1.1 Introduction
Sustainable Development Goal (SDG) 1, No Poverty, aims to end poverty in our world.Footnote 1 Given that the global levels of poverty and inequality are quite simply staggering, this is an important goal in the overall architecture of the SDGs. According to a recent World Bank report, in 2015 the levels of “extreme poverty,” defined as persons living below US $1.90 a day, stood at 736 million.Footnote 2 Statistically, this might be seen as an improvement compared to the nearly 2 billion people living in extreme poverty in 1990.Footnote 3 Yet, these statistics do not reveal all. First, the threshold of US $1.90 excludes many persons living in poverty.Footnote 4 The picture looks bleaker when considering higher thresholds.Footnote 5 Indeed, the World Bank’s more complex measure of poverty, which goes beyond consumption levels, shows that “the number of people who are poor stood at 2.1 billion as of 2015,” a figure that is three times that of persons living on below US $1.90 a day.Footnote 6 Second, whatever the decrease in the rate of extreme poverty, if we accept the slogan “Leave no one behind,” then, by these numbers, the international community is failing at least 736 million times over. Third, the World Bank report indicates that the rate of reduction in levels of extreme poverty has been on the decline in recent years.Footnote 7 Fourth, while extreme poverty has decreased globally, it has increased in sub-Saharan Africa, making extreme poverty “a sub-Saharan African problem.”Footnote 8
This picture of poverty is one that ought to trouble the “international community,” if such a community exists. This international community should be concerned that the number of hungry people is increasing while there is enough food to feed everyone in the world.Footnote 9 From an ethical standpoint, the international community should be concerned that, while a few have plenty, the vast majority are impoverished and live in squalor.Footnote 10 International law is a vehicle through which the concerns of the international community are expressed. Yet, there is no obligation under international law to act to eradicate poverty, nor do the SDGs set out legally binding obligations to eradicate poverty by 2030.
Yet, while SDG 1 does not constitute a rule of international law, it affects, and is affected by, international law in several ways. First, with the apparent shift of international law from a state-centric system anchored on bilateralism to one that is concerned with the human condition and based on community interests,Footnote 11 there seems to be much scope for international law’s engagement with poverty and the pursuit of its eradication. After all, the levels of poverty undermine international law’s purported pursuit of a better world. Second, many areas of international law address topics that relate to poverty eradication, including international human rights law, environmental law, and trade and investment law. Third, the search for international law’s role in addressing poverty predates the SDGs.Footnote 12
This chapter reviews the opportunities for, and the hurdles standing in the way of, international law playing a role in efforts to eradicate poverty through the lens of solidarity and ambition. First, like many of the SDGs, perhaps even more so, the achievement of SDG 1 is dependent on cooperation and solidarity.Footnote 13 Second, given the high levels of poverty described above, the achievement of SDG 1 will require a high degree of ambition. While other areas of international law, such as the law related to environmental protection, labor rights, and the suppression of corruption, are also relevant to poverty eradication, the focus of this chapter is on areas of international law that are most directly relevant to the eradication of poverty: human rights law and aspects of economic law – in particular, international trade law and the law relating to international financial institutions.
1.2 The Content of SDG 1 in the Context of the Other SDGs
1.2.1 The Content of SDG 1
The language of SDG 1 itself reveals a strong ambition. It is to “[e]nd poverty in all its forms everywhere.”Footnote 14 The absolutist ambition of the goal extends to both the type of poverty to be eradicated (in all its forms) and the geographical scope (everywhere). Achieving the geographic element of this goal – “everywhere” – will require solidarity. Well-resourced developed states may be able to address, unilaterally and without external assistance, the poverty of their own populations. However, without the cooperative assistance inherent in the concept of solidarity, poorer states will not be able to pull their populations out of poverty.
This lofty and ambitious goal is to be measured against a set of five targets to be achieved by 2030. These targets do not exhibit the same absolute pretense of the overall objective of SDG 1. Target 1.1 provides an example. It aims to “eradicate extreme poverty for all people everywhere” by 2030. In some respects, there is an absolutism about the ambition: it targets “poverty for all people” and “everywhere.” Moreover, the target is not to reduce poverty but, rather, to eradicate it, which is another indication of an absolutist ambition. Yet, the target lacks the absolutist pretense of SDG 1, since it is only “extreme poverty” and not all poverty that is targeted. Moreover, the benchmark for what constitutes “extreme poverty” is US $1.25 a day, which is even less ambitious than the US $1.90 used by the World Bank to indicate extreme poverty. Target 1.2 also reveals an absolutist ambition in that it is directed at “poverty in all its dimensions,” not only extreme poverty. Yet this apparently absolutist ambition is relative, since it is to be determined “according to national definitions” and only requires that the proportion of those living in poverty be reduced by at least half.
