Khan International Economic Rights
| Publication year | 2000 |
Gonzaga Journal of International Law
Gonzaga University
Zeshan Khan received his BA in religious studies and English from the University of Florida. He graduated magna cum laude in 1994. He received his JD from the Chicago-Kent College of Law in May of 1999. He is currently working as an associate for the law firm of Johnson, Graffe, Keay, and Moniz in Seattle, Washington. He would like to thank Professor Bart Brown for his insight and guidance in this and other projects.
With an increasing disparity of global wealth,2 more and more peripheral groups question the substantiation of the current economic legal order. Recently, some critics have gone so far as to state that economic and social rights should be placed on an echelon equal to that of "basic" international human rights such as the freedom from racial discrimination, the freedom from slavery, and the prohibition against torture, as well as "liberal" rights such as the freedom to a fair trial and freedom of speech.3
This paper is an evaluation of economic rights, as they currently "exist," as they are currently fought for, and the conditions necessary to bring about their future existence. Economic rights have been commonly linked to social rights. But economic rights have similarly been allied with civil and political rights in recent years. Dubbed "second generation" rights,4 economic rights (and their brethren, social rights) currently play a subordinate role to the preservation (or achievement) to civil and political rights.5 But a small, yet strong movement has begun that seeks to incorporate economic rights in international legal discourse with the same attention that is paid to civil and political rights. I believe one necessary element in facilitating the growth and implementation of economic rights is the moderation of global market liberalism.
It is my contention that economic rights are essential to the maintenance of civil and political rights. Indeed, I feel that civil and political rights are ultimately fruitless without heeding the constraints laid out by economic rights conventions such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and regional agreements such as the Organization of African Unity Charter (OAU), the Banjul Charter, and the Additional Protocol to the American Convention of Human Rights in the Area of Economic, Social, and Cultural Rights (to name a few). Since drafting such international agreements, economic rights have been minimally seen in international legal discourse. The failure to properly implement these rights comes in large part because of the maintenance of a global economic hegemony. But growing concern over the effects of centralized wealth have forced international organizations such as the World Bank, and regional conglomerations of states to begin rethinking the idea of providing basic material goods for citizens.
Accordingly, this paper is divided into two main parts. The first addresses the history, construction and nature of economic rights. Here, I will define my use of the concept of "economic rights." I will also briefly discuss the history of economic rights movements in recent times. This will include current covenants and agreements between nations, both global and regional. But I will also discuss here how progress in implementing economic rights has moved much more slowly it has for than their civil and political counterparts.
The second part of this paper discusses the conditions necessary to promote economic rights. Much of this section is a critique of unfettered capitalism, using primarily World-systems analysis. However, I do not intend for this to be an endorsement of Marxism. To establish the tenants of Marxism in an international sphere would greatly exceed the limits of this paper. Instead, my arguments will only echo Marxian critiques of capitalism. By using Marxian critiques of global capitalism, my intent is to unravel the manner in which unimpeded capitalism harms the advancement of economic rights. Marxism (or its progeny) is not a prerequisite for economic rights. But unfettered capitalism is certainly an impediment for their advancement. Economic rights presume a certain amount of economic development. Hence, my seemingly Marxian analysis is a necessary tool with which to temper global market liberalization, and provide what I believe are the necessary preconditions to flourishing economic rights.
I have incorporated certain basic assumptions into this paper. One is that the ability for people to govern themselves, i.e., democratically, is necessary for the protection of all human rights.6 As Professor Franck has argued, self-determination is the cornerstone of democracy.7 Conversely, Professor Franck makes the argument that democracy is the cornerstone to self-determination.8 The basic purpose of human rights and democracy demonstrate an innate connection between these two concepts. Human rights hope to protect individuals and subjected groups from governmental impositions. Democracy presumes that these individuals or groups have some say in that very government. Thus, democracy ideally presumes the ability to protect one's rights by the representative process.
Where the two fail to overlap is the subjugation of a minority group to the will of a tyrant majority. It is here that international covenants come into play to protect the rights of these minority members from a democratic minority.
Hence, to some degree, this democratic presumption also carries over into the global arena. If a domestic tyrannical majority supposedly violates the rights of a minority, it is the international community that will determine, democratically, if such state action is violative of human rights. But this ideal presumes that a global democracy is in place where the interests of an elite few do not take precedent over a majority opinion, unless that majority opinion reflects a bias that is hazardous to the preservation of fundamental human rights.9 In the end, even international democracy is prone to the very majoritarianism that domestic democracy is. But I assume that with a greater number of investigators, spread throughout different contexts, that a more equitable solution can be made.
A second assumption is that there is pure continuity between economic self-determination to social self-determination to the preservation of the "basic" human rights. This assumption is important mainly because I would be foolish to believe that all three are transmutable. They are not. But part of my contention is that the three are, at least partially, causal to one another. Regardless of examples that may demonstrate when economic and social self-determination have not directly led to the recognition of civil and political rights, I believe that at some level, civil and political rights cannot be promoted if vast poverty leads to social and political disenfranchisement.
Both of these assumptions work off the basic premise that like civil and political rights, economic rights impose on the state the obligation to: (1) respect the enjoyment of economic rights, (2) protect the enjoyment of these rights from third parties, and (3) fulfill the implementation of these rights through appropriate legislative, administrative, budgetary, and judicial measures.10 And democratic involvement (and corresponding self-determination) is required for the realization of these rights. It is hard to imagine a condition where a state is properly responsive to the needs of its citizenry without some level of democratic structure. So although my assumption of democracy may be less an assumption than a presumption, it is still important to designate why democracy is a precondition to the realization of economic rights.
Economic rights have existed for many years, predating the UN Charter.11 In fact, some scholars have suggested that economic rights have had a place in the international arena longer than civil and political rights.12 But, President Franklin D. Roosevelt first brought the idea of economic rights to the forefront of contemporary international legal discourse. He characterized economic rights as the "freedom from want": "[t]he right to a useful remunerative job. . . [t]he right to earn enough to provide adequate food and clothing and recreation. . . [t]he right of every family to a decent home. . . [t]he right to adequate medical care. . . [t]he right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; [and] the right to a good education.13 The ICESCR expanded these ideas to include economic self-determination, 14 favorable working conditions,15 and the right to a trade union.16
Some contemporary scholars have focused on Article 11, paragraph 1 of the ICESCR to determine what is an essential economic right.17 This Article alone reads more narrowly than President Roosevelt's proposal: "The States...
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