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Why should it matter that others have more? Poverty, inequality, and the potential of international human rights law

  • MARGOT E. SALOMON
Abstract

A concern with ensuring minimum standards of dignity for all and a doctrine based on the need to secure for everyone basic levels of rights have traditionally shaped the way in which international human rights law addresses poverty. Whether this minimalist, non-relational approach befits international law objectives in the area of world poverty begs consideration. This article offers three justifications as to why global material inequality – and not just poverty – should matter to international human rights law. The article then situates requirements regarding the improvement of living conditions, a system of equitable distribution in the case of hunger, and in particular obligations of international cooperation, within the post-1945 international effort at people-centred development. The contextual consideration of relevant tenets serves to demonstrate that positive international human rights law can be applied beyond efforts at poverty alleviation to accommodate a doctrine of fair global distribution.

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1 World Health Organization, Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property: Annex (61st World Health Assembly, 2008), para. 2.

2 World Bank. Available at: {www.worldbank.org} (Poverty Net). The World Bank uses reference lines set at US $1.25 and US $2 a day 2005 purchasing power parity terms.

3 Among other sources, Wade, Robert Hunter, ‘Globalization, Growth, Poverty, Inequality, Resentment, and Imperialism’, in Ravenhill, John (ed.), Global Political Economy, 2nd ed. (Oxford: Oxford University Press, 2008), pp. 373, at 382 and p. 387 . Wade's conclusion is for the period 1981–2001.

4 Reddy, Sanjay G. and Minoiu, Camelia, ‘Has World Poverty Really Fallen?’, Review of Income and Wealth, 3 (2007), p. 484 .

5 While extreme poverty represents the more urgent concern, for the purposes of this article, no sharp lines need be drawn between the two types of poverty. Where it can be said to have taken place, reduction has been dramatically inadequate for both categories of persons. Moreover, the international poverty lines are not rigidly relied on for the purposes of applying international law in this area, with low-income and multidimensional approaches prevalent.

6 This article uses the terms ‘economic, social and cultural rights’ and ‘socioeconomic rights’ interchangeably.

7 Milanovic has analysed global inequalities in terms of three concepts: inequality between States, inequality between countries weighted by population, and income distribution between individuals (or households) in the world, termed ‘true world inequality’. Milanovic, Branko, ‘Global Income Inequality’, in Ehrenpreis, Dag (ed.), The Challenge of Inequality (Brasilia: UNDP International Poverty Centre, 2007), p. 6 . Summarising the findings subsequently provided above, inequality between States is widening rapidly; inequality between countries weighted by population has shrunk since 1980, however this is due to the fast growth in China and India; and as Wade concludes, inequality among households is probably increasing. Wolf concludes that there has been a decline in world-wide inequality among households, but the chief explanation is the fast growth of China and to a lesser extent, of India. Wade, Robert and Wolf, Martin [debate], ‘Are Global Poverty and Inequality Getting Worse?’, in Held, David and McGrew, Anthony (eds), The Global Transformations Reader, 2nd ed. (Cambridge:Polity Press, 2003), p. 440, at pp. 440441 . Milanovic remarks that there is general agreement about the size of inequality between individuals in the world, but general disagreement about its recent direction, Milanovic, ‘Global Income Inequality’.

8 UN Development Programme (UNDP), Human Development Report 2005: International Cooperation at a Crossroads: Aid, Trade and Security in an Unequal World (New York: UNDP, 2005), p. 38 . Milanovic's findings regarding global income distribution among the world's people indicate a similar Gini value of between 63 and 68. Milanovic, ‘Global Income Inequality’, p. 6.

9 Ibid.; Global wealth is even more unevenly distributed than income. The richest 10 per cent of adults in the world own 85 per cent of global household wealth: the bottom half collectively owns barely 1 per cent. Davies, James, Sandstrőm, Susanna, Shorrocks, Anthony and Wolff, Edward, ‘The Global Distribution of Household Wealth’, in Ehrenpreis, Dag (ed.), The Challenge of Inequality (Brasilia: UNDP International Poverty Centre, 2007), p. 3 . The results are from a recent UNU-WIDER study.