Pointing out the low ambition reflected in the targets of SDG 1 is not a criticism but, rather, a statement of fact and a recognition by the drafters that the ultimate objective of poverty eradication will likely not be met by 2030 and that, by any standard, there will remain people living in poverty in 2030. Other targets of SDG 1 seek to address the relatively low ambitions in targets 1.1 and 1.2 by addressing the living conditions of those who, in 2030, will remain in poverty – those left behind. Target 1.3, for example, requires that there should be “social protection systems and measures for all” and that, by 2030, states should have achieved “substantial coverage of the poor and the vulnerable.” This target, which is intended to cover those left behind, itself lacks an absolutist ambition, leaving the determination of the appropriate levels of social protection and coverage up to national standards. Targets 1.4 and 1.5 are similarly geared toward enhancing the lives of those who may have been left behind due to the low levels of ambition of poverty reduction in targets 1.1 and 1.2.
Developed states may well be able to meet the targets under SDG 1 for their own populations. They may even be able to meet the overall, absolutist, objective of SDG 1. This situation, however, creates the risk that the poor in developing states, particularly in the least developing states, are going to be left behind. To ensure that developing states are not left behind requires shared responsibility in uplifting the poor. Targets 1.a and 1.b are directed at this need for solidarity. Target 1.a recognizes the need to “[e]nsure significant mobilization of resources,” and the need for “enhanced development cooperation” in order to ensure that the poor in developing countries are not left behind. Similarly, the recognition of the need for action and “sound policy frameworks” not only at the national level but also at “regional and international levels” is indicative of a pursuit for solidarity. This need for collective action, to some extent, is also reflected in SDG 17, Partnerships for the Goals, on the means of implementation. SDG 17 is peppered with references to collective action to finance the achievement of the SDGs, including SDG 1. Nonetheless, SDG 17, and its individual targets, is still crafted in a way that falls short of solidarity: The poor in developing countries are the responsibility of developing states, and developed states will assist to the extent that they choose to. Section 1.3 of this chapter illustrates that this philosophy is largely consistent with the general framework of international law.
1.2.2 SDG 1 in the Context of Other SDGs
While SDG 1 specifically addresses poverty eradication, this theme also runs throughout the SDGs. It may even be said that the SDGs are about poverty eradication. The SDGs are, after all, a continuation of the 2000 Millennium Development Goals (MDGs),Footnote 15 which were more explicitly centered on poverty alleviation and securing a life of dignity for the most disadvantaged in our society.Footnote 16 Then, Secretary-General Ban Ki-Moon’s opening words in the foreword to the 2015 Millennium Development Goal Report are reflective of the centrality of poverty eradication to the MDGs. He characterized the MDGs as “the most successful anti-poverty movement in history,” reflecting world leaders’ commitment to “spare no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty.”Footnote 17
The MDGs were developed as part of the evolution of sustainable development, and it is no surprise that the eradication of poverty, which is at the center of sustainable development,Footnote 18 was interwoven into the fabric of the MDGs.Footnote 19 This theme is carried forward in the 2030 Agenda for Sustainable Development, which was presented as “a plan of action for people, planet and prosperity.”Footnote 20 The goals underlying Agenda 2030 are said to be “integrated and indivisible” and “balance the three dimensions of sustainable development: the economic, social and environmental.”Footnote 21 The fact that sustainable development underpins Agenda 2030, and therefore the SDGs, is testament to the idea that poverty eradication constitutes the leitmotif for the SDGs.Footnote 22 According to Agenda 2030, the goals are “people-centred” and “transformative.”Footnote 23
