Dissertation

An Elephant in the Room? Can Economic and
Social Rights be Secured Within the Framework
of Neoliberal Globalisation?

Contents
1. Introduction……………………………………………………………………………………….1
2. Human Rights Law and Human Right Obligations………………………………....4
3.An Overview of the Current Human Rights Conditions Under Neoliberal
Globalisation: Global Poverty, Inequality and Economic Crisis ..........................8
4.The Fundamentals of Neoliberal Globalisation And Its Conflict With
Economic and Social Rights ……………………………..…………………………………...14
A. Neoliberal Globalisation: What is it?..........................................................14
i. Current Deficiencies in the Literature……………………………….14
ii. Unpacking the Meaning and Contents of
Neoliberal Globalisation……………………………………………………16
B. Fundamental Conflicts Between Neoliberal Globalisation and
Economic and Social Rights………………………………………………………….19
i. A Clash of Ideologies and Positions on Human Rights………...20
ii. A Clash of Priorities: Profit or Human Rights?...........................21
iii. A Clash of Roles: The Position of the State……………………….28
iv. An Elephant in the Room: A Summary of the Fundamental
Conflicts…………………………………………………………………………….33
5. An Example of Neoliberal Globalisation in Practice: Free Trade and
Economic and Social Rights…………………………………………………………………...33
A. Free Trade, Poverty and Development……………………………………..35
B. Free Trade and the Right to Food……………………………………………...39
6. Conclusion………………………………………………………………………………………...42
7. Bibliography……………………………………………………………………………………..45

1
An Elephant in the Room? Can Economic and
Social Rights be Secured Within the Framework
of Neoliberal Globalisation?
Abstract
The dissertation seeks to examine the compatibility of the system of neoliberal economic
globalisation with economic and social rights. In doing so it argues that there is an elephant
in the room here as these human rights cannot be realised under such conditions. In seeking
to demonstrate this, it first analyses the dire current situation of global socioeconomic
human rights under the present conditions of globalisation. It then moves on to the crux of
the dissertation where it aims to overcome current deficiencies in analyses of globalisation's
human rights effects by thoroughly analysing the meaning, content and driving forces of
globalisation and thus revealing its neoliberal character. A detailed analysis of this neoliberal
underpinning reveals fundamental conflicts with economic and social rights which, it is
argued, renders the fulfilment of such rights impossible. It is then sought to demonstrate
this incompatibility through a concrete example by taking a core neoliberal policy of free
trade and analysing its negative effects upon socioeconomic rights. In concluding, the
dissertation reiterates that there is indeed an elephant in the room and it suggests that this
acknowledgement, rather than being one of pessimism, provides an opportunity and adds
impetus to the emerging conversation on the need to transform economic globalisation so
that the realisation of economic and social rights is at its core.
1. Introduction
This dissertation seeks to question whether in fact discussions around the realisation of
economic and social rights are seriously undermined by the persistent presence of an
elephant in the room, that is, that these rights simply cannot be fully realised within the
system of neoliberal globalisation. The desire to analyse this issue was kindled upon coming
across the notion that "the failure to secure the socioeconomic rights of so many people is
largely a consequence of a global system that structurally disadvantages half the world

2
population"1
which demonstrates the importance of a fundamental questioning of whether
or not the potential of economic and social rights is subject to a permanent barrier in the
form of the neoliberal model of globalisation which perpetually limits the extent to which
these human rights can be fulfilled. Indeed, the imperative of critiquing neoliberal
globalisation through a human rights lens is made all the more pressing given the continuing
decimation of socioeconomic rights in the wake of the 2008 world economic crisis.
Analyses of economic and social rights which do not consider the overarching economic
structure within which they operate erroneously view such rights in a vacuum while those
who advocate the realisation of these rights without understanding the constraints imposed
by neoliberal globalisation are ultimately resigned to fighting a losing battle. The literature
on the potential conflict between human rights and economic globalisation in general is
relatively sparse yet there is growing interest in this area and this piece aims to add to this
emergent and long overdue conversation. However, it seeks to avoid the deficiencies that
blight much of the relevant literature in that most commentators tend to treat globalisation
as a natural, neutral phenomenon without seriously examining its true meaning and its
driving forces . Consequently, this dissertation attempts to clarify the true nature of
globalisation by highlighting that it is deeply rooted in the politico-economic theory and
policies of neoliberalism. As a result, this piece stands as an example that human rights do
not exist in a vacuum and that to truly pursue the potential of human rights, one must
seriously analyse the political and economic contexts within which they operate.
The dissertation begins by examining the relevant human rights law in relation to economic
and social rights s which the compliance of economic globalisation can be judged. Against
this backdrop is juxtaposed a general overview of the world human rights situation which
uses the extent of poverty and economic inequality as indicators of the enjoyment of
socioeconomic rights to demonstrate the grossly unsatisfactory state of such rights at
present under the current neoliberal model of globalisation. The general deficiencies in the
literature in relation to its failure to properly examine the contents of globalisation and the
notions which underpin it will then be considered before detailing the importance of
remedying such a situation and placing human rights within their economic and political
1
Margot E. Salomon 'Why Should it Matter that Others Have More-Poverty Inequality and the Potential of
Human Rights Law' (2011) 37 (5) Review of International Studies 2145.

3
contexts. The true nature of globalisation will then be clarified which will necessitate an
analysis of the meaning and policies of neoliberalism along with a short historical
description of how the dominant model of globalisation came to be a neoliberal one. This
will allow the fundamental conflicts between neoliberal globalisation and the protection of
economic and social rights to be thoroughly examined. After detailing these underlying
conflicts, the dissertation will go on to examine a practical example which is demonstrative
of the negative effects of neoliberal globalisation and its inability to bring about the
realisation of economic and social rights by studying the operation of a fundamental tenet
of neoliberalism in the form of free trade. To this end, the effects of free trade upon
economic and social rights generally will be discussed by examining its impact upon poverty
and development before narrowing the focus further to consider the effects of the
liberalisation of trade in agriculture and its effects on the right to food.
In pursuing these issues, this article shall argue that the original question posed in the title
should be answered in the affirmative, that is, that there does indeed exist an elephant in
the room in relation to the protection of economic and social rights as neoliberal
globalisation conflicts with these human rights to such a fundamental degree as to
substantially limit the extent to which they can be realised. Indeed, whilst not writing
specifically on the topic at hand, it is hard to offer a better summary of the unfavourable
conditions created by neoliberal globalisation to the detriment of human rights than Judge
Antônio Augusto Cançado Trindade who, in his habitual eloquence, describes that 'a world
that appears determined to protect capitals, goods and services, but not human beings, has
changed the ends for the means. A world that has subjected the majority of human beings at
the service of the interests and greed of a few, has forgotten that we all are born free and
equal in rights'2
.
This quote is indicative of the fact that the neoliberal emphasis on the functioning of the
unregulated free market, with its insistence on the economic interests of efficiency, growth
and profitability, and which is largely unconstrained due to the neoliberal aversion to an
active redistributive state, has seriously hindered economic and social rights, especially
2
Case of the "Street Children" (Villagran-Morales et al.) v. Guatemala (Merits), Judgment of November 19,
1999, IACtHR Series C No.77, Separate Opinion of Judge A.A. Cançado Trindade, para.20.

4
those of the poor and marginalised rather than delivering its purported benefits. As such,
the protection offered by socioeconomic rights in their current position of subordination to
the neoliberal economy is akin to that offered by an umbrella in the midst of a hurricane.
Within the framework of the global neoliberal economic system, the potential of human
rights is inherently limited such that their role is relegated from securing the inherent
dignity of every human being to merely being engaged in a constant damage limitation
exercise, attempting to limit the negative consequences of neoliberal globalisation.
However, more positively, an analysis of these structures provides an opportunity to change
the form of globalisation as it stands today. Neoliberal globalisation is a result of human
action and political choices which has had a detrimental effect on the enjoyment of
economic and social rights worldwide yet by recognising this, we can begin to work towards
a more humane economic globalisation which places compliance with human rights law at
its core.
2. Human Rights Law and Human Rights Obligations
In examining the human rights compatibility of of the overarching economic structures put
in place under neoliberal globalisation, one must start out by identifying the relevant
obligations under human rights law so that compliance with these obligations can be tested.
It shall be identified here that human rights law places obligations not only on individual
states in relation to their domestic affairs but it also imposes extraterritorial obligations and
even places obligations on the international community as a whole . This last point in
particular has especial relevance given that the responsibility for the design of global
neoliberal system cannot be laid at the feet of a single state but is the responsibility of all
states. Of course, given the focus upon economic and social rights, the International
Covenant on Economic, Social and Cultural Rights3
(ICESCR) is the first port of call.
ICESCR sets out a number of substantive human rights which are directly affected by the
design of the global economy, namely, the right to work (Article 6); the right of everyone to
an adequate standard of living, including adequate food, clothing and housing, and to the
continuous improvement of living conditions (Article 11); the right of everyone to the
3
International Covenant on Economic, Social and Cultural Rights (1966) entered into force 3 January
1976, GA res. 2200A (XXI).