10 Jolly, Richard,‘Global Inequalities’, in Clark, David Alexander (ed.), The Elgar Companion to Development Studies (Cheltenham: Edward Elgar, 2006), p. 196, at p. 197 (inequality between States).

11 Wade and Wolf [debate], ‘Are Global Poverty and Inequality Getting Worse?’, p. 440.

12 Ibid.; Wade, ‘Globalization’, p. 387.

13 See CESCR, Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights (25th session, 2001), UN Doc E/C12/2001/10.

14 While the concept of human dignity has not, it seems, given rise to one detailed universal legal interpretation, it nonetheless provided an articulation of the basis upon which human rights could be said to exist and continues to play a role in the judicial interpretation of human rights, including as regards socioeconomic rights. McCrudden, Christopher, ‘Human Dignity and Judicial Interpretation of Human Rights’, European Journal of International Law, 19:4 (2008), p. 655 .

15 International Covenant on Economic, Social and Cultural Rights, General Assembly res. 2200A (XXI), December 16, 1966, entered into force on 3 January 1976.

16 ICESCR, article 11(1). I am concerned in my article generally with what philosophers would distinguish as ‘equality and sufficiency’ approaches, but what is also referred to by others as the difference between ‘equity and adequacy’ frameworks. Quantitative research might refer to ‘relative and absolute deprivation’. While they all share the characteristic of distinguishing between whether having enough should provide the appropriate metric or whether equality should, herein I will use the terms ‘equality and minimum or threshold’ to avoid importing into this work the particular definitions that accompany a given discipline and school of thought.

17 ICESCR, article 11(1). See also, Convention on the Rights of the Child, General Assembly res. 44/25 of 20 November 1989, entered into force on 2 September 1990, preambular paragraph 13: ‘Recognizing the importance of international cooperation for improving the living conditions of children in every country, in particular in developing countries.’

18 ICESCR, article 12(1).

19 The independent body mandated to interpret the treaty.

20 CESCR, General Comment No. 3, The Nature of States Parties' Obligations (art 2(1)), (5th session, 1990), UN Doc E/1991/23 (1990), annex III, para. 10. Emphasis added.

21 See for example, CESCR, General Comment No. 15, The Right to Water (arts 11 and 12), (29th session, 2002), UN Doc E/C12/2002/11, para. 37.

22 CESCR, General Comment No. 3, para. 10. As Fredman points out, the shift beyond formal equality to a recognition of substantive equality in human rights law – that equal consideration for all might require unequal treatment in favour of the disadvantaged – recognises the place of positive duties within the discipline. When applied to the grounds of socioeconomic status, prohibiting differentiation would give rise to redistributive requirements on the part of the State. As she further indicates however (in the domestic context), ‘in the case of substantive equality, neither the aims nor the means have been conclusively articulated’ and when it comes to the contested human rights notion of a right to welfare, it is suggested that the consensus is merely to accept that ‘the State has a basic responsibility to provide the existential minimum’. For our purposes, recognition of a requirement of just distribution to fulfil human rights, such as access to and the allocation of resources to redress socioeconomic inequalities, might still be aimed merely at meeting the most basic standards of well-being. The existence of (domestic) redistributive human rights duties and the objective of fulfilling only a minimum levels of rights can (and do) coexist. Indeed, the shaping of post-Second World War socioeconomic rights are premised on a negotiated settlement that rested on both the notion of minimum standards and (Latin American) socialism. On the former points, Fredman, Sandra, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008), pp. 176180 and 226 .

23 CESCR, General Comment No. 15, para. 37. The right to water has been read into the Covenant as indispensable to the right to an adequate standard of living and the right to health.

24 CESCR, Statement on Poverty, paras 17–8.

25 I thank Philip Alston for raising this important point. At the level of human rights theory and judicial decision-making, the distinction (if any) between a dignity standard and a decency standard warrants fuller scholarly consideration.

26 See for example CESCR's guidance on the nature of obligations pertaining to the right to adequate food: ‘The principal obligation is to take steps to achieve progressively the full realization of the right to adequate food. This imposes an obligation to move as expeditiously as possible towards that goal. Every State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger.’ Latter emphasis added. CESCR, General Comment No. 12, The Right to Adequate Food (art 11), (20th session, 1999), UN Doc. E/C.12/1999/5 (1999), para 14. Emphasis added.