Of course, the SDGs address more than poverty eradication. More so than the MDGs, the SDGs are rooted explicitly in the law and policy of sustainable development, which is concerned with more than poverty eradication. Yet, poverty eradication is a “core philosophy” of sustainable development.Footnote 24 Describing the importance of poverty eradication under the SDGs, Liu Qian-Qian, Yu Man, and Wang Xiao-Lin express the view that “[e]nding extreme poverty and achieving sustainable development by 2030 is the summary of the SDGs, reflecting the significance of poverty reduction in the issue of development.”Footnote 25
That the eradication of poverty is the leitmotif that permeates the SDGs can be seen in individual goals. SDG 2, Zero Hunger, for example, concerns ending hunger, ensuring food security, and promoting improved nutrition. There is an inextricable connection between hunger and poverty, given that it is the poor that suffer from hunger, lack of food security, and malnutrition.Footnote 26 Therefore, addressing poverty will contribute to addressing hunger, food security, and malnutrition. Similarly, the eradication of poverty will contribute to healthy lives and the promotion of the well-being of people, which is the subject of SDG 3, Good Health and Well-Being. Moreover, education, addressed in SDG 4, Quality Education, is an important factor for addressing poverty. The cause-and-effect relationship between education and poverty is generally well recognized.Footnote 27 There is an almost obvious connection between SDG 1 and other SDGs – for example, SDG 6, Clean Water and Sanitation; SDG 7, Affordable and Clean Energy; SDG 8, Decent Work and Economic Growth; SDG 9, Industry, Innovation and Infrastructure; and SDG 10, Reduced Inequalities.
Even those SDGs whose connection with poverty eradication may not be so obvious connect to the aim of SDG 1. For example, SDG 14, Life below Water, has as its primary objective conservation. Yet, the pursuit of “sustainable use” also concerns “access for small-scale artisanal fishers to marine resources and markets,” which impacts poverty.Footnote 28 Given the centrality of poverty eradication for sustainable development, the permeation of the goal of eradicating poverty through the SDGs is understandable.
1.3 Positioning SDG 1 in International Law
1.3.1 Is International Law Geared toward Achieving SDG 1?
Whether the nature of international law is geared toward achieving SDG 1 depends in large part on whether it can exhibit a sufficient degree of solidarity to ensure that those in the poorest states are not left behind in the drive to eradicate poverty. While international law traditionally was seen as a system driven by the national interests of states, and shaped by their bargaining power,Footnote 29 there is a growing consensus that this traditional international law is giving way to a more value-based, community-oriented system of law, and the debate, if there is one, concerns the rate of the shift rather than the fact of the change. Bruno Simma has observed that international law is “overcoming the legal and moral deficiencies of” the bilateralist international legal system and “maturing into a much more socially conscious legal order.”Footnote 30 John Dugard has described this emerging international law as being premised on “a brave new world” in which “state sovereignty is no longer a factor … in which the community of personkind is governed by the rule of law … in which peace and human rights are secure and in which the energy of personkind is addressed toward resolving poverty and inequality.”Footnote 31 This brave new world, described by Dugard, suggests a system of international law based on solidarity. Solidarity in international law, according to Abdul Koroma, “represents more than a general notion of ‘neighbourliness’ but in fact an emerging structural principle which in many cases creates negative obligations on States not to engage in certain activities, and in an increasing number of contexts establishes concrete duties on States to carry out certain measures for the common good.”Footnote 32
While there is some consensus in scholarly writings about this new, emerging international law, it is not apparent that the enthusiasm of scholars is matched by the practice of states and the actual state of international law.Footnote 33 The discussion of the areas of international law relevant to poverty eradication illustrates this state of affairs.
1.3.2 Areas of International Law Relevant to Poverty Eradication
In this subsection, the areas of international law most relevant for poverty eradication – namely, human rights law and economic law – are addressed. For both these areas of international law, this chapter will assess the extent to which they are geared to contribute to the achievement of SDG 1, from the perspectives of both ambition and solidarity.
