What Is Still Missing from the International Order

Gap five: the economic structure

Nothing binding addresses the distribution of wealth, the terms of trade or the rules of finance as human rights questions.

The attempt was made. The New International Economic Order resolutions of 1974 and the Declaration on the Right to Development of 1986 are the record of it, and Module IV of this paper is that record. What survives is a declaration and not an obligation.

What exists in binding form is article 2(1) of the Economic, Social and Cultural Covenant, which requires steps through international assistance and co-operation but obliges no State to supply anything to any other.

This is the gap that gives the paper its subject. [Why the New International Economic Order Failed] and [The New International Economic Order Assessed Today] are where the argument is settled.

Sorting the five

Curable by law: gap one, a court, and gap three, corporations. Both are drafting and ratification problems.

Political: gap two, the veto; gap four, selectivity; and gap five in its ambitious form, since a redistribution treaty fails for the same reason the New International Economic Order failed, that those who would pay must consent.

Gap five has a curable fragment, since obligations of process, such as participation in the governance of financial institutions and transparency in trade rules, are within reach even where obligations of outcome are not.

Worked example

Asked what single reform would most improve the order, compare two candidates.

A world court would cure gap one and would leave gaps two, four and five untouched, and its judgments would still need State execution.

A binding corporate instrument would cure gap three and would reach conduct that no existing mechanism reaches at all, including conduct in States too weak to regulate it.

The stronger answer takes the second and explains why: gap three is the only gap where the affected conduct currently falls outside the system entirely, whereas gap one concerns the quality of a remedy that already exists in some form.

What it does NOT mean

A gap is not a failure of the whole. The order in 1945 had no catalogue, no committee and no court, and the honest verdict is large achievement with structural limits.

And these are not the only gaps. Reservations, non-reporting and the treaty bodies' backlog are real, and they are defects of operation rather than of architecture.

Quick revision

• Five gaps: no world human rights court; enforcement only through Chapter VII and the veto; no binding reach over corporations; selectivity; no binding treatment of the economic structure.
• Curable by law: the court, and corporations. Political: the veto, selectivity, and redistribution.
• Committee views are not judgments; regional courts give binding judgments, so protection depends on geography.
• Corporations: Guiding Principles on Business and Human Rights, endorsed 2011, on protect, respect, remedy; a binding instrument under negotiation since 2014.
• Economic structure: what survives is article 2(1) of the ICESCR and two declarations; obligations of process are reachable where obligations of outcome are not.

Test yourself

1. Name the five gaps and classify them. The first is the absence of a world court of human rights open to individuals: a person with a Covenant claim reaches the Human Rights Committee, a body of eighteen independent experts that adopts views which are authoritative interpretations and not binding judgments, whereas a resident of Europe, the Americas or Africa may reach a court whose judgments bind the respondent State. The second is that coercive enforcement lies exclusively with the Security Council under Chapter VII, and therefore under the veto of five States. The third is the absence of binding obligations on corporations, which are not and cannot be parties to human rights treaties. The fourth is selectivity, since identical conduct attracts different responses according to who is responsible. The fifth is the absence of any binding treatment of the distribution of wealth, the terms of trade or the rules of finance as human rights questions. The first and third are curable by law, being problems of drafting and ratification. The second, the fourth and the ambitious form of the fifth are political, since each requires the consent of those whose power or wealth the reform would reduce.

2. What exists in place of binding obligations on corporations, and why has a treaty proved difficult? What exists is a soft framework with hard edges at the margins. The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, rest on three pillars: the State duty to protect against abuses by third parties including business, the corporate responsibility to respect human rights through policy commitment, human rights due diligence and remediation, and access to effective remedy through judicial and non-judicial mechanisms. Around them sit domestic statutes requiring supply chain disclosure or due diligence, procurement conditions, and in a few States civil liability for harm caused abroad. A binding instrument has been under negotiation in an intergovernmental working group since 2014 without agreement, for three reasons. Jurisdiction is contested, since a treaty giving a home State's courts reach over conduct in a host State cuts across territorial sovereignty. The corporate veil obstructs attribution of a subsidiary's conduct to a parent. And the content of the obligation is disputed, since companies resist a duty framed in the same terms as a State's and prefer a due diligence standard, which is a duty of conduct rather than of result.

3. Why is the fifth gap the one this paper exists to examine? Because a paper on human rights and the international order is asking what the order owes, and the answer given by the binding law is very little. Article 2(1) of the Economic, Social and Cultural Covenant requires each State to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, which obliges each State to act but obliges no State to supply anything to another. Everything more ambitious exists as declaration: the Declaration on the Establishment of a New International Economic Order and the Charter of Economic Rights and Duties of States, both of 1974, and the Declaration on the Right to Development of 1986. Those texts assert that the structure of trade, finance and technology transfer is itself a human rights question, and none of them binds. The gap is therefore the subject of Module IV, and the honest conclusion has two halves: obligations of outcome, such as a duty to transfer resources, failed and will fail because those who would pay must consent; obligations of process, such as participation in the governance of financial institutions, transparency in trade rules and impact assessment, remain reachable and are where the argument is now conducted.