27 For a consideration of the content and scope of these obligations see Salomon, Margot E., Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford: Oxford University Press, 2007) ; Salomon, Margot E., ‘Legal Cosmopolitanism and the Normative Contribution of the Right to Development’, in Marks, Stephen P (ed.), Implementing the Right to Development: The Role of International Law (Geneva: Harvard School of Public Health/Friedrich Ebert Stiftung, 2008), p. 17 .

28 ICESCR article 2(1): ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

29 CESCR, Statement on Poverty, paras 16–7 (although the ‘others’, that is non-state actors, are not formally the bearers of obligations under international human rights law).

30 ICESCR, article 11(2).

31 ICESCR, article 11(2)(b).

32 CESCR, Statement on the World Food Crisis (40th session, 2008), UN Doc E/C.12/2008/1, para. 9.

33 CRC, articles 4, 23(4), 24(4), 28(3).

34 CESCR, General Comment No. 15, para. 30.

35 Ibid., para. 31. See further, paras 32–6.

36 Ibid., para. 34.

37 Ibid., para. 35.

38 Ibid., para. 36.

39 CESCR, Statement on Poverty, para. 21. See also, CESCR, Statement on the World Food Crisis, paras 12–3.

40 Universal Declaration of Human Rights, General Assembly res. 217A (III), 10 December 1948, UN GAOR, 3rd Session Resolutions, pt. 1 at 71, UN Doc A/810 (1948).

41 Declaration on the Right to Development, General Assembly res A/RES/41/128, 4 December 1986, annex 41 UN GAOR Supplement, (No. 53) 186, UN Doc A/RES/41/53 (1986).

42 See Temkin, Larry S., ‘Egalitarianism Defended’, Ethics, 113 (2003), p. 764, at p. 767 . Of course, this statement should not be understood to relieve developing countries of their respective human rights obligations.

43 See Gosepath, Stefan, ‘Equality’, Stanford Encyclopedia of Philosophy (2007), p. 24 . Available at: {http://plato.stanford.edu/entries/equality/}.

44 Beitz, Charles R., The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 161 . Notably, as Beitz points out, a threshold measure is compatible with a range of distributive justice conceptions (here he is referring to the domestic level) provided that they result in the threshold being met. (p. 162).

45 CESCR, Statement on Poverty, para. 4.

46 Pogge, Thomas, ‘World Poverty and Human Rights’, Ethics and International Affairs, 19:1 (2005), p. 1 . Pogge draws his figures from the World Bank's World Development Report 2003. See further, Milanovic, ‘Global Income Inequality’, p. 6, at pp. 6–7.

47 Ibid., p. 1; see Singer, Peter, ‘Famine, Affluence and Morality’, Philosophy and Public Affairs, 3:1 (1972), p. 229 .

48 CRC, article 4; ICESCR, article 2(1).

49 Measured in 2000 purchasing power parity terms. UNDP Human Development Report 2005, p. 38 .

50 On the contribution of international law and policy to global dispossession and vice versa, see Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004) ; Cutler, A Claire, ‘Toward a Radical Political Economy Critique of Transnational Economic Law’, in Marks, Susan (ed.), International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), p. 199 ; Salomon, Margot E., ‘Poverty, Privilege and International Law: The Millennium Development Goals and the Guise of Humanitarianism’, Special Issue on Poverty as a Challenge to International Law, German Yearbook of International Law, 51 (2008), p. 39 .

51 On international trade as a system of legalised theft, see Wenar, Leif, ‘Property Rights and the Resource Curse’, Philosophy and Public Affairs, 36:1 (2008), p. 2 .