5
enjoyment of the highest attainable standard of physical and mental health (Article 12) and
the right to education (Article 13). Article 2(1) of ICESCR points out that States are obliged
to undertake to take steps to the maximum of their available resources, with a view to
achieving progressively the full realization of the rights in the Covenant by all appropriate
means.
The Committee on Economical, Social and Cultural Rights (CESCR) has clarified the elements
of these obligations stating that "progressive realisation" merely recognises that full
realisation of the rights of the Covenant "will generally not be able to be achieved in a short
period of time"4
and that States must "move as expeditiously and effectively as possible
towards that goal"5
. In moving towards this goal, an obligation of non-retrogression applies
such that any attempt to reduce the enjoyment of economic and social human rights
retrogressive steps as such measures requires "the most careful consideration" while there
exists "a minimum core obligation to ensure the satisfaction of, at the very least, minimum
essential levels6
" of each of the substantive rights. This means that where people lack
essential foodstuffs, primary healthcare, basic shelter and housing, or basic forms of
education, the State is prima facie violating their Covenant obligations7
. The obligation to
use maximum available resources has developed to be understood as going beyond
examining the level of economic output of a country to taking into account the amount that
a State makes available or generates in pursuit of the realisation of human rights8
.
The obligations on the state in pursuing these economic and social rights are tripartite,
requiring that the State respect, protect and fulfil9
. The obligation to respect means that a
state must not interfere with an individual's enjoyment of a given right. The obligation to
protect requires that the state prevent third parties, whether they are individuals or
enterprises, from depriving individuals of their enjoyment of a particular human right. Eide
rightly points out that this requires action of the state in relation to more aggressive or
4
CESCR, General Comment No. 3, The Nature of State Parties Obligations (Art 2(1)), (5th Session, 1990) UN
Doc. E/1991/23,para. 9.
5
Ibid.
6
Ibid, para. 10.
7
Ibid.
8
Asbjørn Eide 'Economic, Social and Cultural Rights as Human Rights' in Asbjørn Eide, Catarina Krause and Allan
Rosas, Economic, Social and Cultural Rights: A Textbook (Dordrecht; London: Martinus Nijhoff, 1995), p.39.
9
See for example: CESCR, General Comment No. 12, The Right to Adequate Food (Art.11) (20th Session, 1999)
UN Doc. E/C.12/1999/5 para. 15.

6
assertive subjects such as the more powerful economic interests in society10
which is of
particular relevance to the present discussion given the increased power of the private
sphere and large transnational corporations in particular under neoliberal globalisation (as
will be discussed below). At the tertiary level, the obligation to fulfil is bifurcated into an
obligation to facilitate or assist individuals to realise their socioeconomic rights as well as an
obligation to directly provide in certain circumstances.
CESCR has confirmed that these obligations under Article 2(1) also apply extraterritorially
which is pertinent to the current discussion as states must refrain from actions that could
breach human rights in other countries11
, extending to a duty to ensure that the policies of
organisations of which they are members, such as the World Trade Organisation (WTO),
International Monetary Fund and the World Bank (which have been the principal
institutions in constructing and governing the policies of neoliberal globalisation as
discussed below) do not impede the enjoyment of Covenant rights12
.
The discussion of neoliberal globalisation and its undermining of socioeconomic rights also
necessarily raises the issue of compliance with the right to development as this human right
is inextricably linked with ICESCR given that the realisation of the rights contained in the
Covenant is at the core of the right to development. Article 1 of the Declaration on the Right
to Development13
(DRD) states that this right means that "every human person and all
peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and
political development, in which all human rights and fundamental freedoms can be fully
realised' and states have the duty to formulate developmental policy aimed at moving
towards the realisation of this right.
Of particular importance in relation to the present discussion regarding the potential
incompatibility of neoliberal globalisation vis-à-vis socioeconomic rights are the obligations
of international cooperation placed upon the international community of states which
10
Eide, Supra n.8 p.37.
11
David Kinley, Civilising Globalisation: Human Rights and the Global Economy (Cambridge: Cambridge
University Press, 2009) p.53.
12
International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights (26 January 1997), para.19. States also have an obligation of international co-operation in relation to
the issue of the human rights impacts of international organisations.
13
Declaration on the Right to Development, GA res A/RES/41/128, December 4, 1986, UN GAOR
Supplement. (No 53) 186, UN Doc A/RES/41/53 (1986), annex 41.

7
require the creation of a global order conducive to the realisation of human rights and
which therefore attribute responsibility where structural obstacles inhibit the realisation of
economic and social rights.
Such obligations have their foundations in Article 55 and 56 of the UN Charter which call for
joint and separate action to achieve the purposes of the UN14
, as well as Article 28 of the
Universal Declaration of Human Rights15
which states that 'Everyone is entitled to a social
and international order' in which human rights can be fully realized. They are codified in
Article 2(1) of ICESCR which sets out that steps aimed at progressively achieving the full
realisation of the rights therein of should be taken individually as well as through
'international assistance and cooperation'. Similarly, Article 3(3) DRD lays out that "states
have the duty to co-operate with each other in ensuring development and eliminating
obstacles to development". Indeed, this article of DRD hints that the question as to whether
the international community of states currently fulfils the obligation of creating an
international order conducive to the realisation of human rights shall be answered in the
negative as it goes on to call for a 'new international economic order'. This reflects the fact
that the DRD gave expression to the notion that the ability of states to fulfil their human
rights obligations are constrained by the structural arrangements of the international
community16
; structural arrangements which remain intact today due to the persistence of
the neoliberal economic order.
Having clarified these rights and the corresponding obligations both of states and of the
international community as a whole, one is enabled to consider whether the current system
of neoliberal globalisation is leading to rights being violated and obligations being breached.
It does so by looking at the global state of socioeconomic human rights, using poverty and
inequality as indicators and the current global economic crisis as a snapshot of human rights
under neoliberalism, and demonstrating that the dire situation on display is largely the
product of operation of neoliberal economic globalisation.
14
These purposes include higher standards of living, full employment, and conditions of economic and
social progress and development solutions of international economic, social, health, and related problems.
15
Universal Declaration of Human Rights, GA res. 217A (III), 10 Dec. 1948, UN GAOR, 3rd Session
Resolutions, pt 1, UN Doc A/810 (1948).
16
Margot E. Salomon, 'International Human Rights Obligations in Context: Structural Obstacles and the
Demands of Global Justice', in Bård Anders Andreassen and Stephen P. Marks, Development as a Human Right:
Legal, Political and Economic Dimensions, 2nd edition (Antwerp: Intersentia, 2010)

8
3. An Overview of the Current Human Rights Conditions Under the
Neoliberal Model of Globalisation: Global Poverty, Inequality and
Economic Crisis
It is undeniable that poverty is a scourge which continues to blight the lives of billions
around the world in this age of globalisation, both in developing as well as developed
countries17
. 40.7 per cent of the world's population lives on less than $2 a day, the World
Bank's indicator of moderate or average poverty, while 20.6% live under the $1.25 level of
extreme poverty, based on 2010 figures18
. While the proportion of people in poverty
appears to have been falling since 1980, if China is taken out of the equation, the number of
people living in extreme poverty globally may have actually increased in the past three
decades19
, a trend that is supported by evidence from the World Commission on the Social
Dimension of Globalization20
. Similarly, the apparent fall in the poverty rate also ignores
serious concerns that surround the arbitrary placing of poverty levels at $1.25 and $2 as, for
example, Chossudovsky deems this to be a "manipulation" of income statistics which
misrepresents the poor as being a minority group in developing countries21
. Yet, regardless
of increase or decreases, Joseph is apt in asserting that 'in any case, the number of people
living in poverty remains enormous'22
.
The extent of inequality between and within countries which plagues the world and which
continues to grow makes for equally stark reading. The ratio of the income of the world's
17
CESCR, Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights (25th
Session, 2001), UN Doc. E/C.12/2001/10 para. 5.
18
World Bank, 'Poverty Overview' (World Bank, April 2013)
<http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPA/0,,contentMDK:20040961~menu
PK:435040~pagePK:148956~piPK:216618~theSitePK:430367~isCURL:Y,00.html> Accessed 28 August 2013.
19
Salomon, supra, n.1 p.2138.
20
World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for
All (Geneva: ILO, 2004) p.44 where it notes that between 1990 and 2000 there were rises in the number of
people suffering from extreme poverty in sub-Saharan Africa, Europe and Central Asia, and Latin America and
the Caribbean, while the decreases in the global proportion was largely due to results in India and China.
21
Michael Chossudovsky, The Globalisation of Poverty: Impacts of IMF and World Bank Reforms (London: Zed
Books, 1997) p.166. He demonstrates this by pointing out that at the time he was writing, 20% of Americans
were deemed to be below the poverty line according to the US Bureau of the Census due to having an annual
income below $20,000 while at the same time only 19% of Latin America and the Caribbean were estimated to
be poor on World Bank estimates.
22
Sarah Joseph, Blame it on the WTO?: A Human Rights Critique (Oxford: Oxford University Press, 2010), p.166.

