma of the international financial institutions, the WTO, and the bilateral investment treaty regimes alike. The imposition of this neo-liberal agenda has been reinforced by the terms of trade agreements with the EU, US, and China. These have culminated in the imposition of a ‘development policy’ structured by the twin imperatives of attracting direct foreign investment, and expanding the export sector. The imposed reforms take on a predictable pattern: import tariffs and measures to protect local industry are decimated; the economy is opened to foreign investment, generally on preferential terms (low royalty mineral extraction, tax holidays, export-processing zones, and so on), and national industries are privatised.

Concurrently, labour rights are repealed or massively diluted, even as state welfare provisions are removed—forcing workers to accept ever deteriorating wages and working conditions. Fighting back is almost impossible. After a string of fatal incidents ranging from fires to building collapses, and a massive wave of strikes,

31 Plunder (n 24).32 World Poverty and Human Rights (n 2) 1–32 (‘General Introduction’); T Pogge, ‘Recognized and Violated by International Law: The Human Rights of the Global Poor’ (2005) 18 Leiden Journal of International Law (2005) 717–45, at 738.33 Island of Palmas Case (United States v The Netherlands) (Award) (1928) 2 RIAA 829–71, at 839.34 Tinoco was not recognised.35 C Warbrick, ‘Recognition of States’ (1992) 41 International and Comparative Law Quarterly 473–82.36 H Kelsen, ‘On the Pure Theory of Law’ (1966) 1 Israel Law Review 1–7. 37 World Poverty and Human Rights (n 2) 224–56.

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‘Bangladesh’s wage board has proposed raising the minimum salary for garment industry workers by 77% to 5,300 takas (US$68; £42) a month.’38 This means present wages are below £25 per month, and employers are fighting to keep them that way. Likewise, under pressure from the American Government and corporations, attempts to raise Haiti’s minimum wage to 61 cents per hour were defeated, and a minimum wage of 31 cents per hour was locked in instead.39

The competition for foreign investment becomes a race to the bottom:

The concentration of growth in export-oriented production ... has contributed to the low levels of net job creation, as this sector tends to have weak links with the domestic economy, and to keep wages down. ... The lowest-income groups have tended to experience the largest increase in unemployment and the greatest deterioration in their wages.. . .export sectors ... have experienced growth through lower-cost labor.40

The supply of cheap resources to the world market is secured at the cost of decreasing wages and social support, and increasing exploitation. For example, a 2004 report on Structural Adjustment found that:

The Mexican minimum wage has lost 69 percent of its purchasing power since the beginning of adjustment in 1982, and the number of people living in extreme poverty ... rose from 6 million to 30 million between 1994 and 2000. Salaries were restricted in order to maintain competitiveness.41

The imposition by legal dictat of an open, investor-friendly, economy also restricts governments’ macro-economic discretion. With protectionist measures precluded, and external debts growing, there can only be minimal government investment—if this is allowed at all in the privatized economy—and minimal regulation:

[W]orkers experience a deterioration in working and living conditions and a loss of collective capacity to defend their rights ... The result is greater poverty and social problems. . . [T]hese practices have also hindered the development of a quality-based competitiveness that would produce greater labor stability and directly improve the living standards of workers.42

As developing states are forced to open their markets, remove tariffs and other ‘barriers to trade’, deregulate and privatize their economies, ‘integration’ into the world market breeds poverty:

During the 1980s and 1990s, the policies that [the IFIs] foisted on the Global South ... caused per capita income growth rates to collapse by almost 50 percent. [It is]

38 AJ Dipu, ‘Bangladesh Seeks 77% Rise in Wage for Garment Workers’ (5 November 2013) BBC News (emphasis added).39 Ibid.40 Structural Adjustment Participatory Review International Network, Structural Adjustment: The SAPIR Report: The Policy Roots of Economic Crisis, Poverty and Inequality (Zed Books New York 2004) at 86.41Ibid 89–90.42Ibid 83–4.

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estimated that during this period developing countries lost around $480 billion per year in potential GDP. ... Yet Western corporations have benefitted tremendously from this process, gaining access to new markets, cheaper labour and raw materials, and fresh avenues for capital flight.43

Given that any apparent ‘growth’ has been engineered through a combination of privatization, direct foreign investment, and the suppression of wages and working conditions, it is unsurprising that ‘the benefits of export growth went primarily to the multinational corporations’.44 The advantages of multinational corporations (MNCs) are compounded—through law—as the opening of markets is complemented by demands for low royalty payments, tax incentives, even tax holidays, and ‘aggressive tax planning’.45 All of this is legal, and legally regulated; but it sits alongside a zone of dubious legality: tax evasion.

At first blush, tax evasion is unlawful, yet it is also facilitated by law. Major banking and financial centres aggressively protect client confidentiality, relying on the imperatives of national law to do so. Revenue services in developing countries are usually understaffed (due to the neo-liberal imperative to reduce government spending) and thus unable to track ‘value-added through a maze of interconnected companies linked through shell companies, holding companies and other intermediaries registered in centres from the British Virgin Islands to Switzerland and London’.46

Regardless of which side of the blurred line between avoidance and evasion individual acts of ‘tax planning’ inhabit, the law remains consistently implicated in denying to the developing world hundreds of billions of dollars annually.47 Developing countries are deprived of income as well as control. There is thus no scope to develop indigenous refining capacity, the developing states are fated to remain raw commodity producers:

African exporters typically capture only a small share of the final value of mineral exports. The Democratic Republic of the Congo is the world’s largest exporter of cobalt, mostly in the form of unprocessed ore—but value is added elsewhere ... Without processing industries that add value, mining creates fewer jobs, produces less revenue and contributes less to GDP growth. ... The low level of value added in African mining is symptomatic of the low level of manufacturing activity in the region’s economies.48

Riven with conflict, burdened with old loans and conditionalities, and bound by WTO membership to liberalize their economies, many developing countries are not in a position to develop indigenous refinement sectors. Nor under many trade and investment agreements would they be legally entitled to offer any such nascent sector the protection and subsidy needed to survive.

