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Overview
The opening chapters of this volume provide a framework within which to position the future theoretical development of international poverty law. The rest of the book explores specific human rights initiatives that address particular aspects of poverty. These include an overview of human rights conventions and how they can be connected to international poverty law; measures required to counter the tendency of intellectual property law as applied to biological products and processes to undermine food security; the right to food as framed in United Nations development documents; the potential role that voluntary codes of conduct currently being adopted by some transnational corporations might play in poverty reduction; and the startlingly important development in the new South Africa of an alternative vision of constitutional law that takes account of international human rights instruments in moving towards rendering social and economic rights justifiable.
Product Details
| ISBN-13: | 9781848137103 |
|---|---|
| Publisher: | Bloomsbury Publishing |
| Publication date: | 07/04/2013 |
| Series: | International Studies in Poverty Research |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 256 |
| File size: | 574 KB |
About the Author
Read an Excerpt
International Poverty Law
An Emerging Discourse
By Lucy Williams
Zed Books Ltd
Copyright © 2006 CROPAll rights reserved.
ISBN: 978-1-84813-149-1
CHAPTER 1
Towards an emerging international poverty law
LUCY WILLIAMS
Legal rules significantly affect the distribution of income, assets and power. While often perceived as natural (both in the sense of arising without human intervention and reflecting a natural order), legal rules are chosen – frequently to benefit the interests of parties and/or nations in power. Specifically, the background rules of property (now including intellectual property), family, contract, legal capacity and tort law partially create and perpetuate wealth imbalances within and between nations. Thus whether one is considering current economic structures within nation-states, those earlier imposed by colonizers on colonized states, or those dominating the increasingly globalized economy, legal rules are deeply implicated in maintaining and strengthening status quo power and wealth inequalities, resulting in substantial poverty worldwide.
The Comparative Research on Poverty Programme (CROP) seeks to understand and expose the legal structures that perpetuate poverty and to develop new strategic models for reducing poverty, locally and globally. CROP works with poverty advocates worldwide, seeking to re-envision legal discourse and practices in the hope that transformative lawyering can become an even more effective tool for redressing poverty. Through CROP's Law and Poverty workshops, anti-poverty advocates explore trans-national and cross-cultural poverty issues within the context of the increasing integration of the world economy, with an eye towards understanding how the different cultures and sub-cultures within which we work either perpetuate poverty and/or offer sites in which to fight against it.
The chapters in this book are revisions of papers originally presented at the CROP Law and Poverty Workshop IV, which met at Onati, Spain, in May 2001. As a whole, the collection is intended as a contribution to the emerging discourse of international poverty law (IPL). IPL is committed to global poverty reduction and to trans-national, multi-disciplinary legal research and dialogue dedicated to that goal. We seek to incorporate IPL into the legal mainstream. Expansion of the boundaries and concerns of the legal discourse regarding poverty reduction is essential for at least two reasons, one related to nation-state borders and the other to disciplinary borders:
1) Advocates for economic redistribution and poverty reduction customarily operate and conceive their advocacy within a nation-state context. Anti-poverty legal policies are not generally formulated within a transnational perspective (with the exception of some work within the economic development literature). It is by now clear, however, given the steady integration of the world economy, that poverty cannot (if it ever could) be understood, let alone contested, solely within national borders. Acknowledging this in no way negates the critical importance of local grassroots mobilization. Local anti-poverty empowerment initiatives cannot, however, be viewed in isolation from cross-border poverty reduction strategies. Thus, while anti-poverty advocates must work to establish or increase public education, nutrition programmes and effective public health systems within their respective nation-state contexts, we must also understand and position our work within the global economy by immersing ourselves in and challenging the structures of international finance, production and trade which perpetuate poverty on a world scale.
2) While establishing its identity and discursive unity, IPL must critically appreciate and draw upon a wide range of legal discourses. Indeed, most disciplines within law, for example property, trade and finance, labour, contract, tort, taxation, intellectual property, immigration and international law, have implications for poverty, and the legal rules that constitute and perpetuate poverty are intimately shaped by law and policies deriving from those other disciplines. Yet advocates and scholars in those legal fields often ignore the centrality of poverty to their respective disciplines, and virtually all have failed to appreciate how their fields intersect to support systems that perpetuate poverty and a grotesque maldistribution of resources on a global scale. As it develops, IPL must identify the connecting threads in legal thought and practice that reinforce poverty. At the same time, IPL must assimilate mainstream legal learning across disciplines in order to develop more sophisticated legal analyses for addressing poverty.
This introduction seeks to provide an intellectual framework within which readers can position and understand the book's chapters. My major purpose is to set out the theoretical and practical threads that draw the chapters together and to provide a possible springboard for future work, criticism and methodological development within IPL.