9
poorest 10% to the richest 10% is 1 to 10323
and the world's Gini Coefficient (where 0 is
perfect equality and 100 is total inequality) stands at 67 which is higher than for any single
country except Namibia24
. The top 5 per cent of individuals in the world receive around a
third of world income while the top 10 per cent receive half25
; a gross disparity which is
greatly worse when one considers wealth rather than income26
. Indeed in 1998, the assets
of the world's top 3 billionaires were more than the combined GDP of all the Least
Developed Countries and their 600million people27
. Of course, income inequalities between
countries (largely between developed and developing countries which continue to
increase28
) account for the bulk of global income inequality29
yet gross inequality is also
unmistakable within countries, which is true even for the world's richest as the OECD has
demonstrated that the gap between rich and poor in OECD states has been continually
growing over the past three decades and now stands at an all-time high30
with wealth
becoming concentrated amongst the top 1 percent and even within the top 0.1%31
.
Of course poverty and economic inequality don't appear as rights in ICESCR or other human
rights documents, however their detrimental effects on the fulfilment of socioeconomic
rights have been widely recognised and they therefore point towards the negative effects
which neoliberal globalisation has had upon the realisation of economic and social human
rights. Indeed, the UN General Assembly, in its Resolution on 'Globalisation and its impact
on the full enjoyment of all human rights' emphasised the fact that the 'existence of
widespread extreme poverty inhibits the full realization and effective enjoyment of human
rights' and noted its deep concern at ' the widening gap between the developed and the
developing countries, and within countries, which has contributed to, inter alia, deepening
23
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.
24
Ibid
25
Salomon, Supra n.1 p.2139.
26
Ibid . The richest 10 per cent own 85 per cent of global household wealth while the bottom half collectively
owns around 1 per cent.
27
UNDP, Human Development Report 1999 (New York: UNDP, 1999) p.3.
28
UNDP, supra n.23 p.36-37.
29
Ibid p.38.
30
Organisation for Economic Co-Ordination and Development (OECD) Divided We Stand: Why Inequality keeps
Rising (OECD, 2011) p.22. The OECD found that the ratio of the average income of the richest ten percent to
the poorest ten percent across OECD states was 9:1.
31
Ibid p.38.

10
poverty and has adversely affected the full enjoyment of all human rights, in particular in
developing countries'32
.
CESCR has made it abundantly clear that poverty is a human rights issue. Noting that
poverty can be broadly understood as a lack of basic capabilities to live in dignity33
CESCR
points out that it has a particular effect on the rights to work, an adequate standard of
living, housing, food, health and education34
. It further notes that poverty signifies 'massive
and systemic breaches' of the UDHR, ICESCR and various other human rights instruments35
.
Regarding inequality, Thomas rightly points out that 'inequality clearly affects the relative
ability to enjoy social and economic rights'36
while it should also be noted that the gross
inequality that is widespread under current economic structures is at odds with the right to
development as Article 8 DRD obliges states to ensure 'equality of opportunity for all in their
access to basic resources, education, health services, food, housing, employment and the
fair distribution of income' leading Sengupta to conclude that development must lead to a
'fair and equitable distribution of benefit' which improves the general well-being of all
people within a state rather than certain economic groups37
.
Having identified that poverty and inequality are widespread and that they constitute
human rights violations in breach of ICESCR and DRD, it shall now be sought to demonstrate
that these are not merely unavoidable, natural results which have occurred by chance.
Rather, it appears that such violations of economic and social rights are largely a product of
structural causes due to the economic order imposed under neoliberal globalisation.
Indeed, that the structures of the global economic system generate this poverty and
inequality has been explicitly recognised. In relation to poverty, CESCR has drawn attention
to the 'structural obstacles confronting developing States’ anti-poverty strategies' which lie
beyond their control in the 'contemporary international order'38
. Similarly, the UN has
32
UNGA Res. 67/165 (20 December 2012) UN Doc. A/RES/67/165, p.3. The resolution was adopted by 133
votes to 54 with 2 abstentions.
33
CESCR, supra n.15, para. 7.
34
Ibid para. 1.
35
Ibid para. 4.
36
Caroline Thomas, 'International Financial Institutions and Social and Economic Rights: An Exploration', in
Tony Evans (ed.), Human Rights Fifty Years On: A Reappraisal (Manchester: Manchester University Press, 1998)
p. 181.
37
Arjun Sengupta, 'The Human Right to Development' in Andreassen and Marks, Supra n.16 p.11.
38
CESCR, Supra n.17 p. 21.

11
noted that inequality is a by-product of globalisation given that its benefits are not evenly
shared39
while the while the World Commission on the Social Dimension of Globalisation
candidly states that 'globalisation is generating unbalanced outcomes, both between and
within countries. Wealth is being created, but too many countries and people are not
sharing in its benefits'40
. Indeed, since neoliberalism was rolled out in the late 1970s and
early 1980s (as will be discussed below) the trend has been towards growing inequality41
so
much so that Harvey deems that 'social inequality is such a persistent feature of
neoliberalisation as to be regarded as structural to the whole project'42
.
The global economic crisis which provides the contemporary backdrop to this discussion
provides an illuminating demonstration of the fact that widespread violations of
socioeconomic stem largely from structural causes associated with neoliberal economic
globalisation. It would be difficult not to be aware of the devastating effects of the
economic crisis itself and the massively exacerbating impact of drastic austerity measures
which have been proposed as 'solutions' to the crisis by governments, international
financial institutions and international organisations. The crisis itself has had devastating
effects around the world, particularly on the poor and marginalised and has decimated
socioeconomic rights, including the right to an adequate standard of living and the rights to
health, housing, food and education43
. Furthermore, inequality has grown throughout the
crisis and has significantly picked up pace44
, demonstrating that its costs have not been
evenly spread with those at the bottom suffering most. Meanwhile, the effects of austerity
measures have been a veritable disaster in terms of socioeconomic rights45
with austerity
39
UNGA, Supra n.32 p.4. The same point is also raised in UNGA, 'Preliminary Report of the Secretary-General
on Globalisation and Its Impact on the Full Enjoyment of All Human Rights' (31 August 2000) UN Doc. A/55/342
para. 4 and 46.
40
World Commission on the Social Dimension of Globalization, supra, n.20 p.x.
41
Salomon, supra n.1 p.2139.
42
David Harvey, A Brief History of Neoliberalism, (Oxford: Oxford University Press, 2005) p. 16.
43
See generally Centre for Economic and Social Rights (CESR), 'Human Rights and the Global Economic Crisis:
Consequences, Causes and Responses' (CESR, 2009).
44
OECD, 'Crisis squeezes income and puts pressure on inequality and poverty' (OECD, 2013) Available at
<http://www.oecd.org/els/soc/OECD2013-Inequality-and-Poverty-8p.pdf> Accessed 25 August 2013.
45
For example in Greece, spending on health has been cut by 40% while there has been a 200% rise in HIV
cases; youth unemployment hovers around 50% ; there has been a spike in homelessness of around a quarter
and there has been a 60% rise in suicides. Jon Henley, 'Recessions can hurt but austerity kills' The Guardian (15
May 2013); Meanwhile, in the UK the right to food is coming under attack due to austerity measures as
demonstrated by 'the explosion in food poverty and the use of food banks' which has been deemed a
'national disgrace' which 'undermines the UK’s commitment to ensuring that all its citizens have access to food

12
becoming a word for human rights retrogression46
. Taking the example of Ireland, the
Centre for Economic and Social Rights (CESR) has detailed how the recession and the
government's austerity measures has 'markedly undermined the rights to education, health,
housing, work and an adequate standard of living. Poverty levels are rising fast, just as
Ireland’s already struggling health and education sectors are being stripped of their
resources'47
. Furthermore, in addition to its effects on socioeconomic rights there is a
growing consensus that austerity measures are also worsening the prospects for an
economic recovery48
.
Indeed, whilst this is not the place to begin a discussion on the precise causes of the
crisis49
,the disastrous effects which the global economic downturn has had upon the
realisation of economic and social rights can also be largely lain at the door of neoliberal
globalisation. Joseph Stiglitz agrees, locating the underlying causes within "market
fundamentalism"50
, which is essentially a synonym for neoliberalism, while the UN
Conference on Trade and Development has stated that the crisis is proof of the fact that
'market fundamentalist laissez-faire of the last 20 years has dramatically failed the test'51
.
Austerity measures have of course resulted from such failings but can also be deemed as
failures of neoliberalism in their own regard as they are essentially a method of seeking to
remedy a neoliberal problem with more neoliberal policies52
, with disastrous results in
terms of economic and social rights as detailed above.
– one of the most basic of all human rights'. Niall Cooper and Sarah Dumbleton, Walking the Breadline: The
scandal of food poverty in 21st-century Britain (Church Action on Poverty and Oxfam, 2013) p.3.
46
Statement by Alfred de Zayas, Independent Expert on the promotion of a democratic and equitable
international order Social Forum - Panel on Democratic Governance (1 October 2012) Available at
<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12619&LangID=E>Accessed 20
August 2013.
47
CESR, 'Mauled by the Celtic Tiger: Human rights in Ireland’s economic meltdown', Rights in Crisis Briefing
Paper, (February 2012), p.4.
48
UN Economic and Social Council (UNECOSOC), 'Economic situation in the Economic Commission for Europe
region: Europe, North America and the Commonwealth of Independent States in 2012-2013', (8 April 2013) UN
Doc.E/2013/16 p.1-2 where it stated that that austerity in a depressed economy is largely self-defeating.
49
See CESR supra n. 43 p.1-2 which expertly summarises the causes of the crisis, highlighting deregulation, a
key tenet of neoliberal policy, as a major reason for the initial financial crisis which spilled into the real
economy and whose effects spread throughout the global economy given the interconnectedness of the
economies of all states.
50
Joseph Stiglitz, 'Wall Street's Toxic Message', Vanity Fair (July 2009) cited in CESR, supra n.43 p.4.
51
UNCTAD, The Global Economic Crisis: Systemic Failures and Multilateral Remedies (Geneva and New York:
UN, 2009) p. iii.
52
Austerity measures of reducing social spending is a hallmark of neoliberal economic policy as will be
discussed below.