43J Hickel, ‘Flipping the Corruption Myth’ (1 February 2014) Al Jazeera International.44Structural Adjustment (n 39).45 Africa Progress Panel, ‘African Progress Report’ (2013) <http://www.africaprogresspanel.org/publications/policy-papers/africa-progress-report-2013/>.46Ibid 65.47 Ibid.48Ibid 45.

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Augmenting the structural violences of international law, and loaded trade rules, are the conditionalities49 tied to IMF or World Bank loans, making near identical demands. Indeed, World Bank president Jim Yong Kim’s recent remark that “developing world countries: … should undertake structural reform programmes to promote growth” prompted an Oxfam spokesperson to retort: “Today we have seen a worrying glimpse of the old World Bank, focusing only on growth, structural reform and opening the gates to the private sector.”50

Together, these loans and conditionalities ensure that developing states are condemned to augment a permanent place at the bottom end of the supply chain with perpetual debt peonage:

Debt repayment has become an important mechanism for transferring wealth from the people of the South to financiers of the North. According to the United Nations, developing countries paid 1.662 trillion dollars in debt servicing between 1980 and 1992. This amount is three times the original amount owed in 1980.51

This trend continues, and the World Bank estimates that in 2012 developing countries made annual interest repayments of over $190 billion, on total debts which then exceeded $5 trillion, and continue to rise steadily.52

Mass exploitation is a product of law. Even where the conditions of exploitation appear lawless (for example in the Democratic Republic of the Congo),53 those conditions are encircled by law: sovereignty, borders, resource transfers, debt.

Under the benevolent gaze of international law, the political, military, and economic elites of the ‘developing countries’ are encouraged to facilitate the mass exploitation of their people and resources. Patent laws are globalized, and antitrust measures universalized, but labour standards are rarely exported. Moreover, the first contact that the products of exploitation—for example, gold, diamonds, rare earth minerals, sweatshop clothes, or coffee—have with law is a cleansing one: the misery of their production washed away, they become legally absolved, legitimately transferable, commodities.

Demonstrating this is perilously close to attempting to prove a negative. However, a few observations are apt. First, at a general level no one appears to argue that worker exploitation and dangerous working conditions in Bangladesh,54 Columbia,55 or South Africa impact negatively on title to the clothes produced or minerals mined.

49 The former structural adjustment policies (SAPs), which have been repackaged, effectively unaltered, as poverty reduction strategy plans (PRSPs). See: http://fpif.org/structural_adjustment_programs_poverty_reduction_strategy/50 “World Bank's Jim Kim: global slowdown will harm anti-poverty drive.” The Guardian 16th April 2015, available at: http://www.theguardian.com/business/2015/apr/16/world-banks-jim-kim-warns-global-slowdown-will-harm-anti-poverty-drive51 P Bond, Elite Transition: From Apartheid to Neoliberalism in South Africa (Pluto Press New York 2000) at 188 (emphasis added).52 http://datatopics.worldbank.org/debt/ids/region/LMY 53 D Snow, ‘DR Congo: Cursed by Its Natural Wealth’ (10 October 2013) BBC Magazine<http://www.bbc.co.uk/news/magazine-24396390>.54 See ‘Bangladesh Seeks 77% Rise in Wage for Garment Workers’ (n 37).

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Transferable title in the products of exploitation is simply assumed; and efforts instead focus on persuading intermediate buyers (for example Walmart or GAP) to ameliorate the suffering in their supply chains.

In a similar vein, the 1980 United Nations Convention on Contracts for the International Sale of Goods (ratified by 80 states including much of the so-called First World), despite a preambular reference to ‘the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order’, has little to say about the generation of title.56 Article 41 obligates the seller to ‘deliver goods which are free from any right or claim of a third party’ but there is no corresponding obligation of due diligence placed upon the buyer. Consequently, the buyer would appear to receive good title, whether the seller possessed such or not. Likewise, the Kimberley Process for restricting the circulation of conflict diamonds is purely voluntary. The very existence of this process highlights the absence of corresponding legal demands, and the optional nature of the process does little to fill this lacuna.57 Finally, in the related area of ‘conflict minerals’:

Section 1502 of the US Dodd-Frank Wall Street Reform and Consumer Protection Act. . . passed in July 2010, is the first piece of legislation in the world that aims to break the links between eastern Congo’s minerals trade and the abusive armed groups that prey upon it.58

Once again, such legislation would have been unnecessary had international law itself regulated the links between conflict, appropriation, exploitation, and marketable title. Moreover, as can be seen from Global Witness’ decision to withdraw its support from the Kimberley Process,59 and the utter ineffectiveness of the US–Columbian Labor Action Plan agreed in April 2011,60 such piecemeal efforts are unlikely to preclude trade in exploitative or conflict commodities. The basic structures of international law incentivize exploitation whilst removing its dark shadow from the world of international commodity exchange, the realm of markets, trade, and regulated competition.