International poverty law: theory and methodology
Individually and in dialogue, the chapter authors seek to advance the theoretical range and sophistication of IPL and, thereby, its usefulness in developing legal strategies to reduce poverty. They work within and approach issues of poverty from numerous, distinct geographical, disciplinary and methodological contexts and perspectives. Many of the authors, although by no means all, rely heavily on human rights discourse and United Nations (UN), International Labour Organization (ILO) and World Trade Organization (WTO) initiatives as their primary legal sources. The tension between the particularity of local knowledge and problems, on the one hand, and the ambition to find global, common legal ground, on the other, generates a series of rich insights. These, in turn, problematize the human rights discourse.
The first two chapters provide a framework within which to position the theoretical development of IPL. St Clair explores the virtues of addressing poverty reduction through a human rights discourse. She carefully considers two major objections to this methodology, namely that human rights discourse is empty rhetoric because of weak or non-existent legal enforceability, and that human rights discourse is pervasively informed by libertarian perspectives. St Clair acknowledges that the ambiguous notion of liberty in the UN's Human Development Report 2000 (HDR 2000) appears to endorse dichotomies between negative and positive rights, and between first- and second-generation rights, and she criticizes the rights model as one that may 'import many market values incompatible with the practical fight for poverty reduction'. She attempts to recast rights rhetoric by invoking Amartya Sen's capabilities approach and rights-goals theory. Although ultimately she embraces the human rights approach as one tool for reducing poverty, she exposes many of its flaws and cautions that a rights model must be supplemented by other moral and political approaches, including theorizing some human rights as 'global public goods'.
Fortman also draws on HDR 2000, although he recognizes that rights are only 'abstract acknowledgements of claims'. He differentiates between rights, entitlements (a 'legitimate command' over a particular good or service) and claims (the 'concrete act of acquirement'), incorporating Sen's entitlement-failure theory. He rejects the distinction between moral rights (rights without remedies) and legal rights, noting that all rights 'require performing behaviour on the part of those who hold them'. He emphasizes that rights enforcement can be achieved through the informal mechanisms of 'living law', as well as through formal legal processes. Thus, even if human rights are difficult to enforce, human rights discourse provides political instruments and can establish a normative statement of a moral code that might support social change.
Building on the theoretical framework set forth in these first two chapters, the next five chapters explore specific international human rights initiatives that address a particular aspect of poverty. The authors grapple with many of the questions raised by St Clair and Fortman within distinct local and methodological contexts, seeking to expand IPL's capacity to address discrete aspects of poverty.
Prieto-Acosta explores the relatively new field of international intellectual property (IP) law as applied to biological products and processes and the ways in which this international law is undermining food security. Initially focusing on the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and US intellectual property law, she documents the legal advantages enjoyed by developed nations which have a more advanced biotechnological sector and IP legal structure. She questions whether, by allowing biotechnology companies in these countries to patent food crops, seeds and genetic material that have been 'natural' for generations in lesser developed countries (LDCs), a new form of 'privatization' is occurring, i.e. ownership by private companies of previously publicly held genetic material. The result of this 'biopiracy' is that farmers in the LDCs are increasingly dependent on the biotechnology companies, by, for example, farmers being required to 'buy back' previously indigenous seeds. Prieto-Acosta articulates specific counter-measures that might address this issue, particularly focusing on the Convention on Biological Diversity.
Like Prieto-Acosta, Aoued takes on issues of hunger and malnutrition, albeit from a quite different perspective. Aoued situates his discussion within the international human rights discourse of right to food (RTF), discussing the framing of RTF in UN development documents that focus on adequacy and sustainability. He highlights the appointment of a UN Special Rapporteur on the Right to Food as indicative of the growing normative body of law supporting this concept, and discusses the pros and cons of the three 'axes of intervention' provided for the Special Rapporteur to further the RTF. While critically questioning the ability of international public law to serve as the site for IPL development, he advocates ongoing international dialogue and exploration of this field as a forum for poverty reduction.
Olivier and Van Rensburg articulate the discussion of poverty reduction within the circumstances of the new South Africa, addressing the linkages between international human rights undertakings and the developing interpretation of the 1996 South African constitution, which entrenched socio-economic rights in the constitution with no first-generation/second-generation distinction. Noting the constitutional mandate that the judiciary must consider international human rights law in interpreting the social rights contained in the constitution, the authors explore the ways in which the Constitutional Court has relied on language or interpretations of international human rights initiatives in their decisions, primarily focusing on The Government of the Republic of South Africa and Others v. Grootboom and Others. This chapter presents an alternative vision of constitutional law, one in which social and economic rights are justiciable, and one in which the principles of human dignity and solidarity (within South Africa, ubuntu) are central not only in structuring a social security system, but also in preventing social exclusion.