13
One is therefore left to conclude that, given the structural causes of poverty and inequality
as well as the economic crisis and its socioeconomic effects, these human rights violations
are inextricably linked to neoliberal globalisation as 'the globalisation we have witnessed
during the past quarter century is a process of expanding power by dominant actors in the
global economy, bringing vastly increased fortunes to some, causing growing inequalities
between and within nations and causing outright impoverishment for the most
vulnerable'53
. In light of this, it is apt to note that the UN Independent Expert on the
promotion of a democratic and equitable international order has asserted that 'with regard
to a more equitable international order, the economic dynamics that make the rich richer
and the poor poorer must be changed'54
which suggests that in addition to the breaching of
their individual obligations by states regarding the socio-economic rights of their citizens,
the international community is also failing to fulfil its obligation of international cooperation
in creating a social and international order in which human rights can be fully realised by
maintaining the current structures of neoliberal economic globalisation.
Given the widespread violations of socioeconomic rights which can be largely viewed as a
consequence of neoliberal globalisation, one can conclude that economic and social rights
are not being realised under this framework and this certainly hints at there being an
elephant in the room. However, this article will seek to go beyond showing that economic
and social rights are not being fully realised under the structures of neoliberal economic
globalisation by showing that they cannot be fully realised under such conditions, thereby
showing that there does exist an elephant in the room rather than merely hinting at its
existence. In order to do so, the next section will examine the true meaning, nature and
contents of neoliberal globalisation through which it will be sought to show how it is that
the above human rights violations have come about. As such, it will be shown that these
violations of socioeconomic rights are the inevitable manifestations of a fundamental
incompatibility between neoliberal globalisation and the realisation of economic and social
rights.
53
Asbjørn Eide, 'Human Rights-Based Development in the Age of Economic Globalisation: Background and
Prospects' in in Andreassen and Marks, Supra n.16 p.220.
54
UN Human Rights Council, 'Report of the Independent Expert on the promotion of a democratic and
equitable international order, Alfred Maurice de Zayas' (3 August 2012) A/HRC/21/45.

14
4. The Fundamentals of Neoliberal Globalisation and Its Conflict
With Economic And Social Rights
A) Neoliberal Globalisation: What is it?
i) Current Deficiencies in the Literature
So far, this discussion has taken for granted that the phenomenon of economic globalisation
at work today is underpinned by the politico-economic ideology of neoliberalism. That
globalisation today is best understood as neoliberal globalisation is a truism, yet this would
not be abundantly clear from a reading of the current human rights literature dealing with
this issue. Rather than exploring the nature, contents and political and economic forces
which shape globalisation55
, it has rather been presented as a natural, apolitical process; as
if this is the only possible form of globalisation and that the problems in relation to
violations of socioeconomic rights are simply due to anomalistic deviations from the natural
course of globalisation.
An example of this is found in the work of McCorquodale and Fairbrother who, despite
going on to criticise many of its consequences, merely describe globalisation as leading to a
more interdependent world where 'political, economic, social and cultural relationships are
not restricted to territorial boundaries'56
. Even after narrowing the focus to economic
globalisation, they limit their analysis to describing that the playing field of the international
economy has been widened due to diminishing dependence upon nation states57
. Similarly,
the UN's analysis of globalisation often fails to go much deeper and continually relies upon
the vague mantra that globalisation offers both opportunities and dangers58
. O'Connell
55
Tony Evans, The Politics of Human Rights: A Global Perspective, (London: Pluto, 2001). Evans states that
lawyers and academics seldom analyse 'the social, political and economic context of violations' (p.50) while
questions regarding the legitimacy of the current world order in terms of human rights are seldom
raised(p.49).
56
Robert McCorquodale with Richard Fairbrother, 'Globalization and Human Rights', (1999) 21 Human Rights
Quarterly 735 at 735-736.
57
Ibid at 737.
58
See for example, UNGA supra, n.39 UN Doc. A/55/342 para. 5 where it limits its definition to stating that
'globalization is multidimensional…and has certain distinctive features, including, although not limited to,
advances in new technology, in particular information and communications technology, cheaper and quicker

15
correctly berates this 'loose' approach for its lack of interrogation of the nature and causes
of globalisation which leads commentators to adopt the neoliberal orthodoxy on human
rights5960
, thus producing 'unsatisfactory normative conclusions and policy prescriptions'61
.
Indeed, as Chomsky states, viewed neutrally, globalisation merely means international
integration, which almost everyone is in favour of, but advocates of neoliberalism have
appropriated the term 'globalisation' to describe their specific view of economic
integration62
. The point here, as also made elsewhere by Falk63
, is that there is not merely
one single form that economic globalisation can take and thus it is not globalisation per se
which should be at issue, but rather the form which it takes. In order to truly scrutinise this,
one must interrogate the current form of globalisation and look at its exact contents and its
political and economic influences. Without doing so, one divorces human rights law from its
economic and political contexts which 'obfuscates the structural roots'64
of violations of
economic and social rights such that advocating their protection and promotion is rendered
an exercise in futility. In this circumstance 'human rights activism may be reduced to uphill
battles to defend minimal protections'65
as it is left to deal with the symptoms of neoliberal
transport, trade liberalization, the increase in financial flows and the growth in the size and power of
corporations'. A similar approach can also be found in Siddiq Osmani, 'Globalization and the Human Rights
Approach to Development' in Andreassen and Marks, supra n.16, p.254 where the author merely states that
nothing is deterministic about the impacts of globalisation as it poses both constraints and opportunities.
59
Paul O'Connell, 'On Reconciling Irreconcilables: Neo-liberal Globalisation and Human Rights' (2007) 7 Human
Rights Law Review 483 at 485-486.
60
See Howard-Hassmann's reply to O'Connell's article (Ibid) and the latter's rejoinder for a glaring
juxtaposition of a commentator who fails to sufficiently interrogate globalisation and one who succeeds in
doing so. O'Connell had cited Howard-Hassmann as a prime example of the 'loose' interrogation of
globalisation yet even in spite of his valid arguments, he notes that she committed the same errors in her reply
by strictly adhering to the concept of globalisation as a neutral phenomenon removed from politics, thus
showing how entrenched this flawed analysis has become: Rhoda E. Howard-Hassmann, 'The Second Great
Transformation: Human Rights Leapfrogging in the Era of Globalization,(2005) 27 Human Rights Quarterly 1;
Rhoda E. Howard Hassmann, 'Reply to Paul O'Connell's Article on Neo-liberal Globalisation and Human
Rights'(2009) 9 Human Rights Law Review 127 and Paul O'Connell, 'Not Seeing the Forest for the Trees: A Reply
to Rhoda Howard-Hassmann'(2009) 9 Human Rights Law Review 135.
61
O'Connell, supra, n.59 p.486. An example of this is the fact that some commentators turn to the main agents
of neoliberal globalisation such as the IMF or World Bank (whose roles will be briefly discussed below) in
seeking solutions for improving the realisation of socioeconomic rights.
62
Maria Ahmed, Interview with Noam Chomsky, Global Agenda (January 2006) Available at
<http://www.chomsky.info/interviews/2006----.htm> Accessed 20 August 2013.
63
Richard Falk, 'Interpreting the Interactions of Global Markets and Human Rights' in Alison Brysk (ed.)
Globalization and Human Rights (Berkeley: University of California Press, 2002) p.61.
64
Evans, supra, n.55 p.55.
65
Radhika Balakrishnan, Diane Elson and Raj Patel, Rethinking Macroeconomic Strategies from a Human Rights
Perspective (Marymount Manhattan College, 2009) Available at <http://www.ushrnetwork.org/resources-
media/rethinking-macro-economic-strategies-human-rights-perspective> Accessed 24 August 2013.

16
globalisation's fundamental conflicts with economic and social rights rather than being able
to target the foundational causes of the problems at their source.
In opposition to this oft-presented neutral version of globalisation, it is submitted here that
the problems that we see today in terms of the widespread violations of socio-economic
rights are not mere anomalies of a natural phenomenon, but are the inevitable
consequences of a particular form of economic globalisation; one driven by neoliberalism.
By examining the fundamental characteristics of neoliberal globalisation and demonstrating
their direct conflict with human rights, it will be shown that there is indeed an elephant in
the room; the two are incompatible and thus socioeconomic rights under ICESCR and
associated documents simply cannot be fully realised within the current framework of
economic globalisation. This necessarily requires that we begin by firstly unpacking the
meaning of 'neoliberal globalisation', whilst avoiding the deficiencies apparent in much of
the literature.
ii) Unpacking the Meaning and Contents of Neoliberal Globalisation
The frequent descriptions of economic globalisation as consisting of a more interdependent
world due to increasingly interconnected economies is not wrong of course and serves as a
simple starting point, yet it clearly fails to go far enough in properly analysing the currently
dominant form of globalisation. Fundamental to overcoming this is a recognition that the
economic globalisation at work today is underpinned by neoliberalism as recognised, for
example, by Dine who states that 'the 'systemic forces' driving globalisation…are thus widely
seen as the economics underlying capitalism and in particular the so-called 'Washington
consensus' of neo-liberalism'66
, as well as Thomas who concurs that 'the restructuring of the
global economy through the globalization process has been driven and supported…by a
neoliberal ideology'67
.
Following on from this, there is a necessity to define what is meant by neoliberalism
especially given that it has become a buzzword which is often mentioned but is frequently
not understood. A brief overview of the history of how neoliberalism has come to
66
Janet Dine, Companies, International Trade and Human Rights (Cambridge: Cambridge University Press,
2005) p.9.
67
Thomas, supra, n.36 p. 162.