1.3.2.1 Human Rights Law
The area of international law that is most relevant to the eradication of poverty is human rights law, given that, at its core, it is about the human condition.Footnote 34 Poverty is also about the human condition. The question that flows from this is which human rights are relevant for the eradication of poverty.Footnote 35 While the argument can be made that many – possibly all – human rights have some relevance to poverty,Footnote 36 socioeconomic rights are most closely associated with the fight against poverty.Footnote 37 Socioeconomic rights are established precisely to ensure the protection of “the poor and otherwise marginalised” in society.Footnote 38 The purpose of socioeconomic rights is to ensure that basic needs are met, and it is the poor whose basic needs are often not met.Footnote 39 Onyeka Osuji and Ugochukwu Obibuaku have noted that socioeconomic rights “can serve as a powerful tool for reducing and eliminating poverty.”Footnote 40
A survey of the catalog of rights in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) reveals that they directly concern the fight against poverty and are of eminent relevance for the attainment of other SDGs. While the ICESCR and other relevant instruments, as such, do not provide a right to be free of poverty or an obligation to alleviate poverty, the fulfillment of socioeconomic rights together will ensure the eradication of poverty.Footnote 41 The universal achievement of the rights to work, just and equitable conditions of work, social security, an adequate standard of living, the highest attainable standard of health, and education would enhance the prospects of achieving SDG 1.Footnote 42 For example, unemployment, which is addressed by the work-related rights, is one of the major causes of poverty; high health standards are often unattainable for the poor; and education is one of the key tools for addressing poverty.
The recognition of socioeconomic rights in international law, then, has the potential to play an important role in poverty eradication. However, that potential is limited by several factors. First, treaties, including those providing socioeconomic rights, apply only to state parties.Footnote 43 Second, treaty provisions on socioeconomic rights are generally couched not as immediately and absolutely enforceable rights but, rather, as obligations that a state is to progressively realize and subject to resource constraints of each individual state.Footnote 44 There is a third, and potentially more crippling constraint to the potential of socioeconomic rights to impact poverty. Socioeconomic rights are couched as rights owed by a state to the population in its territory.Footnote 45 While there has been some movement toward the extraterritorial application of human rights, this has largely been limited to those instances where the state in question exercises some control or jurisdiction over the activities or actors in another state.Footnote 46
Indeed, with respect to socioeconomic rights, the International Court of Justice determined that the ICESCR “guarantees rights which are essentially territorial,” noting that it may also apply to a state in respect of territories “over which that state exercises territorial jurisdiction.”Footnote 47 The problem with this general construction is that it places the burden of dealing with the most serious cases of poverty – those in developing states – on precisely those states that, due to their economic situation and developmental state, are not in a position to allocate the necessary resources to effectively addressing poverty. It undermines the idea of solidarity implied by the transition of international law from bilateralism to a system based on community interests.Footnote 48 To truly enable socioeconomic rights to play a meaningful role in the eradication of poverty, relevant human rights instruments should be interpreted to establish the idea that the international community as a whole is responsible for ensuring that such rights are enjoyed by all.
While socioeconomic rights potentially provide the most direct avenue for addressing poverty, other human rights are also relevant. Poverty, for example, affects the dignity of people, meaning that for those living in poverty the right to dignity cannot be realized. Similarly, a broad interpretation of the right to life would establish a link between the protection of life and the “chronic and yet pervasive threats to life” flowing from poverty.Footnote 49 Moreover, as Christine Chinkin points out, the attainment of socioeconomic rights provides the basis for the enjoyment of all civil and political rights.Footnote 50 She notes that the denial of civil and political rights is a daily occurrence for the poor.Footnote 51 Chinkin’s approach, arguing against the “categorisation of rights” and calling for “mutually reinforcing interpretation of both sets of rights directed toward poverty reduction,” is consistent with the view that considers the right to development to be the unifier between socioeconomic and civil and political rights. Consistent with the broad definition of poverty adopted by the Committee on Economic, Social and Cultural Rights,Footnote 52 it affirms the idea of the indivisibility of human rights.Footnote 53 In this context, the right to development has been characterized as “a composite right of all universal rights.”Footnote 54 In essence, it is a right concerned with improving the human condition and the overall well-being of humans, which is the very purpose of the pursuit of the eradication of poverty.Footnote 55
The ability of human rights law to contribute to poverty eradication thus is limited by a number of factors. First, the ambition of human rights law is especially low in relation to those rights most closely associated with the alleviation of poverty – that is, socioeconomic rights. These rights are subject to several qualifiers that reduce their overall effectiveness. Second, and perhaps more importantly, the solidarity that is central to the brave new communitarian-based international law is not reflected in the architecture of human rights law. States are responsible only for populations in their own territories – the “me for mine and you for yours” philosophy. Without solidarity, which implies the joint responsibility of states to address poverty everywhere, neither the targets nor the overall objective of SDG 1 can be met for developing states. Given the low ambition and lack of solidarity evidenced in socioeconomic rights, SDG 1, together with its targets, reflects a higher level of ambition. Yet the SDGs, being mere policy objectives, do not establish legal obligations and cannot, on their own, enhance the content of international law. The relatively higher level of ambition, together with some commitment to solidarity reflected in SDG 1, could be used to interpret socioeconomic rights, both to enhance their ambition in terms of content and to promote broader extraterritoriality in order to enhance solidarity.