Saini draws connections between poverty, illiteracy and child labour in India. He focuses on poverty as a lack of opportunity and argues that one of the most basic opportunities in addressing poverty is the availability of primary education. He documents the extent and causes of child labour and lack of school attendance in India. Recognizing the inertia of the Indian government in addressing these issues, he evaluates the impact of international human rights initiatives connected to child labour. While persuasively demonstrating the importance of international (primarily ILO and UN) poverty directives in pressuring states to articulate specific human rights for children, he also questions the fundamental effectiveness of such measures. Saini then moves into the trade agreement negotiation arena, taking on the complex and highly controversial issue of incorporating or attaching 'social clauses' to WTO trade agreements. Recognizing the multiple and often disingenuous motives of developed nations' actors in trade initiatives, he assesses the national impact of international pressure generated by these discussions and ultimately advocates the use of social clauses to the extent that they reduce child labour and encourage primary education.
Voiculescu pushes our thinking beyond national or even international governmental regulation, agreements or initiatives to consider how poverty reduction advocates must engage with transnational corporations (TNCs) and incorporate them into the anti-poverty discourse. She explores the possibilities of bridging gaps between economic growth and human development, or 'privatized' human rights, through corporate codes of conduct encouraged by UN instruments, ILO conventions and OECD guidelines. She suggests reasons why TNCs might support such codes (not the least of which is to maintain their self-regulatory status), and views voluntary codes of conduct as particularly useful in areas that would prompt public outrage (such as child labour). She cautions, however, that anti-poverty advocates utilizing voluntary codes must carefully develop and incorporate democratic checks and balances into their strategies.
The book concludes with Amitsis's chapter, which provides an overview of human rights documents and connects IPL to this textual framework. He looks at a number of the human rights instruments discussed earlier (including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, UN Action Programmes implementing the Vienna Declaration of Human Rights and the Copenhagen Declaration on Social Development), analysing each in terms of the specific principles and concepts that comprise the legal discourse of poverty reduction. He positions each initiative within the varying conceptions of poverty (subsistence, basic needs, relative deprivation) and recommends specific steps to ensure the indivisibility and direct applicability of international human rights norms.
New directions for international poverty law
Together, these chapters advance promising legal arguments for the fight against poverty, yet they also provide certain cautionary perspectives for and reveal difficulties awaiting IPL as an emerging legal discipline. In these remaining comments, I build on the authors' work in order to highlight strengths and weaknesses of IPL as currently framed.
First, IPL must look beyond monetary indicators (financial income and assets) to embrace more inclusive strategies for poverty reduction. Historically, anti-poverty advocates have viewed state-based income transfers as the primary instrument of poverty reduction. Of course, transfers are an important and, in certain countries, a highly successful tool for combating poverty. Their implementation reflects a significant political achievement which should not be abandoned; indeed, progressives everywhere should fight to expand direct redistribution of monetary wealth and income.
Several of the authors show, however, how class (and the reader should add gender and ethnicity) deeply affects one's options and opportunities in ways that go well beyond monetary concerns. Saini discusses poverty not just as a lack of resources, but of opportunity, specifically in the context of an opportunity for primary education. Invoking Sen's capabilities approach, St Clair sees poverty reduction as a process of expanding people's ability to make meaningful choices about their life paths. Aoued argues that anti-poverty advocates must move beyond a fixation on basic needs (understood in terms of economic indicators) to an approach in which the fulfilment of subsistence needs is a precursor to the enjoyment of broader rights and self-realizing experiences. Thus, anti-poverty strategies that are based on the insight that poverty means more than lack of income and which incorporate the multiple ways in which poverty impacts on and restricts people's lives might result in structural changes that would allow impoverished people to become and experience themselves as full, productive and self-determining members of society.
(Continues...)
Excerpted from International Poverty Law by Lucy Williams. Copyright © 2006 CROP. Excerpted by permission of Zed Books Ltd.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents1. Introduction: Toward an Emerging International Poverty Law - Lucy Williams
2. How Can Human Rights Contribute to Poverty Reduction? A Philosophical Assessment of the Human Development Report 2000- Asuncion Lera St. Clair
3. Poverty as a Failure of Entitlement: Do Rights-Based Approaches make Sense? - Bas de Gaay Fortman
4. Biodiversity vs. Biotechnology: An Economic and Environmental Struggle for Life - Margarita Gabriela Prieto-Acosta
5. The Right To Food : The Significance of the United Nations Special Rapporteur - Ahmed Aoued
6. South African Poverty Law: The Role and Influence of International Human Rights Instruments - Marius Olivier and Linda Jansen Van Rensburg
7. Child Labour in India and the International Human Rights Discourse - Debi S. Saini
8. Privatizing Human Rights? The Role of Corporate Codes of Conduct - Aurora Voiculescu
9. Developing Universal Anti-Poverty Regimes: The Role of the United Nations in the Establishment of International Poverty Law - Gabriel Amitsis