17
characterise globalisation will also be required to gain a fuller contextualised
understanding of its nature and contents. In light of the importance of grasping a concrete
understanding of neoliberalism, Harvey's excellent definition deserves quotation at length:
'Neoliberalism is in the first instance a theory of political economic practices that proposes
that human well-being can be best advanced by liberating individual entrepreneurial
freedoms and skills within an institutional framework characterized by strong private
property rights, free markets and free trade. The role of the state is to create and preserve
an institutional framework appropriate to such practices. The state has to guarantee…the
proper functioning of markets. Furthermore, if markets do not exist (in areas such as land,
water, education, healthcare, social security, or environmental pollution) then they must be
created, by state action if necessary. But beyond these tasks the state must not venture'68
.
Steger summarises the quintessential policies which the theory of neoliberalism promotes
as including privatisation of public enterprises, deregulation of the economy (in essence
opening up the domestic economy to private foreign investment and ownership),
liberalisation of trade and industry, massive tax cuts, monetarist measures to keep inflation
in check even at the risk of increasing unemployment, strict control on labour, the
reduction of public expenditure (particularly social spending), the down-sizing of
government, the expansion of international markets, and the removal of controls on global
financial flows69
. Indeed, the theory of neoliberalism with these associated measures has,
'become hegemonic as a mode of discourse'70
which has 'pervasive effects on ways of
thought to the point where it has become incorporated into the common-sense way many
of us interpret, live in, and understand the world.'71
Yet, it is axiomatic that hegemonic discourses do not merely spring up by chance and thus
the presentation of the currently dominant form of globalisation as a natural, apolitical
occurrence is deeply flawed. Rather, the neoliberalism which underpins economic
globalisation must be seen as a 'political project to re-establish the conditions for capital
accumulation and to restore the power of economic elites'72
. This point is echoed by
68
Evans, supra, n.55 p.2.
69
Manfred B. Steger, Globalization: A Very Short Introduction (Oxford: Oxford University Press, 2003) p.41.
70
Harvey, supra, n.42 p.3.
71
Ibid.
72
Ibid, p.19 (emphasis in the original).

18
O'Connell who points out that this project is consciously undertaken in order to 'privilege
private economic power over public power ; in the interests of global and local economic
elites' by creating a global economy subservient to the interests of transnational capital73
.
Therefore, rather than occurring naturally, neoliberal globalisation has come about through
deliberate planning, human action and political choices in the furtherance of these
particular aims74
, with the result being the concentration of power and wealth in elite
groups around the world which has especially benefitted the financial interests within each
country75
.
In terms of the process of 'neoliberalisation' of the global economy, neoliberalism made its
major breakthrough with the election of Margaret Thatcher as Prime Minister of the United
Kingdom in 1979 and the election of Ronald Reagan as President of the United States in
1980 as both embraced the ideas of neoliberalism76
. This represented a monumental break
with the 'embedded liberalism' which had been the basis of the economies of most
countries after World War II. This political-economic organisation which was based on the
Keynesian belief in the need for an interventionist state with a strong role in regulating the
economy and which imposed constraints on the market through introducing welfare
systems amongst various other measures, had represented a compromise between capital,
labour and the state77
.
With regards to truly globalising neoliberalism, the role of the international financial
institutions (IFI) in the form of the International Monetary Fund (IMF) and the World Bank
has been key. In light of the foreign debt crisis beginning with Mexico defaulting on its loan
73
O'Connell, supra, n.59
74
This should not be misunderstood as implying some shared 'conspiracy' on the exact form of globalisation by
one specific group of a certain number of elites. This is pointed out as such caricature is often presented in an
attempt to undermine valid criticism of neoliberalism. Of course, the situation is far more complex than that.
Yet different elites working in different sectors in different countries have and continue to share a certain
number of interests that recognise the advantages to be derived from neoliberalism, as noted by Harvey supra
n.42 p. 36. Similarly, the neoliberal project has come about through advocacy by various elite groups in a
number of different forums over a period of time. For an analysis of this see: David Miller, 'How Neoliberalism
Got Where It Is: Elite Planning, Corporate Lobbying and the Release of the Free Market' in Ken Birch and Vlad
Mykhenko, The Rise and Fall of Neoliberalism: the Collapse of an Economic Order? (London: Zed Books, 2010) .
75
Alfredo Saad-Filho and Deborah Johnson (eds.) Neoliberalism: A Critical Reader (London: Pluto Press, 2005).
Indeed, that the elites have benefitted most through neoliberal globalisation is clearly borne out through the
growing inequalities since its inception as detailed above.
76
See Harvey, supra n.42 for perhaps the most comprehensive account of how neoliberalism emerged and
spread.
77
Eide, supra n.53 p.225.

19
repayments in 1982, developing countries sought loans from these institutions in order to
keep up external debt repayments, but such loans were made conditional upon the
imposition of structural adjustment programmes (SAPs). These SAPs gave the IFIs power to
essentially prescribe economic policies for developing countries and they reflected the
neoliberal beliefs of the IFIs in the ability of the unregulated free market to maximise human
welfare. The neoliberal policies prescribed under these SAPs were tailored to serve
corporate interests and foreign investors and typically included privatisation, reduced
protection of domestic industries, deregulation in relation to investment, currency
devaluation, increased interest rates, reduction or elimination of labour rights and an
elimination of welfare policies78
. Developing governments were also obliged to drastically
reduce spending, liberalise finance and focus on export-orientated growth79
. Furthermore,
the most recently established IFI, the World Trade Organisation (WTO) has also spread
neoliberalism by applying neoliberal policy to richer countries as well as developing
countries in the form of international free trade rules which unties capital from the
societies in which it operates80
.
B) Fundamental Conflicts between Neoliberal Globalisation and Economic
and Social Rights
We have now established a thorough understanding of economic globalisation which
overcomes the habitual deficiencies of human rights literature on globalisation by
examining its political and economic influences and thus locating its key driving force in the
politico-economic ideology of neoliberalism. Having examined the meaning, nature,
contents and origins of neoliberal globalisation, the dissertation now seeks to expose the
elephant in the room by analysing how the key features of neoliberal globalisation
fundamentally conflict with the essentials of human rights law in relation to economic and
social rights. It will be argued that neoliberal globalisation does not view economic and
social rights as true human rights; its emphasis on the free market economy dominated by
private actors and solely motivated by profit and economic growth is incongruous with the
progressive realisation of human rights while the role assigned to the neoliberal state
78
Ibid p.232.
79
Ibid.
80
O'Connell, supra n.59, p.492. The role of the WTO will be further analysed in Chapter 5 below.

20
undermines the state's ability to fulfil its human rights obligations. It is thus submitted that
socioeconomic rights simply cannot be realised under neoliberal globalisation as the
incompatibilities here are such that this form of economic globalisation has led to a
'universalising trend of undermining the status' of these human rights81
.
i) A Clash of Ideologies and Positions on Human Rights
Neoliberalism is rooted in the political philosophy of classical liberalism and thus is focused
upon individualism. Indeed, it views freedom in terms of the individual and private power
with a consequent rejection of the public sphere and its associated notions of collectivity
and society82
. This has an important impact in the domain of rights as neoliberalism favours
rights of individuals (which of course includes corporations which are deemed to be legal
persons), specifically private property rights and, most importantly for present purposes, in
terms of its approach to human rights it seeks to prioritise civil and political rights while
marginalising economic and social rights83
. As such, Evans argues that 'for neoliberals,
economic, social and cultural claims may be legitimate aspirations but they can never be
rights'84
. This point is reiterated by Chomsky who adduces evidence that socioeconomic
rights are viewed as being on a par with 'a letter to Santa'85
while Kinley similarly makes
anecdotal reference to this approach86
. This promotion of civil and political rights and the
belief that these are largely negative rights requiring non-interference by the State so that
individuals can freely participate in the economic process, serves the purpose of rendering
invisible the social, political and economic structures of neoliberal globalisation which cause
many human rights violations in the economic and social sphere87
.
This approach is in fundamental contradiction to human rights law as noted by O'Connell
who opines that 'the normative foundations of neo-liberalism are in complete contrast with
81
Thomas, supra n.36, p.162.
82
Ibid, p.162-163.
83
Ibid p.163-164.
84
Evans, supra n.55, p.60.
85
Michael Shank, 'Social Justice is the Will of the People: An Interview with Noam Chomsky' 3 Seattle Journal
of Social Justice 471, at 472. Chomsky attributes this phrase to a statement made by Jeane Kirkpatrick when
she was United States Ambassador to the UN.
86
See Kinley, supra n.11, p.xi where he recalls a meeting with a senior economist for the World Bank who
deemed economic and social welfare not to constitute the proper concern of human rights, a line of argument
which Kinley says is not uncommon.
87
Evans, supra n.55 p.60 and 62.