1.3.2.2 International Economic Law
International economic law, another area of international law with potential relevance for the eradication of poverty, includes trade law, investment law, the law relating to financial institutions, and intellectual property law.Footnote 56 In general, international economic law is geared toward wealth creation, which can impact poverty.Footnote 57 There is therefore an obvious relationship, at least potentially, between international economic law and poverty alleviation. This subsection addresses trade law and the law related to international financial institutions.
The pursuit of free trade – the basic objective of international trade law – has often been characterized as an important tool for poverty alleviation and eradication.Footnote 58 The preamble of the 1994 Agreement Establishing the World Trade Organization (WTO Agreement) sets objectives that are closely related to poverty alleviation. It determines that activities under the World Trade Organization (WTO) should be “conducted with a view to raising standards of living” and “ensuring full employment.” The idea is that, through income generation, free trade improves and enhances the livelihood of persons.Footnote 59 Fernando Tesón and Jonathan Klick make a rather strong claim concerning the relationship between poverty alleviation and free trade. First, they state, perhaps optimistically, that “virtually everyone agrees” that alleviating poverty “should be a priority of international law.”Footnote 60 Second, based on the virtues of trade as a tool for economic growth, they claim that “free trade is required” for this purpose.Footnote 61 One commentator has remarked that the “view that free trade is good for the poor is so widely accepted that it is hard to get a word in edge-wise.”Footnote 62
It is not possible here to test empirically the claims that trade liberalization contributes to poverty eradication. The claim that free trade alleviates poverty, however, is contested and has been the subject of severe criticism.Footnote 63 Marjorie Cohn, for example, has noted that the “WTO’s raison d’être is the elevation of property interests above the protection of human rights.”Footnote 64 She disputes the idea that wealth created through globalization has trickled down and asserts that the “gap between rich and poor has widened geometrically because of the global trading system.”Footnote 65 In a report to the Human Rights Commission – the predecessor to the Human Rights Council – Joseph Oloka-Onyango and Deepika Udagama described the WTO rules as “grossly unfair and even prejudiced” and a “veritable nightmare” for “certain sectors of humanity” – in particular, those from developing countries.Footnote 66 Equally scathing is Barbara Stark, who notes that, due to neoliberal economic policies, including free trade rules, the “chasm between the rich and the poor has become unfathomable.”Footnote 67 Indeed, even some who take a somewhat more sympathetic view of free trade note that there are “good reasons to be sceptical of the claim that free trade is always the best way to reduce poverty.”Footnote 68
The activities of international financial institutions also have been identified as being central to economic growth and, following the logic that economic growth leads to poverty reduction, as contributing to the eradication of poverty. These institutions, even more so than trade institutions, are regarded as the most powerful agents of economic development.Footnote 69 Loans provided by development banks, such as the International Bank for Reconstruction and Development and the International Finance Corporation (both part of the World Bank Group), for infrastructure development, and the International Monetary Fund’s (IMF) stabilization lending are designed to promote economic growth. These loans, in turn, can have a positive impact on human rights.Footnote 70 International financial institutions, at least on paper, are geared toward the achievement of SDG 1.Footnote 71 The World Bank has adopted what it has referred to as the twin objectives – namely, ending extreme poverty and boosting prosperity.Footnote 72 Moreover, the World Bank’s 1945 Articles of Agreement, for example, seek to encourage investment, inter alia, to assist “in raising productivity, the standard of living and conditions of labour” in member states.Footnote 73 Similarly, while earlier the IMF characterized itself as a financier and monetary agency and not as a development agency, today it embraces its role in addressing poverty.Footnote 74