In these apparently free and co-operative spaces, primary producers are rarely able to set the prices of their commodities. The less processed a commodity is, the truer this becomes; so that exporters of raw natural resources have least control of all. As a fractured producer community, hobbled by antitrust and anti-cartel rules, faces a united consumer community, the latter set the terms of exchange. Developing countries—prohibited by the WTO and SAP/PRSPs alike from subsidising or

55 R Needleman, ‘Free Trade Agreements and Unfree Labor: The Case of Columbia’ (2013) 22 New Labor Forum 51–8.56 Convention on Contracts for the International Sale of Goods (opened for signature 11 April 1980 entered into force 1 January 1988) 1489 UNTS 3.57 S Pickles, ‘US “Conflict Minerals” Legislation: Opportunities and Obligations for Chinese Companies’ (Global Witness, 12 November 2013) <https://www.globalwitness.org/archive/us-conflict-minerals-legislation-opportunities-and-obligations-chinese-companies/>. 58 Ibid (emphasis added).59Global Witness, ‘Conflict Diamonds’ <http://www.globalwitness.org/campaigns/conflict/conflict-diamonds>.60 ‘Free Trade Agreements and Unfree Labor’ (n 54).

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protecting domestic industry—are forced to sell unprocessed resources at that fraction of their worth termed ‘going world market prices’. Extortion becomes the law:

A study by the Southern African Development Community of the value chain for a range of minerals in Africa found that the value of processed products was typically 400 times greater than the equivalent unit value (by weight) of the raw material.61

The advantages of MNCs are compounded—through law—as foreign investment is mediated through the BITs regime. This exempts MNCs from the vagaries of local laws, assigning dispute resolution almost exclusively to the ICSID system, guaranteeing corporate profits, and leaving states alone subject to commercial risk.62 In short, ‘the property and investment rights of transnational capital are protected in “exquisite detail” under extensive NAFTA, GATT, and WTO regulations and articles.’63

So-called developing states are caught in a multi-pronged legal assault. They gained independence subject to colonial borders, and are obligated by colonial era treaties, contracts, and patterns of wealth distribution.64 Moreover, the colonial era itself had destroyed traditional forms of livelihood and social solidarity,65 and reduced colonial territories to deposits of natural and human resources.66

‘Developing nations’ are forced to sell their resources, including labour, cheaply to the developed nations; and to buy arms, processed commodities, and pharmaceuticals, at high prices, from those same developed nations.67 Debt ‘repayments’ become a system of perpetual tribute, carefully calibrated to ensure continuing serfdom. The currency flows become circular,68 while the resource flows are essentially unidirectional, from poor to rich.69

We turn full circle. The under-resourced governments of artificially (but deliberately) impoverished nations must maintain some form of social order, whilst also seeing off rivals to their power. Mass human rights abuses are a systemic response to widespread 61‘Africa Progress Report’ (n 44).62 BS Chimni, ‘Capitalism, Imperialism, and International Law in the Twenty-First Century’ (2012) 14 Oregon Review of International Law 17–45.63 J Wills, ‘The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and Hegemony’ (2013) 27 Leiden Journal of International Law 1–23.64 The most egregious example would be the imposition by France onto Haiti of massive reparations for the loss of ‘property’ represented by the very freed slaves forming the then Haitian population.65Late Victorian Holocausts (n 19).66 ‘Finding the Peripheries’ (n 27).67 The luxuries ostentatiously enjoyed by the ‘ruling kleptocracies’, and ostentatiously reported by the international media, are in reality a footnote. It has been speculatively suggested that Hosni Mubarak and his ‘cronies’ may have stolen as much as $30 billion during his reign. Let us fantastically assume it was more, $80 billion! In an Egyptian nation of 80 million citizens, that amounts to $1000 per person—over 30 years. $33 per person, per year.In reality, then, probably $10 stolen from each citizen per year.A crime to be sure, but hardly an explanation for Egypt’s widespread poverty.68 T Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso London 2013).69 See eg D Kar et al, ‘Illicit Financial Flows and the Problem of Net Resource Transfers from Africa: 1980–2009’ (Global Financial Integrity, 29 May 2013) <http://www.gfintegrity.org/report/report-net-resources-from-africa/>.

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dissatisfaction with, and protest against, a government’s rule, its policies, or its authority.70 Such protest must be suppressed because external factors preclude the demanded change in policy. The poor would like to be supported and treated with dignity, workers demand respect and living wages, they organise, make their demands apparent.

However economic conditions—engineered and imposed by international law—rule out making the necessary concessions. This is where the trouble erupts, and violence, repression, and ‘mass human rights abuses’ function as systemically rational responses.71A sad and uncomfortable truth then: it is cheaper to oppress a people than to appease them. The mooted subordination of WTO law to human rights demands has done little or nothing to ameliorate poverty.72 Nor has the IMF and World Bank’s adoption of a human rights friendly vocabulary.73 On its face, this system is patently exploitative, unjust, and unethical. Consequently, it must be justified or, ideally, naturalized.74

The task of poverty apologism has necessitated two things—the turn to statistics outlined above; and a deployment of human rights analysis to obscure the systemic causes of poverty. The citizens of the developed world sit atop the human food-chain, the ‘ultimate predator’.75 Yet these same citizens are taught to conceive of themselves as enlightened and civilised, the bearers of humanity. This dissonance (the denial of the link between poverty and wealth) is managed through law. The naturalisation of poverty allows us to believe in our development from—rather than implication in—the plight of the extremely poor.

Poverty-blindness is achieved by naturalising our sense of entitlement to the spoils we enjoy as beneficiaries of a global order that perpetuates extreme poverty.76 This in turn is achieved through an extremely partisan analysis of the causes of poverty.77 Such analyses typically present poverty as caused by localised human rights abuses (themselves inexplicable), and imply that if human rights were respected, economic development would follow, and poverty would be eradicated. If only the Darker Nations78 could learn to implement human rights, then they too could be like us. This is simply untrue.