21
those underpinning the idea of fundamental human rights'88
. Whilst not delving in to a
thorough examination of the nature of human rights, it is obvious that it certainly extends
beyond the narrow individualism under the neoliberal approach and places greater
emphasis upon society, solidarity and co-operation as demonstrated by the Preamble of
ICESCR with its emphasis on 'the human family' and the duties owed by individuals not only
to themselves and their own interests but also to their fellow humans and their community.
It is axiomatic that human rights law also regards economic and social rights as being on a
par with civil and political rights as ICESCR states that 'the ideal of free human beings
enjoying freedom from fear and want can only be achieved if conditions are created
whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and
political rights' while the Vienna Declaration confirmed that all human rights are 'universal,
indivisible and interdependent and interrelated'89
. Yet despite this formal recognition of
parity, a glaring chasm has clearly persisted between such rhetorical acknowledgment and
its practical implementation during the period of neoliberal globalisation.
One is therefore implored to question how socio-economic rights can be achieved under a
neoliberal framework which does not even view these as constituting true human rights on
a par with civil and political rights. Surely there is an elephant in the room here in that a
fundamental incompatibility exists between the approaches to human rights under
neoliberalism and human rights law which presents a permanent obstacle to the progressive
realisation of economic and social rights.
ii) A Clash of Priorities: Profit or Human Rights?
Ultimately, under neoliberal globalisation the free market economy consisting of competing
private actors, focuses solely on economic growth and the accumulation of profit and simply
does not take into consideration the need to secure the economic and social rights of
individuals. Indeed, wealth creation has become the 'sine qua non of globalisation'90
as the
increasingly transnational economic activities in the global economy are motivated by a
88
O'Connell, supra n.59, p.496.
89
UN World Conference on Human Rights, Vienna Declaration and Programme of Action (1993), UN
Doc A/CONF 157/23 Pt I, art 5.
90
Wayne Ellwood, The No-Nonsense Guide to Globalization, (London: Verso, 2001) p.10.

22
'search for profit rather than for improvement of living conditions for those who need it
most'91
. While Kinley speaks of the fact that the economy should be the means and human
rights the ends92
, it appears that under the neoliberal model of globalisation the economic
imperatives of growth and increased profits have become ends in themselves.
Neoliberalism posits that 'global welfare is maximised by economic growth, and the latter is
best achieved through economic and political liberalisation' and consequently 'the fulfilment
of social and economic rights is most likely therefore within the context of the free market,
as the wealth generated will trickle down through society and ultimately all will benefit'93
.
Under such a system, economic and social human rights are far removed from being the
main focus of economic policy. Rather, it is merely assumed that they will automatically
result from the operation of the free market and its pursuit of increasing private profit
through economic growth.
As such, rather than making the progressive realisation of economic and social rights the
primary goal to which economic policy should be directed, the neoliberalism assumes that
the 'unfettered pursuit of self-interest though self-regulating markets would ensure
economic prosperity for all and the most efficient allocation of resources'94
. This approach is
contrary to the requirements of human rights law which places the dignity of the individual
at the centre of discussions on the global economy and requires that the goal of securing
individual welfare through socioeconomic rights should be the 'presupposition to all else'95
.
This prioritisation of socioeconomic rights is indicated by the pronouncements from CESCR96
and the UN Secretary General that securing respect for socioeconomic rights should be the
raison d'être of globalisation, with the latter stating that 'the principles and standards of
human rights should be adopted as an indispensable framework for globalisation…This must
91
Asbjørn Eide, 'Obstacles and Goals to be Pursued', in Eide, Kraus and Rosas, supra n.8 p.383.
92
Kinley, supra n.11, p. 1.
93
Thomas, supra n.36 p. 164.
94
Stiglitz, supra n.48.
95
Kinley, supra n.11 p.31.
96
CESCR, 'Statement to the Third Ministerial Conference of the World Trade organisation' (26th November
1999) UN Doc. E/CN.12/1999/9, para. 5. where the Committee declared that 'human rights norms must shape
the process of international economic policy formulation'.

23
be the strategy of governance at all levels - to secure respect of all human rights for
everyone'97
'.
This disregard for economic and social rights under economic globalisation is reflective of
the lack of ethical underpinning of neoliberalism which, according to Pollis, 'is devoid of any
normative principle of justice and humanity' as it is purely market driven98
. This can be
illustrated by comparing the neoliberal aims to those which characterised the pre-neoliberal
economic era of 'embedded liberalism' . During this period of what might also be termed
'socially conscious liberalism'99
, economic policy was not solely led by the free market as
constraints were placed on its operation by the state with the combined aims of securing
full employment, economic growth and securing the welfare of citizens100
. Whilst the
policies under embedded liberalism aimed at a more equal distribution101
of benefits,
'efficiency rather than ethics has been the focus of concern'102
of economic policy under
neoliberal globalisation by aiming solely for economic growth.
Indeed, the policies contained within structural adjustment programmes (discussed
above), which were key in globalising neoliberal policy, were motivated purely by economic
concerns with human rights and economic and social rights in particular being 'non-
factors'103
. As part of the IFI prescriptions requiring that governments must reduce spending
and focus on increasing economic growth through exports and attracting private
investment, spending was to be diverted away from social programmes in education, health,
housing amongst others104
despite the dependence of the poor and vulnerable on such
schemes. For example, as part of its SAP, Zimbabwe was forced to terminate free access to
primary education105
while as part of Brazil's SAP, spending on subsidised rations of beans
rice and sugar, upon which 8 million depended was cut by 50 per cent106
. The corresponding
negative effects on the enjoyment of the right to education and the food in these examples
97
UNGA, supra n.39 UN Doc. A/55/342 para. 50.
98
Admantia Pollis, 'Human Rights and Globalisation' (2004) 3 Journal of Human Rights 343 p.343.
99
100
Harvey, supra n.42, p.10.
101
Eide, supra n.53 p.226
102
Balakrishnan, Elson and Patel, supra n.65,p.1
103
104
Evans, supra n.55, p.48.
105
McCorquodale and Fairbrother, Supra n.56 p.746.
106
Ellwood, supra n.90 p.103.

24
are obvious and it is therefore no surprise that Abouharb and Cingranelli concluded, after
detailed studies of the effects of SAPS, that the 'implementation of World Bank and IMF
structural adjustment agreements reduces government respect for the economic and social
welfare of their citizens'.107
As evidenced by the policies under SAPs, neoliberalism considers that economic growth is to
be the raison d'être of economic policy and that the wealth created by the operation of
private corporations should trickle down by creating employment and raising income.
Stemming from this, it is assumed that socioeconomic rights will be enjoyed by all. In order
to secure the necessary growth, states must open up their economies to domestic and
foreign private investment as well as to foreign trade. However, while such changes have
brought about economic growth108
, the belief in wealth trickling down and improving
socioeconomic human rights has proved to be utter folly. This is perfectly demonstrated by
the undeniable prevalence of poverty and inequality (as detailed in Chapter 3) which is
illustrative of the fact that the wealth created by growth is being distributed in a grossly
uneven fashion. Indeed, Stiglitz has candidly stated that the 'evidence against trickle-down
economics is now overwhelming'109
while Falk notes that the 'facile assumptions of an
“invisible hand” and “trickle down” benefits of economic growth, are ideologically removed
from the existential reality of human suffering'110
leading him to comment that 'profit-
making modes of enterprise override more compassionate approaches to economic
activity'111
.
The idea of wealth trickling down has clearly failed and It is not difficult to see why
economic growth has not been translated into benefits in terms of the socio-economic
rights of individuals as, especially given the transnational form of most economic activity,
those involved in driving growth through investment and trade are motivated purely by self-
interested financial concerns and concentrate on maximising profit rather than on social
welfare issues and human rights. This can be demonstrated by briefly examining the case of
107
M. Rodwan Abouharb and David Cingranelli, Human Rights and Structural Adjustment (Cambridge:
Cambridge University Press, 2007) p.147.
108
See Kinley, supra n.11 p.14.
109
Joseph E. Stiglitz, 'Is there a Post-Washington Consensus?' in Narcis Serra and Joseph E. Stiglitz (eds), The
Washington Consensus Reconsidered: Towards a New Global Governance (Oxford: Oxford University Press,
2008) p.41 as cited in Salomon, supra n.1 p.2146.
110
Falk, supra n.63.p.64.
111
Ibid.

25
transnational corporations (TNCs). Due to the opening of markets, TNCs have become the
driving forces in the global economy and the key drivers of economic growth given that they
play the dominant role in foreign trade and investment. However, like all corporations, their
primary duty is to their shareholders, for whom they must maximise profits regardless of
the social consequences112
and potential conflicts with the human rights of individuals.
Indeed, taking the example of foreign investment by TNCs, it is clear that decisions here are
ultimately based upon financial concerns so that the tendency is that investment will flow
into the activities which best suit these interests. Thus investment tends to be of poor
quality in terms of human rights improvement as it is often geared towards short term profit
making rather than in long-term infrastructure building113
. Such examples include
investment in export processing zones (EPZ)114
, the fact that the majority of investment in
Africa goes towards extractive industries115
as well as the recent growth in the phenomenon
of land-grabbing116
. The poor potential of investment in terms of benefitting socioeconomic
rights is further undermined by the fact that profits are largely repatriated (as enabled by
the neoliberal insistence on the free movement of capital) while tax receipts are often low
due to tax concessions offered by governments desperate for investment117
. It is thus clear
that while globalisation may bring about economic growth through TNCs, this is often 'at a
cost to the economic rights of many within the state'118
.
Moreover, this egregious notion that economic growth through private pursuit of profit will
benefit all represents a purely economic approach to development which fundamentally
conflicts with the human right to development and the corresponding human rights
approach to development as expressed in DRD. The latter places the individual at the centre
of the development process as Article 2(1) DRD states that 'the human person is the central
subject of development' which, according to Sen, requires that development be focused
112
Christian Aid, Master or Servant? (London: Christian Aid, 2002) p.37.
113
Ibid, p.39.
114
Dine, supra n.66 p.25.
115
UNCTAD, Economic Development in Africa: Rethinking the Role of Foreign Direct Investment (New York and
Geneva: UN, 2005) p.7
116
See, for example: Oxfam, Our Land, Our Lives: Time out on the global land rush (Oxfam, Oxford, 2012). The
report points out the adverse effects of investors investing in land in developing (and mostly food insecure)
countries and diverting its use away from local food production, often in favour of producing biofuels to be
used in developed countries.
117
Dine, supra n.66, p.26.
118
McCorquodale and Fairbrother, supra n.56, p.749.

