A Sovereign Debt Overhang, Human Rights and the MDGs : Legal Problems through an Economist’s Lens

The first book to address the links between sovereign debt and human rights. Authors are renowned jurists, economics, historians and social scientists, all of which examine the links between debt and human rights from a variety of angles. The book is structured around five basic parts. The first sets out the historical, political and economic context of sovereign debt. Indeed, without understanding how debt accumulates, why it is necessary and to whom it is owed, it is impossible to fully comprehend the full range of arguments about its impact on human rights. The second part effectively addresses the human rights dimension of the three types of sovereign lenders, namely inter-governmental financial institutions (IFIs) (chiefly those from the World Bank group and those within the EU framework), sovereigns and private lenders. Part II examines also debt-influencing mechanisms, and with the exception of vulture funds that will be analysed in Part V, here we examine the role of export credits, credit rating agencies and bilateral investment treaties. Part III goes on to make the link between debt and the manner in which the accumulation of sovereign debt violates human rights. From there, Part IV examines some of the conditions imposed by structural adjustment programs on debtor states with a view to servicing their debt. All of these conditionalities have been shown to exacerbate the debt itself at the expense also of economic sovereignty. It is thus explained in Part IV that such measures are not only injurious to the entrenched rights of peoples, but that moreover they exacerbate the borrower’s economic situation. Finally, Part V addresses the range of practical responses to sovereign debt, such as odious debt claims, unilateral repudiation, establishment of debt audit committees and others.


2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Juan Pablo Bohoslavsky ◽  
Kunibert Raffer

AbstractThis piece tackles Barrio Arleo and Lienau’s comments on Sovereign Debt Crises: What Have We Learned? while tries to further develop some ideas and discussions proposed in the book. This piece deals with existing alternatives to overcome debt crises, the link between sovereign policy space and the principle of creditors’ equal treatment, who the target of the book is (and should be), whether “learning is enough”, and the potential policy and legal role of human rights law in debt restructurings.


2020 ◽  
pp. 267-286
Author(s):  
Mikhail A. Gussev ◽  
Yessil S. Rakhmetov ◽  
Aliya K. Berdibayeva ◽  
Ainash Yessekeyeva

The aim of the article is to analyze the paternity as a component of the institution of the family, its modern transformations and the resulting challenges, including modern features of parenthood. The authors show that the modern understanding of paternity is determined by gender identity and social constructs that equalize the rights of all persons who act as guardians of the child. The authors determine that the problem of paternity involves not only civil issues, but also family and in-ternational law. The authors of the article clearly show that paternity can act not only as a voluntary, conscious act, but also as a mandatory legal norm. In particu-lar, the authors note that it is possible to use the method of establishing paternity or delegating part of the authority to raise a child in the context of considering public law and its prevalence over family law. The practical significance of the study is determined by the fact that the importance of establishing the principles, as well as the legal conditions for implementing the functions of paternity, will form not only legal but also social forms and even economic parameters for citi-zens and address issues of ensuring human rights, including the rights of the child.


2021 ◽  
pp. 297-316
Author(s):  
Matthias Goldmann

While human rights discourse became fundamental for challenging austerity in the aftermath of the Great Financial Crisis, in historical perspective, such a role of human rights represents the exception rather than the rule. Human rights discourse in the context of sovereign debt-induced austerity has varied enormously over time. Far from reflecting progress, its history reveals changing paradigms of human rights law. This chapter focuses on one of these paradigm shifts occurring at the turn from the 1970s to the 1980s. In the 1970s, newly independent states invoked human rights mostly to assert their sovereignty and avert international interference. This structural human rights paradigm abruptly disappeared from austerity debates in the 1980s, when the sovereign debt crisis hit the Global South, creating a need for multilateral liquidity assistance. Faced with pressure to reconsider the social impact of structural adjustment programmes, the International Monetary Fund shifted the terms of the debate from ‘human needs’, a human rights-related term, to ‘human capital’. Consequently, at the time when human rights rose to the status of the ‘last utopia’, they ceased to have relevance for austerity. Hence, whether human rights discourse promotes social ends depends on the particular context and time. The chapter ends by proposing a political paradigm of human rights law reflecting this insight.


Author(s):  
Ilias Bantekas

States enjoy the right to unilaterally denounce sovereign debt that is odious, illegal and illegitimate under strict circumstances. This entitlement does not exist where the debt(s) was/were incurred lawfully. A particular form of denunciation is sovereign insolvency, whose unilateral manifestation, is treated in practice by similar principles and responses as those apply mutatis mutandis to other forms of debt management. This chapter identifies, in addition to insolvency, five forms of unilateral debt denunciation that arise from the limited practice of states, which are moreover consistent with general international law. These are: (a) repudiation or non-enforcement of arbitral awards on public policy grounds; (b) denunciation on grounds of executive necessity and/or the right to fiscal/tax sovereignty; (c) direct unilateral repudiation on the basis of reports by national debt audit committees; (d) repudiation of contracts when creditor/investor violates human rights and of unconscionable concession contracts; (e) re-negotiation of bilateral investment treaties and concessions.


Author(s):  
Cephas Lumina ◽  
Mulesa Lumina

In recent years, there has been increasing attention to the problem of illicit financial outflows—broadly defined as funds that are illegally earned, transferred and utilized outside the country of origin in contravention of that country’s relevant legal framework. Illicit financial outflows divert resources away from activities that are essential for poverty reduction, sustainable development and the realisation of all human rights. They also contribute to the accumulation of external debt as governments that lack domestic resources as a result of these flows may resort to costly external borrowing. This chapter examines the nature of illicit financial flows, the factors that facilitate them and the measures taken by states, individually and collectively, to tackle them. It also discusses the impact of these flows on the realisation of human rights in the countries of origin and proposes concrete measures by which to curb illicit financial flows.


2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.


2020 ◽  
Vol 6 (1) ◽  
pp. 125-147
Author(s):  
W Mark C Weidemaier

ABSTRACT This article examines the intersection between two key attributes of sovereign debt governance in the Euro Area. First, sovereigns mostly issue bonds governed by their own law. This ‘local law advantage’ should make debt restructuring comparatively easy, as the sovereign can change the law to reduce its debt. The second attribute is the so-called ‘Euro CAC’, which is a contract-based restructuring mechanism mandated by the Treaty Establishing the European Stability Mechanism (the ESM Treaty). The Euro CAC lets a bondholder supermajority approve a restructuring and bind dissenters. Since 2013, nearly all Euro Area sovereign debt has included the clause. Many believe the ESM Treaty requires governments to use the Euro CAC to restructure. But if so, the Treaty is a suicide pact, for the design of the Euro CAC is flawed. In a meaningful subset of cases, the clause will not provide adequate debt relief. This article makes two primary contributions. First, using an Italian restructuring as an example, it explains why the ESM Treaty does not, in fact, require the use of the Euro CAC. Second, it examines the legal constraints—the most pertinent of which derive from the European Convention on Human Rights—that do restrict the use of local-law advantage.


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