3. Human Rights and Global Poverty: A Story of Misconception and Exoneration

70 N Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Knopf Toronto 2007).71 Ibid.72 J Beckett, ‘Fragmentation, Openness, and Hegemony: Adjudication and the WTO’ in MK Lewis and S Frankel (eds), International Economic Law and National Autonomy (CUP Cambridge 2010) 44–70.73 BS Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 European Journal of International Law 1–37; M Koskenniemi, ‘What Use for Sovereignty Today?’ (2011) 1 Asian Journal of International Law 61–70. 74 SA Malik, ‘As Natural as the Air We Breathe: Intellectual Property and the Naturalisation of Structural Violence’ (Paper presented at Technologies of Imperialism: Law in Contemporary and Historical Perspective, School of Oriental and African Studies University of London, 16 March 2013).75 G Rose, Mourning Becomes the Law: Philosophy and Representation (CUP New York 1996).76WEB DuBois, ‘The African Roots of War’ (1915) 115 Atlantic Monthly 707–14.77‘Human Rights and the Bottom Billion’ (n 19) especially at 48–9.78‘The African Roots of War’ (n 75).

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All of which brings us neatly to the thorny question of the relationship between human rights and global poverty. Of all the branches of international law, human rights has undoubtedly been the most vocal in its condemnation of global poverty—as a ‘rights abuse’ in itself, and as a cause of other rights abuses.79 Nonetheless, the human rights regime has been resolutely blind to the ‘root causes’ of extreme global poverty.80

My basic contention here is that too much human rights analysis fails to engage with the causes of poverty, and has a habit of confusing causes and effects, the net result of which is to perpetuate and legitimate extreme global poverty. Human rights analysis functions not to ameliorate the conditions of the extremely poor, but to justify those of the affluent.81

Paul Farmer reminds us that we live in a World where affluence and deprivation are unevenly distributed, and that “one way to trace this geography of unequal risk is to consider how “structural violence” is meted out to the poor in myriad ways… by everyone who belongs to a certain social order.”82 However, he also cautions that our epistemological and moral systems militate against recognition of “how social arrangements create danger, disease, and death”83 and emphasises “the discomfort these ideas provoke in a moral economy still geared to pinning praise or blame on individual actors”.84

Thus, while Farmer’s arguments – alongside Pogge’s – have had some impact on the field, few have chosen to endure the discomfort of rejecting the individualist leaning of law and rights, or facing the self-implication to which structural analyses almost inexorably lead. A willingness to overcome this discomfort has, however, prompted Upendra Baxi, and then Obiora Okafor, to outline “a new human rights paradigm [which they] refer to as the trade-related market-friendly (TREMF) paradigm”. This emphasizes the “imperative that scholars and observers of governance systems and institutions … not assume that ‘pro-human rights’ necessarily translates to ‘pro-poor’.”85

But even this imperative is not often accepted. Thus, despite their insightful analyses,86 and impassioned advocacy,87 Margot Salomon and Olivier de Schutter

79‘Human Rights and Root Causes’ (n 1) 61–2.80Ibid 65–7; The Shock Doctrine (n 69).81 JA Beckett, ‘Faith and Resignation: A Journey through International Law’ in M Stone, IR Wall, and C Douzinas (eds), New Critical Legal Thinking: Law and the Political (Routledge London 2012) 145–66.82 P Farmer Never Again? Reflections on Human Values and Human Rights (2005 Tanner Lectures)83 Ibid.84 Ibid. (emphasis added.)85 O Okafor, B Ugochukwu, “Have the norms and jurisprudence of the African human rights system been pro-poor?” 11 African Human Rights Law Journal (2011), 396-42186 O De Schutter, Report of the Special Rapporteur on the right to food, ‘Crisis into opportunity: reinforcing multilateralism’, UN Doc. A/HRC/12/31, 21 July 2009; M Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (2007)87 M. Salomon and O. De Schutter, Economic Policy Conditionality, Socio-Economic Rights and International Legal Responsibility: the Case of Greece 2010-2015;Salomon, ‘Of Austerity, Human Rights and International Institutions’, 21 European Law Journal 4 (2015) 

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remain too accepting of Human Right’s fundamental goodness and normative superiority; its pristine isolation, and its capacity to make demands of other systems:

Separate from any responsibility of the IMF qua the IMF, as above the IMF Member States are required to comply with their existing human rights obligations including when acting under the auspices of an international organisation.88

They refuse both Baxi’s insights and Teubner’s observation that (legal) systems are limited in their ability to make demands of one another.89

Instead of assuming human rights’ can simply make demands of other legal and economic orders, we should begin to analyse the myriad and messy entanglements between human rights, economics, development, and international law. Their relations of domination and subjugation; of complicity and compromise. However, this does not occur, and the same innocent superiority, characterises the human rights movement’s institutional actors. Although poverty has been featured in the analysis, its specific logics remain unexplored, “some mandate-holders put the issue to one side for reasons to do with time and information … Among those who did take it up, few took it into account in formulating their specific recommendations.”90

A key example is the wide ranging analysis offered by De Schutter in his role as Special Rapporteur on the right to food. Despite recognising famine as a man-made phenomenon, and identifying the routes through which it is inflicted on specific poor populations, De Schutter ultimately offers recommendations focussed on the idea that the right to food has been misunderstood and misapplied, answers which:

suppose that there is no systemic or material basis for hunger and malnutrition, nothing about the organisation of the global economy that generates food crises, and does so not just contingently but necessarily, as part of its logic.91

Finally, the widely heralded appointment of Jim Yong Kim as President of the World Bank in 2012, was expected to lead to a sea change in that institution’s engagement with poverty and inequality, but three years later so little had changed, that the new UN Special Rapporteur on extreme poverty and human rights, Philip Alston was moved to comment:

The World Bank … steadfastly refuses to use the language of economic and social rights … The IMF, for all of its enlightened concern about the consequences of inequality is every bit as resistant as the Bank to taking any account of human rights in its work.92