52 Craven, Matthew, ‘The Violence of Dispossession: Extraterritoriality and Economic, Social and Cultural Rights’, in Baderin, Mashood A and McCorquodale, Robert (eds), Economic, Social and Cultural Rights in Action (Oxford: Oxford University Press, 2007), p. 71, at p. 86 ; Salomon, Margot E., ‘International Human Rights Obligations in Context: Structural Obstacles and the Demands of Global Justice’, in Anders Andreassen, Bård and Marks, Stephen P (eds), Development as a Human Right: Legal, Political and Economic Dimensions (Cambridge: Harvard University Press, 2006), p. 96, at pp. 113114 : ‘Hunger concentrated in developing countries is not a result of there being not enough food to eat but rather of certain people just not having enough to eat – this raises serious questions of distribution, access, and accountability.’ This is also a reason given to justify the idea that poverty is a ‘violation’ of human rights, that is, because it is possible for the world to be free of poverty yet it is not done. See, among others, Chauvier, Stéphane, ‘The Right to Basic Resources’, in Pogge, Thomas (ed.), Freedom from Poverty as a Human Right, p. 303, at p. 306 .

53 See Salomon, Margot E., ‘International Human Rights Obligations in Context: Structural Obstacles and the Demands of Global Justice’, in Andreassen, Bård Anders and Marks, Stephen P. (eds), Development as a Human Right: Legal, Political and Economic Dimensions, 2nd ed. (Antwerp: Intersentia, 2010), p. 121 ; Salomon, Global Responsibility for Human Rights; Marks, Susan,‘Human Rights and the Bottom Billion’, European Human Rights Law Review, 1 (2009), p. 37 .

54 See Marks, Susan,‘Exploitation as an International Legal Concept’, in Marks, Susan (ed.), International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), p. 281 .

55 Marks, ‘Human Rights and the Bottom Billion’, p. 37, at p. 48.

56 Ibid.

57 Drawing on Raz, and Clayton and Williams, White remarks that its ‘instrumental value is derived from the way in which it serves to promote some other value’. White, Stuart, Equality (Cambridge: Polity Press, 2007), p. 14 .

58 Franck, Thomas M., Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), p. 20 .

59 Wade, ‘Globalization’, p. 401.

60 ‘The evidence against trickle-down economics is now overwhelming, at least in the sense that an increase in average incomes is not sufficient to raise the incomes of the poor for prolonged periods’. Stiglitz, Joseph E., ‘Is there a Post-Washington Consensus Consensus?’, in Serra, Narcis and Stiglitz, Joseph E. (eds), The Washington Consensus Reconsidered: Towards a New Global Governance (Oxford: Oxford University Press, 2008), p. 41, at p. 47 ; ‘It used to be claimed at one time that the benefits of a rapid expansion of GDP would automatically “trickle down” to the poor, so that a high growth rate of GDP could very legitimately be looked upon as the summum bonum of the development effort. This claim however has been so obviously discredited that few would make it now.’ Patnaik, Prabhat, ‘A Left Approach to Development’, Economic and Political Weekly, XLV:30 (July 2010) p. 33 .

61 Donnelly refers to this as the ‘equity trade-off’. Donnelly, Jack, ‘Human Rights, Democracy and Development’, Human Rights Quarterly, 21:3 (1999), p. 608, at pp. 626627 . Uvin points out though that since the evidence indicates that poverty and inequality always increase in the absence of economic growth and with that the enjoyment of human rights decline for many, if not most, poor people, ‘all things being equal, if trade-offs or setting priorities among human rights are required, those choices that do not (or least) retard economic growth should be privileged’. Uvin, Peter, Human Rights and Development (Bloomfield: Kumarian Press, 2004), p. 191 .

62 See, for example, CESCR, General Comment No. 12, para. 14.

63 CESCR, General Comment No. 3, para. 2.

64 See further, Salomon, , Global Responsibility for Human Rights, p. 124 .

65 UN World Conference on Human Rights, Vienna Declaration and Programme of Action (1993), UN Doc A/CONF 157/23 Pt I, art 1.

