The following article reproduces the speech given by the author at the conference for human rights promoted by the Institute of International Law of the Chinese Academy of Social Science, which was held in Biejing the 22 and 23 October
il seguente articolo riporta il discorso dato dall’autore alla conferenza per i diritti umani promossa dall’Istituto di Diritto Internazionale dell’Accademia Cinese di Scienze Sociali, tenutasi il 22 e 23 ottobe
Proclaiming human rights is not enough, if the necessary machinery and the social economic bases for their implementation are not set. This is true, in particular for economic and social rights, which require a positive attitude by institutional and economic actors and not just them to abstain from the violation of the rights of individuals and groups.
Even more, not only an institutional machinery is needed, but also a certain economic and social system. This is of course a scenario for the clash among different ideological and political visions. But such a clash is unavoidable. It has to be conducted on the basis of the experiences of the past, identifying which systems and which economic and institutional frameworks are the most apt to permit the fulfillment of human rights, particularly the social and economic ones.
In these last decades we assisted to the failure of neoliberal ideology, assuming that the so-called market was apt to regulate itself satisfying human needs and human rights. The vast economic and social crisis which erupted in 2008 showed without any doubts that the promoters of that ideology were wrong. Nowadays, the huge problems of climate change and environmental protection stress even more the deep inadequacy and noxiousness of that ideology. Clear public choices are necessary and urgent in order to save mankind from the definitive deterioration of every source of life. All these unsolved problems call for an assumption of heavy tasks by the States, individually and collectively considered.
That of a new economic international order has been an ideal pursued by the emerging States of the so-called Third World during the Seventies. Nowadays someone has declared, may be too hastily, the definitive failure of the attempt to establish such a new order. However, we have to say that the need persists and became even more urgent, in the light of some general goals which are of interest of the international community as a whole.
Putting our emphasis on social and economic rights doesn’t mean overseeing the nexus existing among the different categories of human rights. In fact, the traditional divisions in different categories reflect the historical development of international human rights law but the analysis of the necessary bases for the enjoyment of human rights reveals in a very clear manner the connection existing among them.
Due to its history, international position and choices, China represents no doubts a very important actor on this scene, whose activities have to be scrutinized and valorized on the point of view of the development of international law and international cooperation. In a multipolar world, characterized by the decline of traditional imperial powers, like that of the United States, we need a revalorization of the institutions forged in order to cope with international problems, starting with the fundamental one of protecting international peace and security, which is very closely linked with the satisfaction of the human rights of every kind.
Unity of human rights
The International Conference on human rights convened by the United Nations in Vienna in June 1993, asserted the unity and interconnectedness of human rights. In fact, the division proposed for a long time by the international legal doctrine among different categories or generation of human rights intended to respond to different attitudes adopted by groups of States. While the Western States with an industrial and more developed economy put their emphasis on civil and political rights, neglecting economic and social ones, socialist States and developing countries attributed importance to these ones. Moreover, we have to say that a certain interpretation of civil and political rights gave (and for many aspects continues to give) undue priority and importance to the Western thinking, transforming human rights into a pretext for the penetration of neocolonial ideologies and even for resort to war. What we need is, at the contrary, a really universal understanding of human rights, giving adequate weigh to all cultures of the world.
Essential condition for such an universal understanding is the unity and interconnectedness of human rights. To this end, it is worth quoting point 5 of the Vienna Declaration:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Some examples may be useful in order to fully understand the need for such unity and interconnectedness. You cannot participate adequately to the political life of your country if your stomach is empty or if you are homeless. You cannot defend adequately your right to work or to a sufficient salary, if your right to found or participate to a trade union is not ensured.
On the other hand, in order to affirm human rights it is of utmost importance to develop a dialogue among the different cultures existing inside humankind. Among these cultures the Chinese one is very important for the great contribution it gave to the spiritual and material development of humankind. We can find some important contents inside Chinese culture. One is that of harmony. A harmonic society is needed for assuring human rights to everyone. The quest for harmony requires to struggle against the growing inequalities which are affecting the planet as an effect of economic and financial globalization. In western societies we assist unfortunately to a growing distance among the different social sectors. Some restricted sectors get wealthier and wealthier while the majority suffers for the impossibility to satisfy even its basic rights to a sufficient income, food, water and adequate housing.
Also the right to a healthy environment, which gets more and more important for the future of our planet, is directly connected to the other rights of every nature. In order to protect environment you should have the possibility to participate to the government of the country and also to local government. The right to a sustainable development, as affirmed the first time by the Rio Conference on Environment and Development (UNCED) in 1992, implies the right to a sustainable economy able to satisfy the basic needs of the whole society, as a precondition for an effective harmony.
The contents of New Economic International Order
It is very important to emphasize the fact that present international community is a result of a historical development, marked by the expansion of Western Powers and their control of the resource of the entire planet. In fact, the beginning of modern international community coincides entirely with the so-called Discovery of America (1492) which paved the way to European colonialism and imperialism in the rest of the world.
As a result of that Western expansion the different countries are equal only from a formal point of view, but present important differences in their degree of development. In order to overcome such differences, the United Nations General Assembly voted, in the year 1974, two important resolutions dedicated respectively to “economic duties and rights of States” and to a new international economic order.