Nonetheless, it may be hoped that, with Alston’s own appointment, change is afoot at the institutional level. His statement to the 29th session of the HRC certainly gives cause for optimism:88 M Salomon, “Of Austerity, Human Rights, and International Institutions” 21 EJIL (2015) 521, at p. 53889 G. Teubner Law as an Autopoietic System (Blackwell 1993)90 “Root Causes” p. 6291 Ibid. 6992 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16131&LangID=E

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It is instructive to move beyond the situation in these halls and look at what has been happening in the outside world. … we need to recognize that the concern is … with a range of extreme inequalities in relation to wealth, access to education, health care, housing and so on. … while a great many steps will need to be taken if extreme inequality is to be halted, the Council needs to do more than just adopt fine words.93

However, Alston himself expresses some doubt, continuing: “For over 25 years, independent experts have been submitting reports warning of the consequences of inequality, but nothing has been done in response.”94 This neatly reframes the question: how is it that all of the fine words and sentiments expressed in academic writings and UN reports have missed their mark, been co-opted, or ignored?

I suggest that there are structural reasons, inherent in human rights analysis, discourse, and demands which help to explain this apparent lack of impact. The movement’s commitments to its internal purity and assumed hierarchical superiority preclude analysis of its messy entanglements with other aspects of international law. To demonstrate this, I sketch four different points of (dis)engagement between human rights and international law’s project of facilitating and managing poverty.

Two important misunderstandings must be engaged as a prelude to analysis. First, good intentions are neither sufficient, nor a defence from negative consequences, and, secondly, intervention is never a question of doing ‘something’ or ‘nothing’, it is always active, and bears the possibility of negative as well as positive consequences. Thus we must reject the humanitarian myth that intervening is at worst neutral, and so always preferable to not intervening. Furthermore, following Anne Orford’s analysis, we must also nuance our conceptions of intervention. Trade, investment, conditional loans, intellectual property regimes, and so on, are all forms of intervention of at least equal importance to the ‘white knight’ interventions on which we are encouraged to focus.95

So, human rights critiques take place within a context of endemic intervention, of the enmeshing of First and Third World economies.96 They are not neutral and nor is the terrain on which they act – they are political interventions with political consequences. These consequences present a predictable pattern: exoneration of the affluent, pathologization of the impoverished. This occurs on any of at least four registers.

1. Distraction: where attention focuses on the generation of ever more precise rights, rather than the amelioration of the plight of the poor.

2. Localization of pathology: where the poor, and their governments, are made to bear exclusive blame for their poverty.

3. Complicity: where human rights are co-opted by the WTO regime to provide an alibi, and thus legitimation.

93 Ibid94 Ibid.95A Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP Cambridge 2003).96‘Recognized and Violated by International Law’ (n 31).

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4. Distortion: where human rights adopt and promote a false history of development.

These four registers exist complementarily, and function alongside what David Kennedy has identified as human rights’ ‘hegemony over the space of emancipatory politics’.97 However, I wish to consider them in turn, and also to emphasize an important distinction between them: while the first ‘engagement’ distracts from the problem and any possible solutions; the latter three are active parts of the problem of extreme global poverty.

4.1 Human Rights as Distraction

Poverty, we are frequently informed, is a human rights issue. This is important, because human rights are important. If poverty breaches human rights, then poverty itself is wrong, and has no right to exist. And yet poverty continues, stubbornly, to exist. Attention then turns to two foci: proving that poverty is a human rights violation; and proliferating ever more precise rights to make it clear to poverty that it has no right to exist, and should vacate the premises.

Each strategy is completely detached from reality, and from the economic imperatives which preclude its realization. Focus turns to the ideal, the design of the normative web of the human rights project itself. It is precisely in constructing this fantasy world of legal perfection that advocates and acolytes fall foul of Kennedy’s charge that it becomes more important to feel part of a good project than to effect positive change in the world.98

This is a project of good intentions and negative effects. Due to both the radical indeterminacy of international law and the largely ‘unrealized’ nature of human rights, progressive political demands can always be dressed in the garb of human rights: the right to life can be interpreted to include freedom from extreme want; the right to health to demand access to pharmaceuticals; rights to food, water, development, and so on, can be interpolated. New conventions can be pursued, final acts and declaratory statements proliferate; but facts on the ground do not change.

Human rights compensate for their lack of traction by growing ever more righteous and Messianic. Hegemonic as all functionally differentiated regimes are,99 the human rights regime is also a mass producer of ever newer and more precise legal norms. Norms are brought declaratively into existence, designated as ‘interpretations’ (concretizations) of existing norms, new customary norms, or even general principles of law. Human rights norms are allowed to proliferate on the twin conditions that they are nice, and that they have no strong demands for realization in the actual world of distributions and outcomes. In other words, the increasingly dense web of human rights demands functions in a purely normative world, in which the only concern is to provide a fixed point from which the real world can be assessed and critiqued.

97 D Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights Journal 101–25.98 Ibid.99 ‘Fragmentation, Openness, and Hegemony’ (n 71).

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This fantastical structure is central to understanding the functional economy of the human rights discourse: because they are largely deinstitutionalized—or promulgated only within weak institutional structures—human rights claims are hugely flexible. There are few courts to strike down such claims, and thus each practitioner can imagine their interpretations to be correct. Without having to confront the probability that their claims would not be institutionally endorsed, they can use them as a ‘neutral’ vantage point from which to castigate a recalcitrant reality.100

Presented in such a peremptory manner, the demands of human rights appear objective, impartial, and necessary: they fall precisely into the category Unger has termed ‘false necessity’.101 However, as Marks has noted, any understanding of false necessity must be complemented by an understanding of false contingency.102 Although almost any political claim can be re-presented as a competent legal argument, not all have an equal chance of realization; indeed some have almost no chance of being actualized in the real world. This expansion of perspective also facilitates a change of focus: instead of analysing which human rights norms ‘exist’, or even the conditions for the proliferation of such norms, attention must turn to which norms might be realized, which will not, and why this is so. Put differently, we should focus on when progressive political aims (such as the mitigation of poverty) might be advanced by advocating human rights claims, and when they will not. False contingency teaches us that there are reasons why some norms are actualized and others are not, and that these have little or nothing to do with any intrinsic legal or ethical quality of the claims advanced.