66 See Stiglitz, ‘Is there a Post-Washington Consensus Consensus?’, p. 41, at pp. 46–7. Patnaik outlines a ‘left alternative development strategy’ focussed on a stream of measures, for example, land reforms, the promotion and protection of peasant agriculture and petty production, activation of the public sector including to counter corporate aggrandisement, strategies for the rapid elimination of unemployment, a massive spate of welfare measures, and where governments invite private investment they do so retaining a ‘level of concessions which they will not exceed in entertaining private project proposals’. He acknowledges that such a strategy ‘may not achieve growth rates as high as the bourgeois strategy does over certain periods’, but it has the ‘advantage of directly addressing the aim of development which is to improve the living conditions of the people’. He goes on to remark: ‘Instead of GDP growth rate becoming the main focus, under the chimerical assumption that it will bring about development, this strategy directly addresses the problem of development; the growth that occurs is a fallout of it. And in the worst-case scenario, even if no growth occurs, addressing the question of development directly is still preferable on grounds that John Stuart Mill had made famous, when he had declared his unconcern over the “stationarity” of a “stationary state” as long as the workers were better off in it.’ Patnaik, ‘A Left Approach to Development’, p. 33, at pp. 34–5. Notably, Wilkinson and Pickett in their acclaimed study on the importance of equality (in developed countries) for the realisation of a whole host of benefits, highlight more generally that: ‘it is worth remembering that the argument for greater equality is not necessarily an argument for big government. Given that there are many different ways of diminishing inequality, what matters is creating the necessary political will to pursue any of them.’ Wilkinson, Richard and Pickett, Kate, The Spirit Level: Why Equality is Better for Everyone (London: Penguin Books, 2010), p. 247 .

67 Arneson, Richard, ‘Egalitarianism’, Stanford Encyclopedia of Philosophy (2002), p. 10 . Available at: {http://plato.stanford.edu/entries/egalitarianism/}.

68 Ibid.; Sagoff eloquently reminds us that it is legitimate also to prioritise other values over efficiency; he writes: ‘Economists as a rule do recognize one other value, namely justice or equality, and they speak, therefore, of a “trade-off” between efficiency and equality. They do not speak, as they should, however, about the trade-off between efficiency and our aesthetic and moral values. What about the trade-off between efficiency and self-respect, efficiency and the magnificence of our natural heritage, efficiency and quality of life?’ Sagoff, Mark, ‘Economic Theory and Environmental Law’, Michigan Law Review, 79 (19801981), p. 1393, at p. 1417 .

69 Koski, William S. and Reich, Rob, ‘When “Adequate” Isn't: The Retreat from Equity in Educational Law and Policy and Why it Matters’, Emory Law Journal, 56:3 (2006), p. 545, at p. 595et seq. The authors use the term ‘positional good’ as derived from the work of Hirsch, Fred, Social Limits to Growth (1976) .

70 UNDP Human Development Report 2005, p. 38. The Report further remarks that it is also hardly good for shared prosperity and growth and as such is ‘damaging to the public interest’ including political stability.

71 Fleurbaey, Marc, ‘Poverty as a Form of Oppression’, in Pogge, Thomas (ed.), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: UNESCO/Oxford University Press, 2007), p. 133, at p. 145 .

72 Ferreira drawing on the economist John Roemer in Ferreira, Francisco H. G., ‘Inequality as Cholesterol’, in Ehrenpreis, Dag (ed.), The Challenge of Inequality (Brasilia: UNDP International Poverty Centre, 2007), p. 20 . For a consideration of the views among political philosophers on equality of opportunity, see Kymlicka, Will, Contemporary Political Philosophy, 2nd ed. (Oxford: Oxford University Press, 2002), pp. 5760 .

73 And inequalities in opportunity are intrinsically objectionable.

74 Gosepath, , Equality, p. 21 .

75 See Lines, Thomas, Making Poverty: A History (London: Zed Books, 2008), p. 16 ; UNDP Human Development Report 2005, p. 38 .

76 As Beitz highlights in his work on the subject, one can care about global inequality without the ‘prior adoption of a particular theoretical view about the moral character of the global community or of an egalitarian social ideal …’ He distinguishes ‘directly egalitarian’ (that is, intrinsic) reasons for objecting to inequality that are premised on ‘an ideal of society as an association of equals’, from ‘derivative’ (non-egalitarian and instrumental) reasons as to why global economic and political inequalities matter, such as, the impacts of global inequalities on poverty, agency, and fairness in political decision-making. Beitz, Charles R., ‘Does Global Inequality Matter?’, in Pogge, Thomas W. (ed.), Global Justice (Oxford: Blackwell Publishers, 2001), p. 106et seq .