While international financial institutions have as a stated objective poverty eradication, the activities of these institutions have often been criticized as harming and not helping the poor.Footnote 75 For example, it has been argued that international financial institutions work to the benefit not of the poor countries that are their clients but, rather, of the rich countries, which are their major shareholders.Footnote 76 The independent expert on the promotion of a democratic and equitable order has noted that some of the policies of international financial institutions “have resulted in the erosion of the enabling human rights environment in some countries,” including by promoting “policies that weaken the public sector and hinder states in the fulfilment of their human rights obligations” – in particular, socioeconomic rights.Footnote 77 Speaking more broadly about international financial institutions, Thomas Stubbs and Alexander Kentikelenis express the view that these institutions often have the effect of “reducing national policy and undermining national development agendas” and “have implications for the enjoyment of human rights” – in particular, socioeconomic rights.Footnote 78 Much of the criticism against the international financial institutions have been directed at the conditionalities imposed on developing countries when accessing loans.Footnote 79 These conditionalities aim at economic austerity, require reduction in social spending, and target those social services that are most essential for the poor. An empirical review of conditionalities imposed by international financial institutions concluded that they have been a dismal failure.Footnote 80
Since the 2000s and in response to scathing criticism, international financial institutions such as the World Bank and the IMF have explicitly adopted poverty reduction as an objective. Yet it has been suggested that this has been a little more than a façade.Footnote 81 For example, the IMF’s Poverty Reduction and Growth Facility, which was a response to the criticism of structural adjustment programs, has been described “as the new name for structural adjustment loans.”Footnote 82 Thus, notwithstanding the declared turn in official posture, international financial institutions continue to be criticized for policies that, instead of contributing to eradicating poverty, are harming the poor.Footnote 83 Indeed, while international financial institutions have embraced, on paper, poverty reduction as a key objective, they continue to reject the idea that international human rights – in particular, those human rights contained in the ICESCR – could apply to them. Philip Alston, then special rapporteur on extreme poverty, after interacting with officials of the IMF, summarized the fund’s position:
[T]he International Covenant on Economic, Social and Cultural Rights is not applicable to IMF; its provisions have not attained customary international law status that would make them applicable independently of the Covenant; IMF promotes economic and social rights indirectly by contributing to conducive economic conditions; and IMF cannot promote human rights directly without contravening the Articles of Agreement. The Deputy General Counsel of IMF informed the Special Rapporteur that this position remained unchanged. He reiterated that it was not bound by human rights norms, “except perhaps in cases of genocide.”Footnote 84
The conscious integration of human rights, especially socioeconomic rights, into international economic law would make it possible for international economic law to contribute to the objectives of SDG 1. The exceptions to free trade – for example, in article XX of the 1947 General Agreement on Tariffs and Trade – could be interpreted liberally to permit trade restrictions in order to give effect to the rights in the ICESCR. This would be consistent with the customary international law rules of interpretation.Footnote 85 Both the object and purpose of the treaty (“raising standards of living” in the preamble of the WTO Agreement) and the principle of systemic integration in article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties (VCLT): could be used to integrate socio-economic rights into the law of the WTO. The same argument applies to international financial institutions. SDG 1, in its own right and as a means for an enhanced interpretation of human rights instruments, as suggested in Section 1.3.2.1, should be considered as a pathway for international economic law to contribute meaningfully to poverty eradication.
1.4 Positioning SDG 1 in the International Institutional Context
1.4.1 Human Rights Institutions
This subsection addresses the role of institutional settings in achieving SDG 1. The increase in the number and growth in influence of international organizations under international law justifies thinking about institutional frameworks in relation to the SDGs.Footnote 86 Nonetheless, the role of institutional rules should not be overstated. Institutional settings and frameworks, no matter how well conceived and applied, cannot lead to eradicating or reducing poverty without an appropriate set of substantive rules and normative framework. One of the most common criticisms of international financial institutions is their lack of accountability mechanisms.Footnote 87 Yet the usefulness of any accountability mechanism remains dependent on the normative framework against which the institutions are to be held accountable. At best, the institutional settings can facilitate the effective implementation and application of the rules designed to eradicate poverty where these rules themselves are effective. In other words, institutions are only as useful as the norms they are charged with giving effect to. It is in this context that the institutions charged with developing the rules discussed in Section 1.3 are considered.