26
upon enhancing the capabilities of all individuals119
. As such, while economic growth may be
necessary for development, it is by no means sufficient as the right to development is more
than this and does not view economic growth as an end in itself.120
Sen has, in fact, pointed out the adverse effects upon human development and the
enjoyment of economic and social rights by pursuing the narrow economic model. He does
so by pointing out that in India, which has been lauded for impressive growth rates in recent
years, continues to lag behind its much poorer neighbouring country, Bangladesh, on a
range of development indicators. Despite having half the per capita income of India,
Bangladesh has pulled ahead in relation to such indicators as life expectancy, child
immunisation and child mortality while he believes it is striking that while 8 per cent of
people in Bangladesh don't have access to a toilet, the figure is 50 per cent in India121
.
Indeed, combined with its palpable lack of investment in health and education, India's
overriding preoccupation with economic growth is deemed to makes no sense without
recognising that human development depends on how wealth is used and distributed122
.
Furthermore, Brazil has also attracted widespread praise in terms of its quickly emerging
economy but its development has not taken account of the fact that 'progress and growing
wealth do not automatically improve the plight of the poorest'123
. Indeed, despite having
grown its economy to become one of the richest states in GDP terms as well as introducing
various social reforms, it has been pointed out that Brazil remains among the top 10
countries in terms of income inequality which is reflected in huge inequalities in relation to
education and health, while 16million of its population live in abject poverty124
.
119
Amartya Sen, 'Development as Capability Expansion', Journal of Development Planning Vol.19. Capability
here refers to 'the various combinations of functionings' which an individual can achieve(p.44).
120
Salomon, supra n.16 p.100; Sengupta, supra n.37.p.11. As noted above, Article 8 DRD requires equality of
opportunity in access to basic resources, education, health services, food, housing, employment and the fair
distribution of income.
121
Madeleine Bunting, 'Amartya Sen: India's Dirty Fighter' The Guardian (16 July 2013).
122
Ibid.
123
Christian Aid , 'The Real Brazil: The Inequality Behind the Statistics (Executive Summary)' (Christian Aid, May
2012) Available at: http://www.christianaid.org.uk/images/real-brazil-summary.pdf. Accessed 3 September
2013. The report points out that while the social reforms have had positive effects, this merely represents
using some benefits of growth to ameliorate extreme poverty without confronting the structural causes of
inequality. It thus appears that improving the enjoyment of economic and social rights, rather than being the
focus of development, is merely an afterthought to economic growth.
124
Ibid.

27
However, despite the manifest failure of the trickle-down concept, neoliberal policy has
been unwavering in its conviction that unfettered free markets are the optimum means of
improving the socioeconomic welfare of all. Indeed, one of the main features of
neoliberalism is its emphasis upon privatisation in its belief that 'the social good will be
maximized by maximizing the reach and frequency of market transactions'125
. It thus seeks
to 'bring all human action into the domain of the market'126
by transferring public sectors
over to the private sphere and deregulating them127
. This is usually achieved through SAPs,
investment agreements, aid conditionality and trade rules such as the General Agreement
on Trade and Services governed by the WTO, and is particularly relevant in relation to
economic and social rights as all areas are to be subjected to the profit motive, including the
provision of social need128
. In essence therefore, making profit takes precedence over
fulfilling basic needs and socioeconomic rights, therefore largely preventing the realisation
of these human rights for the poor. Indeed, under neoliberalism the market is to be 'the
motor of the economy and ultimately it is the market which determines entitlement to
everything, including basic necessities such as food, education, healthcare and transport'129
.
Essentially this centrality of the free market means that the enjoyment of economic and
social rights such as the rights to an adequate standard of living, food, water, education and
healthcare are determined by an individual's ability to pay the prices set by profit-seeking
corporations for the necessary goods and services, an ability which many of the world's
population lack as exemplified by the prevalence of poverty and income inequality due to
the failure of the notion of trickling down wealth. It would not seem to be overly
contentious to submit that under such conditions, socioeconomic rights are simply not for
the poor. This system is blatantly at odds with the terms of the economic and social rights
set out in ICESCR, all of which refer to the rights of 'everyone', stemming from the
Preamble's 'recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family'. Consequently, Thomas properly observes an elephant in the
room here in that 'there is a fundamental incompatibility between economic human rights
125
Harvey, supra n.42, p.3
126
Ibid.
127
Ibid.
128
O'Connell, supra n.59, p.500.
129

28
and the elevation of the free market as the determinant of a person's economic
entitlement'130
.
Thus, under such a globalised economic system, the question must be put quite simply: how
can economic and social rights be realised when they, like all other issues, 'must be
subordinated to the imperatives of economic growth and development'131
? Surely there is
an elephant in the room here in that, in light of the preceding discussion, the answer to the
above question is, quite patently, that they cannot. It appears that through the operation of
the neoliberal model of economic globalisation based upon profit making and economic
growth by extending the reach of the deregulated market, we are seeing the workings out
of Karl Polanyi's notion that 'to allow the market mechanism to be the sole director of the
fate of human beings…would result in the demolition of society'132
. Neoliberalism's purely
economic approach prioritises profit over other concerns and plainly does not place any
focus on realising socioeconomic rights or the associated right to development. It is thus in
flagrant conflict with human rights law, which requires that individuals and especially the
poor and vulnerable must be the focus of economic policy and globalisation.
iii) A Clash of Roles: The Position of the State
In light of this conflict between the priorities of economic and social human rights and
neoliberal globalisation and the inevitable consequence that the free market has 'failed to
guarantee basic human needs or the conditions in which everyone can secure an adequate
standard of living consistent with human dignity'133
, it would appear that there is a need for
the state to intervene in order to remedy this given its human rights obligations outlined in
Chapter 2. However, this ignores the fact that it is the role assigned to the state under
neoliberalism which actually allows for the dominance of the market, a role which is
profoundly contradictory to that required under human rights law vis-à-vis economic and
social rights.
130
Ibid.
131
Evans, supra n.55 p.46.
132
As quoted in Ellwood, supra n.90, p.24-25.
133
CESR, supra n.43, p.4.

29
According to neoliberal principles, the state should not interfere in the functioning of the
free market and thus government action such as regulating business, directly providing
services on a non-market basis, high social spending and redistributing wealth is
discouraged. Rather the state should integrate into the global economy, cede to the free
market and merely seek to facilitate its operation based on the faith placed upon economic
growth as detailed in the preceding section. As a result, and as demonstrated immediately
above particularly through the discussion on privatisation, it is clear that the private sphere
is becoming more important than the public sphere as opening up economies to allow for
free trade and investment coupled with deregulation means that private capital, most often
that of transnational corporations, is the driving force of a state's economy. The power of
the state in setting economic policy and determining access to economic and social needs is
thus rolled back as control is increasingly transferred to the free market dominated by
private, often transnational actors134
, who dominate the global economy.
However, this rolling back of the state in terms of setting economic policy and providing for
social needs should not be thought of as a general reduction or weakening of the state.
Rather, there has been 'a reconfiguration rather than a repudiation of the state'135
under
neoliberal globalisation as while generally it has ceased or drastically reduced the direct
provision of services, it has greatly increased its regulatory and supervisory role in terms of
ensuring the functioning of the market136
. The irony here is palpable in that neoliberalism
requires a strong state despite preaching about the importance of it being rolling back137
. As
such, this reconfiguration is best thought of as moving towards a state which facilitates the
operation of the market and the interests of private capital in the hope of maximising
economic growth instead of being directly responsive to citizens and focusing on social
welfare concerns. In other, more direct words, the state is to be directly responsive to the
few at the top rather than the many at the bottom.
This reformulation of the role of the state is perfectly illustrated by the massive financial
bailouts of recent years which has seen massive amounts of public expenditure diverted
into saving the financial sector rather than being used to bring about the progressive
134
135
Kinley, supra n.11, p.22.
136
Ibid, p.21.
137
O'Connell, supra n.59. p.500.