77 Amartya Sen, The Idea of Justice, London School of Economics (27 July 2009). Video available at: {www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/}.

78 Steiner, Hillel, ‘How Equality Matters’, Social Philosophy and Policy Foundation, 19:1 (2002), p. 342, at p. 346 . The ‘levelling-down’ objection merely leads to the conclusion that equality cannot be the only or the supreme value. See generally, White, , Equality, p. 21 .

79 Temkin as cited in White, , Equality, p. 21 .

80 Casal convincingly argues that: ‘Under any reasonable reading, egalitarians are committed to distributing rather than destroying benefits and to doing so in a manner that satisfies each individual's equal claim to be benefited … ’ Casal, Paula, ‘Why Sufficiency is not Enough’, Ethics, 117:2 (2007), p. 296, at p. 307 . Similarly, ‘[i]t should be noted that the value human rights law puts on equality is not entirely neutral. Everyone being treated equally badly is not a human rights concept. It is not sufficient to ensure that no-one is being discriminated against if the consequence is that all groups are treated with an equal lack of respect or lack of opportunity to participate in social and civic life … [Citing Lord Walker] “In the field of human rights, discrimination is regarded as particularly objectionable because it disregards fundamental notions of human dignity and equality before the law.” … As such, under the human rights vision of equality any difference in treatment should generally involve a levelling up and not a levelling down.’ Francesca Klug and Helen Wildbore, ‘Equality, Dignity and Discrimination under Human Rights Law: Selected Cases’ (2005), p. 2, available at: {www.lse.ac.uk/human-rights}. Furthermore, ‘equalizing down’ can produce just results (results that redress a human rights violation). In the case of Waldman v. Canada (694/96) one option available to Canada when found in violation of article 26 on non-discrimination under the International Covenant on Civil and Political Rights was to cease exclusively funding Roman Catholic private schools as it had been doing since 1867 when there were reasonable and objective criteria for doing so, in order both to ensure that other religious denominations without private funding weren't discriminated against and so that the resources could be put into the public school system, to which people of all denominations had access. The term ‘equalizing down’ is from Lester, Anthony and Joseph, Sarah, ‘Obligations of Non-Discrimination’, in Harris, David and Joseph, Sarah (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (Gloucestershire: Clarendon Press, 1995), p. 565, at p. 594 .

81 ‘Even if equality does not fulfil all our needs for justice, we don't have to abandon our intuition that there is something wrong about inequalities due to circumstances beyond people's control. … [A] situation that, though better overall, [can be] worse in the particular respect that it is unfair’. Swift, Adam, Political Philosophy (Cambridge: Polity Press, 2001), pp. 123124 . See also, Temkin, ‘Egalitarianism Defended’, p. 764.

82 Raz, Joseph, ‘On the Value of Distributional Equality’, Legal Research Papers Series, 41 (2008) , University of Oxford (October 2008), p. 14.

83 Milanovic, ‘Global Income Inequality’, p. 6, at p. 7. The lived experiences of the poor are chronicled in a three-volume study carried out by the World Bank in which their awareness of international inequalities and disadvantage is recorded. See Narayan, Deepa, Chambers, Robert, Kaul Shah, Meera and Petesch, Patti, Voices of the Poor: Crying Out for Change (New York: World Bank/Oxford University Press, 2000) .

84 Chauvier, ‘The Right to Basic Resources’, p. 303, at pp. 308–9.

85 Under international human rights law discrimination is any distinction based on the prohibited grounds – grounds that include economic and social situations – which has the purpose or effect of nullifying and impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms in the political, economic, social, cultural or any other field. Indirect discrimination refers to laws, policies or practices which appear neutral, but have a disproportionate impact on the exercise of rights by particular groups. See CESCR, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights (art 2(2)), (42nd session, 2009), UN Doc E/C.12/GC/20.

86 Temkin, ‘Egalitarianism Defended’, p. 764, at pp. 768–9.

87 CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Physical and Mental Health (art 12), (22nd session, 200), UN Doc E/C12/2000/4, para. 38.