In trying to represent the law either positivistically ‘as it is’ (and as it is ‘ignored’) or through natural law, as ‘the best it can be’ (the international legal system ‘in its best light’)103 the human rights movement (which, in reality oscillates between these strategies) structurally precludes itself from acknowledging or perceiving the dynamics, forces, and structures causing international law to do what it in fact does; from analysing it as it is in fact applied, not ignored. The link between wealth and poverty is systematically obscured, and this leads to the ‘breach’ of these rights—the non-actualization of these interpretations, imaginations, and demands—being attributed exclusively to local causes.

4.2 Localizing Pathology

Analogous to what Pogge has termed ‘explanatory nationalism’,104 this aspect of the human rights engagement claims that a nation’s economic development is an expression of its ‘moral worth’.105 The localization of pathology functions through both the analytic suppression of structural causes and the unconscious inversion of

100 J Beckett, ‘The Economics of Fantasy: Reflections on the Resurgence of Formalism in PIL’ (2012) 1(3) ESIL Reflections <http://www.esil-sedi.eu/node/208>; ‘Faith and Resignation’(n 80).101 RM Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (Verso New York 2004).102 S Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1–21.103C Basak, ‘On Interpretivism and International Law’ (2009) 20 European Journal of International Law 805–22.104 ‘World Poverty and Human Rights’ (n 2).105J Rawls, The Law of Peoples, with the Idea of Public Reason Revisited (Harvard University Press Cambridge MA 2001) at 108.

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cause and effect.106 This strategy begins with the unstated assumption that developing countries have both access to, and control over, sufficient resources to alleviate poverty within their borders; all that is lacking is the political will to do so. It further assumes that the developed world has no role, or interest, in the perpetuation of global poverty. All but one of these assumptions is false.

Many developing countries do have rich natural resource deposits; however few have much control over the disposition of those resources.107 Generally, this control is ceded to foreign multinational companies, at the dictates of international financial institutions, the WTO, China, the USA, or the EU.108 Developed countries require access to those resources at ‘market rate’,109 and access to cheap labour to extract and ship, and even occasionally refine, those resources for export. The localization of pathology functions to disguise these external or international factors.

With haunting echoes of its colonial past, the discourse starts by portraying the peoples and political cultures of developing states as backward, primitive, even barbaric: in need of tutelage and correction.110 Focus on rights violations, corruption, and the absence of democracy helps to construct an implicit image of the uncivilized other: savages and victims, awaiting our saviours.111 The obsessive Western focus on female circumcision makes most sense within this political economy; as does the formal legal prohibition of ‘harmful traditional practices’,112 pitting as it does ‘tradition’ against modernity, the backward peoples of Africa and Asia, whose ‘traditional practices’ compare poorly with their implied opposite, Western Civilisation.113

Africa, in this imaginary, is plagued by poverty because it is backward and barbaric, corrupt and undemocratic, a continent which prefers bloodshed and the mutilation of its daughters to progress toward enlightenment, development, and freedom. This is the implicit message of the human rights critique, which neatly sidelines Anghie’s query: just why do so many former colonies have a physical infrastructure connecting resource deposits in their centres to harbours on their shores?114

106 ‘Human Rights and the Bottom Billion’ (n 19).107 K Annan, ‘Africa Plundered by Secret Mining Deals’ (10 May 2013) BBC<http://www.bbc.co.uk/news/world-africa-22478994>.108 J Ferguson, Global Shadows: Africa in the Neoliberal World Order (Duke University Press Durham 2006).109 See above nn 36–40 and 54–62 and accompanying text. See also World Poverty and Human Rights (n 2) 1–32 (‘General Introduction’).110 W Rasch, Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political (Routledge London 2005) at 139–42.111 M Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal201–45.112Convention on the Rights of the Child (20 November 1989) GA Res 44/25 UN Doc A/RES/44/25; Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) GA Res 34/180 UN Doc A/RES/34/180.113 S Harris-Short, ‘International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child’ (2003) 25 Human Rights Quarterly 130–81.114 See ‘Finding the Peripheries’ (n 27).

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Running parallel to the construction of this blameworthy caricature is an equally implied, equally unanalysed reversal of cause and effect. The ‘development-minded’ British Prime Minister provides an excellent contemporary illustration:

But I also think it is important we look at those things that keep countries poor. Conflict, corruption, lack of justice, lack of the rule of law.115

Even the UN has realised that poverty causes conflict more often than conflict causes poverty.116 The same is true for the other ‘causes’ listed: why is it more likely that corruption causes poverty than that poverty causes corruption; or the absence of justice, or the rule of law? Conversely, would the presence of the rule of law eradicate poverty; or would the eradication of poverty enable the realization of the rule of law?

It is better to understand poverty, in Marks’ striking phrase as ‘planned misery’; ‘to suppose that the conditions which create vulnerability to hunger and malnutrition ... exist at least in part because they benefit some groups of people, even as they massively disadvantage others.’117 Poverty is not caused by corruption, lawlessness, or conflict, instead these are systemically explicable effects of poverty; a poverty which is itself explicable through the advantages to be drawn from exploitation of human and natural resources in the ‘developing world’. Images of backwardness and barbarism are deployed to disguise this systemic logic; effects are presented as causes, and the pathologies of poverty conveniently localized.