The first area of international law identified as being relevant for the eradication of poverty is human rights law. The Human Rights Council, a subsidiary organ of the UN General Assembly, has overall responsibility for “promoting universal respect for the protection of all human rights and fundamental freedoms.”Footnote 88 Under its constitutive resolution, the council is responsible for addressing “situations of violations of human rights” and making “recommendations thereon,”Footnote 89 and it is charged with playing a coordinating role within the UN system.Footnote 90 It is serviced by the Office of the High Commissioner for Human Rights, which has a broad mandate for the promotion and protection of human rights.Footnote 91 The Human Rights Council performs its functions through a number of subsidiary organs, some of which are engaged in processes that may contribute to the achievement of SDG 1. The Working Group on the Right to Development is a prime example. As described in Section 1.3.2.1, the right to development is the composite right of all universal rights and concerned with improving the overall well-being of humans, which is the very essence of SDG 1. The working group itself was established in 1998 with the mandate to promote the right to development. In 2018, the Human Rights Council decided that the Working Group on the Right to Development should “commence the discussion to elaborate a draft legally binding instrument on the right to development.”Footnote 92 Of course, whether the instrument to be negotiated will have an impact depends on its content – in particular, the levels of ambitions and solidarity exhibited and whether it will be widely ratified.Footnote 93
Special procedures refer to independent human rights experts who report on specific human rights issues and advise the Human Rights Council. Some special procedures that are relevant to SDG 1 include the special rapporteurs on the right to developmentFootnote 94 and on the right to food,Footnote 95 the independent expert on the effects of foreign debt on the full enjoyment of all human rights, particularly economic, social, and cultural rights,Footnote 96 and, most relevant, the special rapporteur on extreme poverty and human rights.Footnote 97 Special procedures provide an interesting institutional avenue for normative development because, unlike most other institutions, the experts are constrained by neither political dynamics nor legal instruments. They survey the landscape of law and policy within their mandate. Their reports, and the recommendations contained therein, need not be constrained by the strictures of law, which, as suggested above, are not sufficiently robust for the attainment of SDG 1. Successive special rapporteurs with various mandates have made recommendations, which are not strictly required by law, on how institutions of international economic law can better contribute to the achievement of SDG 1.Footnote 98 These special procedures thus provide pathways for increased ambition and innovative approaches that make it possible to advance solidarity.
However, the same flexibility that provides special procedure mandate holders with the freedom to make recommendations that are unconstrained by the strictures of legal rules and the methodology of international law affects the status and value of their outputs. While they are independent, and not constrained, at least not as rigidly, by any particular instrument, their reports and recommendations lack legal status, even if they are used in academic discourse and debate to push the envelope. The recommendations may be taken up by the institutions to which they are directed, such as the WTO or international financial institutions, or they may influence states and either be incorporated into legal instruments or assume legal relevance as subsequent practice under article 31(3) of the VCLT. However, their transition into the legal system depends on the endorsement and action by states or international institutions.
Another subsidiary organ of the Human Rights Council that may contribute to the achievement of SDG 1 is the Intergovernmental Working Group on Transnational Corporations.Footnote 99 This working group was established “to elaborate an international legally binding instrument to regulate,” in accordance with human rights law, “the activities of transnational corporations and other business enterprises.”Footnote 100 Transnational corporations have been accused of operating in resource-rich developing states, exploiting the resources for profit with little regard for the human rights of the population – particularly, their socioeconomic rights.Footnote 101 Establishing obligations for private entities to fulfill socioeconomic rights as they benefit from the resource-rich, but economically poor, states would be an important element in achieving SDG 1. Whether this materializes will depend on the ambition of the instrument and on whether it will be widely ratified, including by the home states of the entities being regulated.