88 See generally, Salomon, Global Responsibility for Human Rights.

89 DRD, article 2(3).

90 DRD, article 3(3). This article reiterates the claims of developing countries from the 1970s for a ‘new international economic order’.

91 DRD, article 4(1).

92 DRD, article 4(2).

93 DRD, article 1(1).

94 Salomon, , Global Responsibility for Human Rights, p. 7 .

95 Ibid., p. 6.

96 ‘The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the UN, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries.’ CESCR, General Comment No. 3, para. 14. The contemporary ‘international law of cooperation’ is distinguished from the outdated ‘international law of coexistence’ of the 17th and 18th centuries. Friedmann, Wolfgang, The Changing Structure of International Law (New York: Columbia University Press, 1964) .

97 Craven, ‘The Violence of Dispossession’, p. 71, at p. 86.

98 DRD, article 3(1). Emphasis added.

99 On the general point of inequalities being mediated by organisations see Darrel Moellendorf, Human Dignity, Respect, and Global Inequality, 3rd International Global Ethics Association Conference, Bristol, (July 2010), on file with author.

100 DRD, preamble. Article 8(1) of the Declaration calls for equality of opportunity domestically: ‘States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices.’

101 Zanetti drawing on the work of Pogge, Thomas in Zanetti, Véronique, ‘Egalitarian Global Distributive Justice or Minimal Standard? Pogge's Position’, in Follesdal, Andreas and Pogge, Thomas (eds), Real World Justice: Grounds, Principles, Human Rights, and Social Institutions (Dordrecht: Springer, 2005), p. 199, at p. 208 .

102 The work of Robert Howse emphasises the positive impact that would come to bear on poverty through changing the interpretative practices and culture surrounding the existing rules (especially integrating existing positive international human rights law into the interpretation of economic rules), over changes to the formal rules themselves. Robert Howse, Accountability Issues in International Economic Governance, Conference on the Accountability for Human Rights Violations by International Organizations, International Law Association Belgian Branch, Brussels (March 2007), on file with author; Robert Howse, Mainstreaming the Right to Development into International Trade Law and Policy at the World Trade Organization, UN Doc E/CN 4/Sub 2/2004/17; Howse, Robert and Teitel, Ruti, ‘Global Justice, Poverty, and the International Economic Order’, in Besson, Samantha and Tasioulas, John (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010), p. 437, at p. 447 .

103 Zanetti, ‘Egalitarian Global Distributive Justice or Minimal Standard? Pogge's Position’, p. 199, at p. 208; and see Franck, Fairness in International Law and Institutions.

104 Franck, , Fairness in International Law and Institutions, p. 8 .

105 For coverage of this issue see Salomon, , Global Responsibility for Human Rights, pp. 132143 (Obligations of Conduct at the International Level).

106 See Wenar, Leif, ‘Human Rights and Equality in the Work of David Miller’, Critical Review of International Social and Political Philosophy, 11:4 (2008), p. 401, at pp. 404405 .

107 Arendt, Hannah, The Origins of Totalitarianism (New York: Schocken Books, 1948), p. 381 .

108 Ibid., p. 380.

* An earlier version of this article entitled Affluence under International Human Rights Law was presented in May 2009 at the International Law and Global Justice Conference, Department of Politics and International Relations, University of Oxford. Given the multidisciplinary nature of the event and of this research project, I am especially grateful for the insights and suggestions generously offered by conference participants and thank in this regard: Francis Cheneval, Peter Dietsch, Katrin Flikschuh, Terry Nardin, Laura Valentini and Helga Varden. This work also benefited from the expert reflections offered by Philip Alston and Robert Howse when presented in March 2010 at the Institute for International Law and Justice and the Center for Human Rights and Global Justice, New York University Law School. For his invaluable comments on a draft of this article my sincere appreciation goes to Leif Wenar. As ever, responsibility for the views presented herein rests solely with the author.

This work is dedicated to the life and memory of Professor Peter Townsend (1928–2009), an irreplaceable colleague, friend and co-conspirator, and an indefatigable advocate of the rights of the poor. His outstanding legacy offers some comfort, but he is missed very much.

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