4.3 Human Rights and International Economic Law

The efficacy of the first two encounters relies on the belief that human rights exist in an important normative reality, unaffected by their lack of actualization; and the plasticity this brings to human rights analysis.118 The third engagement is altogether different, an effect of human rights’ parallel attempt to gain traction in the realm of actualized or enforced law. The attempt ‘to mainstream human rights into the work of the WTO’119 begins thus: ‘Although the WTO cannot mutate to a human rights organization, it must ... acknowledge the human rights effects of its work in order to maintain credibility.’120

As it is the primary responsibility of states to protect human rights and pursue human rights principles, the challenge posed by globalization is to ensure that states liberalize trade in ways that are in harmony with their [human rights]obligations.121

115 False Necessity (n 101)116‘Human Rights and Root Causes’ (n 1) 62.117 Ibid.118‘The Economics of Fantasy’ (n 99).119 GM Zagel, ‘WTO & Human Rights: Examining Linkages and Suggesting Convergence’ (IDLO Voices of Development Jurists Paper Series Vol 2 No 2 2005).120 Ibid.121 Ibid.

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However, this ‘primacy’ exists only in the minds of human rights advocates.122 For trade lawyers, no rights could be realized without the benefits of exchange, thus trade law has primacy; for environmentalists, there can be neither trade nor rights without a living environment, and their concerns have primacy. There is no a priori reason to accept any particular one of these claims.

What is clear, however, is that WTO law has institutional primacy over other systems. This is, after all, the core incentive in seeking recognition by, or coherence with, the WTO system: access to its dispute resolution structure.123 Engaging with the WTO is an attempt to actualize human rights norms. It is, however, a strategy doomed to failure, because the concerns of human rights lawyers with “who has authority and jurisdiction to interpret and apply broadly defined human rights standards are [motivated by] the fear that human rights may be subjected to trade law, given the relatively powerful and unique position of the WTO and its dispute settlement mechanism.”124

As interpretative power must be traded for the possibility of actualization, human rights advocates lose the flexibility that non-institutionalization gave them. Rights are subject to fixed, restricted, meanings; and claims that a breach of the advocate’s favoured interpretation equates with an objective breach of human rights lose credence. The WTO is able to ‘maintain credibility’ (indeed gain legitimacy) by acknowledging human rights standards, even though it then subjects those to its own imperatives.125 All that occurs is a change of vocabulary; unaccompanied by any emancipatory effect:

Human rights become a means by which society is subordinated to the imperative of economic growth through markets.126

The effect of the human rights engagement here, like that of its critique above, is to legitimate the present system, and exonerate its beneficiaries.

4.4 Human Rights and the Imagined History of Development

The plasticity of human rights allows them to function as a hysterical distraction, fabricating an ideal normative world instead of engaging with the realities of this one. In localizing pathologies, they distract attention from the linkage between poverty and wealth, and in seeking actualization they help legitimate the WTO system, and the resource flows it enables. Each movement plays out within a white saviour dynamic: we provide the structure of our lives as a normative model for their salvation; we pathologize their leaders to open the route to salvation; and we ‘mainstream human rights’ into trade law as a mechanism to enable that salvation.

122 S Pahuja, ‘Rights as Regulation: The Integration of Development and Human Rights’ in B Morgan (ed), The Intersection of Rights and Regulation (Ashgate Aldershot 2007)167–91, at 170.123 ‘Fragmentation, Openness, and Hegemony’ (n 71).124T Cottier, J Pauwelyn, and E Burgi (eds), Human Rights and International Trade (OUP Oxford 2006).125 ‘Fragmentation, Openness, and Hegemony’ (n 71).126‘Rights as Regulation’ (n 121).

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What is missing is an analysis of our development, and an understanding of the relationship between our wealth and their poverty. The final aspect of the human rights ‘critique’ obscures even the recognition of this absence. Human rights discourse is implicated in a radically false history of development:

As a satisfactory human rights situation also improves the economic development and attractiveness of a state, human rights and economic development are not contradictory but mutually support each other.127

In this universalised reversal of the localization of pathology two new myths emerge: the myth of our ethical development; and the myth that by emulating our practices, the under-developed countries could access our lifestyles. This is, in short, the imaginary history in which from respect for human rights and the rule of law, flow democracy and material wealth; the standard, colonialism-free, hagiography of international law.

In this history the realization of rights preceded economic development, and neither had anything to do with colonial expansion or expropriation. That account is factually wrong,128 and logically untenable. It is also ideologically very effective in maintaining the status quo by removing the ladder up which we climbed. Projected into the present it takes on a common-sensical (though implausible) form: developing countries need to implement human rights and respect democracy and the rule of law, then economic development will follow. Conversely, if these conditions are not met, then development cannot be expected.

This obscures the fact that in the developed countries, industrial development—financed by massive colonial exploitation129—financed the realization of rights and democracy. An understanding of the role and scale of colonial exploitation in European development is vital to any honest understanding of the history of development. The role of colonialism is elucidated by W. E. B. Du Bois:

It is ... a new democratic nation composed of united capital and labor that is exploiting the world ... the laborer’s equity is recognized . . .Such nations it is that rule the modern world. Their national bond ... is increased wealth, power, and luxury for all classes on a scale the world never saw before. ... Whence comes this new wealth and on what does its accumulation depend? It comes primarily from the darker nations of the world—Asia and Africa, South and Central America, the West Indies and the islands of the South Seas.130

For George Orwell, the key was:

[T]he prosperity of British capitalism [and] ... the maintenance of the British Empire, for the wealth of England was drawn largely from Asia and Africa.