Bodies charged with interpreting human rights instruments – both universal and regional – also have the potential to contribute to the achievement of SDG 1. These bodies include judicial bodies, such as the African Court on Human and Peoples’ Rights, the European Court of Human Rights, and the Inter-American Court of Human Rights, and quasi-judicial human rights monitoring bodies, such as the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights (CESCR). They can contribute to the achievement of SDG 1 by interpreting the rights related to the eradication of poverty in an expansive manner, as discussed in Section 1.2. This applies both to the content of the rights, which impacts on ambition, and to their territorial scope, which affects solidarity. Yet their findings are governed and constrained by the rules of interpretation. Moreover, the interpretive authority of quasi-judicial bodies is dependent on the readiness of states to adopt their interpretation as subsequent practice under article 31(3)(b) of the VCLT.Footnote 102
1.4.2 International Economic Institutions
International economic law too has institutions that could potentially contribute to the eradication of poverty. As a matter of rhetoric, international financial institutions have committed themselves to contributing toward meeting the SDGs and, in particular, SDG 1.Footnote 103 These institutions include the members of the World Bank Group, the IMF, and the WTO, and they have come under severe criticism for their unwillingness to contribute positively toward poverty reduction.Footnote 104 While many of these criticisms are normative in nature,Footnote 105 there are also many institutional concerns about equity in decision-making in these bodies. These concerns relate to the applicable decision-making procedures in financial institutions where participation in decision-making is based on financial contribution and developing states are not afforded an equitable role.Footnote 106 It has also been observed that “wealthy countries … have been able to coordinate their interests more easily through a variety of international economic legal and semi-legal entities” than poorer states.Footnote 107
Institutions themselves tend to be restricted by the constituent instruments and the states that created them.Footnote 108 This militates against the possibility of innovative solutions to address poverty reduction. Action, whether in the form of litigation before courts or complaints before quasi-judicial bodies, might provide a pathway to developing international law in a way that makes it more responsive to poverty concerns. The Inspection Panel of the World Bank is an example of an internal forum, established by the World Bank, with the mandate to hear and make determinations on complaints by members of society affected by the activities of the World Bank.Footnote 109 However, the Inspection Panel is limited in its mandate to consider harm caused by the “failure of the Bank to follow its operational policies and procedures” in relation to bank-financed projects.Footnote 110 It is these operational policies and procedures, and not the broad objective of poverty eradication, that the panel applies in assessing the World Bank’s performance.Footnote 111
However, there is room for greater synergy between instruments from different areas of international law and cross-fertilization, including through the principle of systemic integration. Both the World Bank and the panel could consider socioeconomic rights instruments, in interpreting and applying the Articles of Agreement and the operational policies and procedures in a manner that contributes to the achievement of SDG 1. Relying on human rights – in particular, socioeconomic rights and the right to development – in the interpretation of the World Bank’s instruments would be in line with the fact that the World Bank has adopted its twin objectives: ending extreme poverty and boosting prosperity.Footnote 112 This same reasoning can be applied by other institutions of international economic law, to the extent that their instruments permit. For example, as discussed above, the WTO Agreement proclaims in its preamble that raising the standard of living is an objective of the organization. This wording permits its institutions, including the panels and the Appellate Body, to integrate socioeconomic rights into their decision-making in order to contribute to the achievement of SDG 1.Footnote 113
There is therefore significant room for the institutions of international economic law, in interpreting and applying the rules of their institutions, to reach into other areas of international law – in particular, human rights law – in order to enhance the ability of international economic law to contribute to the achievement of SDG 1 and, indeed, all SDGs. Doing so, however, would not obviate the need for states to be more ambitious and conscious of the need to advance solidarity when making and developing the substantive rules of international law.
1.5 Conclusions
The SDGs set out the policy objective of the United Nations to make our world a better place for all who live in it. The SDGs are not a set of rules of international law. SDG 1 does not set forth a rule to eradicate poverty. Indeed, such an obligation does not exist under international law. International law, as a system, is not geared toward the eradication of poverty.Footnote 114 This was illustrated through an overview of the areas most closely related to poverty eradication – namely, international human rights and economic law. The human rights most closely associated with the eradication of poverty– socioeconomic rights – are subject to a number of qualifiers. Moreover, reflective of the general posture of international law, these human rights, in a practical way, do not exhibit a shared responsibility or solidarity, which undermines international law’s ability to fight poverty. Similarly, international economic law has been at the receiving end of some harsh criticism for, at best, its failure to contribute to poverty eradication and, at worst, its contribution to the increase of poverty. If international law is to contribute toward poverty eradication, a major recalibration is required.
The question that this chapter has sought to address is whether SDG 1 could be the impetus for recalibrating international law in support of poverty eradication. To contribute to advancing the rules of international law on poverty eradication would depend on the ambition of SDG 1, in terms of content, and on the extent to which it promotes solidarity. While the overall objective of SDG 1 is highly ambitious and couched in absolutist terms, the individual targets for its achievement lack the same absolutist character. Yet, even though these targets do not show an absolutist ambition, they are still, as far as content goes, more ambitious than current rules of international law and could contribute to the improvement of international law if they are taken into account in the making, molding, and interpretation of international law.