Notwithstanding their no binding character common to all United Nations General Assembly resolutions, such resolutions represents the expression of some fundamental principles of international law like those of sovereignty, territorial integrity and political independence of States, sovereign equality of all States, non-aggression; non-intervention; mutual and equitable benefit, peaceful coexistence; equal rights and self-determination of peoples, peaceful settlement of disputes; remedying of injustices which have been brought about by force and which deprive a nation of the natural means necessary for its normal development, fulfillment in good faith of international obligations, respect for human rights and international obligations, no attempt to seek hegemony and spheres of influence; promotion of international social justice, international co-operation for development, free access to and from the sea by land-locked countries within the framework of the above principles, freedom of choice of economic system.
Focusing our attention on resolution 3281 (XXIX) adopted on 12 December 1974 and containing the Charter of Economic Duties and Rights of States, we can ascertain that it affirms the sovereign and inalienable rights of every State to choose its economic system as well as it political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever (art. 1). Moreover it affirms the right of every State to freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities, to regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities, to regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply with its laws, rules and regulations and conform with its economic and social policies and to nationalize, expropriate or transfer ownership of foreign property (art. 2).
The Charter, therefore, emphasizes the role to be played by States and seems consequently at odds with the neoliberal doctrine calling for privatization, deregulation and the reduction of the public intervention in every sphere.
The role of State, the problem of available resources and the realization of human rights
For the purpose of this writing, the most important article contained in the Charter of the economic duties and rights of States is article 7. Its text reads as follows:
Every State has the primary responsibility to promote the economic, social and cultural development of its people. To this end, each State has the right and the responsibility to choose its means and goals of development, fully to mobilize and use its resources, to implement progressive economic and social reforms and to ensure the full participation of its people in the process and benefits of development. All States have the duty, individually and collectively, to co-operate in eliminating obstacles that hinder such mobilization and use.
Among such obstacles, which should be eliminated by the cooperation among all States, we can find phenomena such as excessive foreign debt of developing countries, widespread tax avoidance, tax evasion, tax fraud and profit shifting. In fact all such phenomena cause the reduction of resources, especially financial ones, at the disposal of countries in order to promote the development of their peoples.
It is very important to recall, in this framework, the attempt of various lawyers and jurists to precise the legal discipline of foreign debt of developing countries, posing limits to the powers of international finance. An important resolution concerning the principles to be followed in case of debt restructuring has been voted by the United Nations General Assembly on 10 September 2015. Important principles reaffirmed by this resolution are those of the right of a sovereign State to design its macroeconomic policy, good faith, transparency, impartiality, equitable treatment, sovereign immunity, legitimacy, sustainability and majority restructuring. It is now necessary to ask the International Court of Justice, in the exercise of its function to give advisory opinions on every issue of international law, to pronounce itself on the legal discipline of foreign debt of developing countries. This issue seems nowadays ripe for an in-depth legal analysis. As affirmed by the Representative of the Holy See to the United Nations,
Access to credit is an essential element of the economic life of peoples and families. Therefore, an in-depth scientific analysis of the ethical and juridical conditions attached to international credit and to restitution is necessary (1).
A very important work concerning some other aforementioned phenomena has been recently accomplished by the United Nations Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas. One of his reports, adopted on 4 August 2016 (2),
focuses on impacts of taxation on human rights and explores the challenges posed to the international order by widespread tax avoidance, tax evasion, tax fraud and profit shifting, facilitated by bank secrecy and a web of shell companies registered in tax havens. The Independent Expert calls for resolute action by the international community, including through the creation of a United Nations tax cooperation body, the adoption of a United Nations tax convention, the phasing out of tax havens, the revision of the Guiding Principles on Business and Human Rights to include the obligation of corporations to pay their fair share of taxes and the adoption of a financial transactions tax.
Bases for the role of China in promoting a new international economic order favourable to human rights
The struggle for a new international economic order favourable to human rights of every kind should be conducted by States and social movements in the context of the new multipolar world whose features are getting clearer day by day. The Peoples’ Republic of China, due to its history, its ideology and its growing power, can be one of the main supporters of this fundamental objective. We can identify three different bases for the role of China in promoting such a new international economic order.
The first basis is formed by the Chinese Constitution. This Constitution aims to build up a strong State in order to foster and promote the rights of the people. It is sufficient here to recall the text of the first article of Chinese Constitution:
The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.
The socialist system is the basic system of the People’s Republic of China. Disruption of the socialist system by any organization or individual is prohibited.
Article 1 of the Chinese Constitution refers to the popular and poorer sectors of the population (working class, workers, peasants) and to a “socialist system” which is the exact contrary of a neoliberal one. Such a system is definitively established and its unthinkable to adopt a perspective different from that of socialism. The last sentence of article 1 of the Chinese Constitution prohibits expressly to disrupt the socialist system.
The second basis for the role of China in promoting a new international economic order is its undeniable quality of developing country, which is by no means in contradiction with the fact that it is, at the same time, the second (or first) largest world economy. In fact China always participated to the activities of the so-called Group of 77 and to the other coalitions born inside the United Nations in order to give strong voice and adequate political weigh to the States aspiring to change the traditional economic world order.
The third basis for the role of China in promoting a new international economic order is the fact that modern China is itself a result of anticolonial struggle, which succeeded in expelling foreign powers and proxy regimes. The connection between anticolonial struggle and the new international economic order is self-evident, since this one aims at liberating the developing countries from neocolonial dependence.
Summing up, the time has come for all States to unify their struggle in order to achieve human rights for all. If it is true that each State pursues its own notion of good, the challenges of globalization need a common language among States, which can be only that of human rights, to be correctly interpreted on the basis of their interconnectedness and unity and of the common core of all existing cultures.