127‘WTO & Human Rights’ (n 118).128 ‘Finding the Peripheries’ (n 27); J Newsinger, The Blood Never Dried: A People’s History of the British Empire (Bookmarks London 2006); Late Victorian Holocausts (n 19); Open Veins of Latin America (n 19).129 Open Veins of Latin America (n 19).130‘The African Roots of War’ (n 75).

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The standard of living of the trade-union workers ... depended indirectly on the sweating of Indian coolies.131

The issue of scale is also critical:

In 1947 ... Malayan rubber was the British Empire’s biggest dollar earner, bringing in $200 million, compared with the $180 million earned by British manufacturing industry ... Between 1946 and 1951 the colonial sterling balances held in London increased from £760 million to £920 million, a massive transfer of funds that gives lie to the pious rhetoric ... regarding colonial development.132

Colonial expansion and exploitation directly financed European development. Without this the evolution of civil and political rights would not have been possible. The Vienna Human Rights Conference’s famous indivisibility and interdependence of human rights,133 is true only in a counter-intuitive fashion: only if the material wants represented by ‘second generation’ rights are adequately satisfied can ‘first generation’ rights be realized or respected. Respect for any and all human rights requires material wealth; consequently, such respect cannot be made a precondition for accessing wealth.

More importantly, the false history and modern myth also disguise the fact that the living standards currently enjoyed in the developed world are subsidized by the continuing exploitation of the developing world: there are not sufficient resources for everyone to enjoy our ‘developed’ lifestyle.134 The promise of development cannot be realized, and human rights critiques function to disguise this fact by setting impossible conditions for the entitlement to develop.

5. Conclusion

Almost a century ago, Du Bois raised the central question of colonial poverty:

How can love of humanity appeal as a motive to nations whose love of luxury is built on the inhuman exploitation of human beings, and who ... have been taught to regard these human beings as inhuman?135

This remains apt in a decolonized world, in which love of humanity will not motivate action on a sufficient scale.136 Worse, now that we have been taught not to perceive the dehumanization of others, we are unlikely to link the luxuries of our lives with the deprivations of theirs.

131 G Orwell, ‘The Lion and the Unicorn (1941)’ in The Collected Essays, Journalism and Letters of George Orwell (S Orwell and I Angus eds) (4 vols Secker and Warburg London 1968) vol 2, 74–133, at 113.132 The Blood Never Dried (n 127) 207.133Office of the High Commissioner for Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993) UN Doc A/CONF.157/23 para 5.134‘Humanity Falls Deeper into Ecological Debt’ (n 25).135‘The African Roots of War’ (n 75).136 L Abu-Lughod, Do Muslim Women Need Saving?(Harvard University Press Cambridge MA 2013).

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The love of humanity—whether institutionalized as human rights or not—can however function very adequately to allow us to misunderstand the problem of world poverty, and thus to efface our implication therein. If poverty is understood as being caused by a combination of geography and localized human rights abuses, then any intervention on our part seems altruistic, an illustration of our humanity and charity. This has two important effects: our charity is always curtailed by our love of luxury; and the predicament of the world is fundamentally misrepresented.

Charity encourages us to believe in our entitlement to what we already have; and our generosity should we choose to share from this. In this paradigm, ‘we’ are normal—indeed we are the norm—and hence justified. We have no implication in ‘their’ problems. It is through goodwill that we intervene (charity) to help them overcome misfortune (not injustice),137 to become more like us; to follow in the imaginary footsteps of our inverted history. In the sense developed by Marks, this creates a ‘false’ understanding of the world;138 an understanding where much of importance is neglected or relegated to the shadows. Effects are perceived as causes and inappropriate solutions are imposed.

As a result, human rights are not only the wrong lens through which to analyse the relationship of law and development, they are the worst possible lens. The comforting story of law identifying wrongs, categorizing them as rights abuses, codifying, and being implemented to effect their reduction, or eventual eradication, is simply false. The progress narrative is prima facie falsified by the signal lack of ‘progress’. The law has persevered with its original tasks: the production and perpetuation of poverty, and the direction and regulation of the resource flows this facilitates.

The standards by which the human rights movement ‘neutrally’ evaluates the world not only enshrine a very Western Eurocentric understanding of humanity and society, they also—more importantly—require our economic privilege for their practical realization. Human rights compliance does not make a society rich, quite the contrary; a society must already be rich in order to afford human rights compliance.

However, by allowing themselves to become embroiled in an inverted history, human rights have degenerated into—or revealed their essence as139—instruments of stasis; techniques to ensure the stability of the status quo. By understanding rights as a cause, not an effect, of development, this discourse deprives the impoverished of even the moral right to develop. While international law denies the poor the conditions to attain material development, human rights analysis denies ‘developing countries’ the conditions to deserve material development or equality.

Global poverty occupies a unique position as both the ‘blind spot’ and raison d’être of an international legal system that has long attempted to secure a veneer of co-operation, justice, and legitimacy over a reality of competition, conquest, and exploitation. As such, it vividly illustrates the radical indeterminacy, and

137 This key distinction is developed in JN Shklar, The Faces of Injustice (Yale University Press New Haven 1992).138‘False Contingency’ (n 101) 16.139 R Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (OUP Oxford 2001) at 168–72.

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‘schizophrenia’ that ‘tear apart the fragile structure’140 of international law. That this contradiction appears to be little analysed, that there is so little conversation to detail, is testament to the strategies deployed to naturalize, excuse, and obscure the ‘fact’ of poverty. It is time finally to confront our implication in, and subsidization by, the perpetuation of extreme global poverty.

140‘Faith and Resignation’(n 80); JA Beckett, ‘Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project’ (2006) 7 German Law Journal 1045–88.

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