30
realisation of socioeconomic rights. In fact, 'between 2008 and 2011, European countries
diverted €4.5 trillion (equivalent to 37 percent of EU economic output) from public
expenditures into rescuing their failing financial institutions'138
. The result has been that
'these levels of extra and unforeseen spending have pushed governments into debt
sustainability crises'139
which has, in turn, brought about even further tightening of social
expenditure through austerity measures with the public and especially the poor and
vulnerable paying the heaviest costs140
. Similarly, whilst the public has been subjected to a
withdrawal of the state through privatisation and other measures since the 1980s, it
appears that corporate interests have conversely been the benefactors of state intervention
as particularly exemplified by a 1995 study which showed that at least twenty companies in
the 1993 Fortune 100 simply would not have survived as independent companies, if they
had not been saved by their respective governments141
.
This role of the state under neoliberalism fundamentally conflicts with the role envisioned
under human rights law. Rather than the facilitation of the functioning of the market being
the state's central priority, it was agreed by the states of the world at the 1993 Vienna
World Conference on Human Rights that 'The promotion and protection of human rights is
the first responsibility of governments'142
which 'overrides and takes priority over other
commitments by the state'143
according to Eide. Furthermore, ICESCR is unequivocal in
setting out that the obligations in relation to economic and social rights (as set out in
Chapter 2 above) fall upon the state as Article 2(1) deems that it is 'Each State Party' which
must take steps to the maximum of its available resources in order to progressively achieve
economic and social rights by all appropriate means. As such, an active, strong state is
envisaged under human rights law rather than a state which specialises in non-interference
and which merely abdicates power to the private-run free market of the global economy.
138
Rick Rowden, 'Integrating Fiscal and Finance Issues Into a Transformative Post-2015 Development Agenda'
(CESR, 2012) p.5. Available at <http://cesr.org/article.php?id=142> Accessed 5 September 2013.
139
Ibid.
140
As detailed in Chapter 3 above. See supra n.43. for example
141
Winfried Ruigrock and Rob van Tulder, The Logic of International Restructuring (Routledge, London, 1995),
221-2. Cited in Noam Chomsky 'Market Democracy in a Neoliberal Order: Doctrines and Reality' Z Magazine
(November 1997) Available at <http://www.chomsky.info/articles/199711--.htm#en60> Accessed 5 September
2013.
142
Supra n.87, Article 1.
143
Eide, supra n.53, p.244.

31
On this point, Danilo Turk, whilst he was UN Special Rapporteur on the Realization of
Economic, Social and Cultural Rights, made it clear that 'The legal basis upon which
economic, social and cultural rights rest, essentially assumes the presence of a "strong"
State as the motor behind realizing these rights' and realised that this is not the case in most
states under neoliberal globalisation as state involvement in the economy is viewed as
suspect under this framework144
. The human rights conception thus insists that the state
should focus upon the realisation of socioeconomic rights which necessitates directing the
operation of the economy towards this objective. The human-rights orientated state must
actively regulate the economy and must strengthen the role of the public sector by setting
appropriate economic and social policy rather than being a slave to the market as in fact
Tomasevski has opined that 'the raison d'être of economic and social rights is to act as
correctives to the free market'145
.
The inability of the state operating under neoliberal prescriptions to fulfil its obligations in
relation to economic and social rights under ICESCR is easily demonstrated. Firstly, simply
allowing the market to run its course due to a belief in the 'trickle down' effects of wealth
quite clearly does not fulfil the obligations to 'take steps' to secure the protection of
economic and social rights as these must be 'deliberate, concrete and targeted as clearly as
possible towards meeting the obligations recognized in the Covenant'146
. Similarly, the duty
to use maximum available resources in progressively realising economic and social rights is
certainly not met by the state under neoliberalism. This is obvious as neoliberalism deems
that social spending should be drastically reduced and, in addition, huge amounts of
available resources are diverted from the public purse in order to aid corporate interests
rather than human rights as demonstrated most clearly by the recent government bailouts
of the financial sector discussed above.
Moreover, the issue of taxation perhaps provides the best example of how the neoliberal
state fails to meet the duty to use maximum available resources. While taxation is key to
raising revenue and maximising resources in order to achieve the realisation of
144
UNECOSOC, 'The Realization of Economic, Social and Cultural Rights: Final Report by Mr. Danilo Turk,
Special Rapporteur' (3 July 1992) UN Doc. E/CN.4/Sub.2/1992/16, para. 85.
145
CESCR, 'Background Paper submitted by Katarina Tomasevski, Special Rapporteur on the Right to Education'
(30 November 1998) UN Doc. E/C.12/1998/18 para.7. As quoted in CESR, supra n.43, p.5.
146
CESCR, supra n.3, para. 2.

32
socioeconomic rights through public expenditure, the neoliberal model deems that low
taxes are most appropriate for the functioning of the free market and maximising profit and
growth. The figures show, however, that the approach adopted by states under neoliberal
globalisation has adhered to market demands rather than the demands of human rights law.
For example, in the UK, the top statutory rate of income tax has declined from 83 per cent in
1979 to 40 per cent in 1990147
while corporation tax has been lowered from 52 per cent in
1979 to 30 per cent in 2000148
and has fallen still to a level of just 23 per cent in 2013149
.
These shortcomings of the minimalistic state in meeting its obligations under ICESCR apply
across its tripartite duties to respect, protect and fulfil economic and social rights,
particularly in relation to the latter two. The neoliberal state is largely prevented from
protecting individuals from violations of their socioeconomic rights by third parties as the
state is not to regulate market actors because this is deemed to be an interference with the
operation of the free market. Similarly, in relation to the duty to fulfil, the state is severely
restricted by neoliberalism's aversion to state action in terms of economic and social policy,
especially its involvement in the direct provision of goods and services on a non-market
basis.
In sum, under neoliberal globalisation, a number of economic policies have been promoted
which have led to states abdicating their responsibilities with regards economic and social
rights by leaving their fulfilment up to the market150
. Neoliberalism deems that the state
should not interfere with the market through economic and social policy but Thomas is
entirely apt in stating that 'the idea that basic needs can be met in, and economic and social
rights protected in, the marketplace without the resources and authority of governments is
fanciful'151
. Thus, the presence of an elephant in the room is obvious; the diminished role
assigned to the state under neoliberalism directly undermines the notion of a strong,
active, interventionist state envisioned under human rights law, and frankly, renders the
state incapable of fulfilling its obligations to progressively realise economic and social rights
for all.
147
UNECOSOC, supra n.48, para. 47.
148
Ellwood, supra n.90, p.63.
149
HMRC, 'Corporation Tax Rates' <http://www.hmrc.gov.uk/rates/corp.htm> accessed 7 September 2013.
150
CESR, supra n.43 p.4.
151

33
iv) An Elephant in the Room: A Summary of the Fundamental Conflicts
This examination of the fundamental conflicts between neoliberal globalisation and
economic and social rights has identified that there is an elephant in the room here in that
the latter simply cannot be fully realised under the framework of the former. It has been
detailed that under neoliberal globalisation, human rights are deemed to be restricted to
civil and political rights with economic and social rights being recognised only rhetorically
whilst not being seen as true human rights in practice. Furthermore, the neoliberal
approach to the economy is focused solely upon profit and economic growth whilst placing
no emphasis upon human rights and lastly, the role which is assigned to the state under
neoliberal globalisation is diametrically opposed to that envisaged under human rights law
and renders the state incapable of fulfilling its human rights obligations by devolving power
to the free market and its private actors. In light of this, the answer to the glaring question
as to how economic and social rights can possibly be secured under such circumstances
appears to be unavoidable; they simply cannot. The dissertation now moves on to consider
a concrete example of a policy of neoliberal globalisation and its impact upon economic and
social rights in practice in order to further expose the elephant in the room.
5. An Example of Neoliberal Globalisation in Practice: Free Trade and
Economic and Social Rights
Free trade represents one of the core policies advocated under neoliberal globalisation. It
has been promoted largely by the World Bank and IMF through foisting it upon developing
countries on an ad hoc basis in the form of SAPs, and is now legally entrenched within the
rules of the WTO which extends the rules of free trade to almost every country in the world.
The WTO rules152
reflect the logic of trade liberalisation: States must reduce barriers to free
152
WTO rules here refer only to those pertaining to trade liberalisation and the promotion of free trade. Other
rules such as the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) have, of
course, had hugely damaging impacts on economic and social rights, but they are in fact not measures which
promote free trade, but do quite the opposite by limiting the trade of certain items. They thus fall beyond the
scope of this section which does not aim to deal with the human rights impact of the WTO in its entirety.

34
trade in the form of tariffs on imports as well as non-tariff barriers such as quotas, export
subsidies and other government support of domestic industry. This means that states must
open up their economies to global markets and must not interfere with the operation of
free trade.
This neoliberal belief in the benefits of free trade is founded upon the standard trade theory
based on the notion of 'comparative advantage' stemming largely from the writings of Adam
Smith and David Ricardo in the late 18th and early 19th century, which suggests that free
trade will allow countries to specialise in what they do best, exporting the products in which
they have a comparative advantage, and importing those that reflect comparative
advantage elsewhere153
. From this it is assumed that free trade will have numerous benefits
for all states, spurring growth, lowering prices for consumers and resulting in the most
efficient global distribution of resources. Ultimately, in policy terms this means that states
should focus upon promoting exports in which they have a comparative advantage in order
to grow economically and to develop, and at the same they should liberalise imports by
opening up their economy to foreign goods and services.
The potential for negative effects on socioeconomic rights is evident as, conforming to
neoliberal principles, such rules mean that economic policy is geared towards making profit
through the export of goods and services by private corporations in order to spur on
economic growth rather than with the explicit and direct intention of fulfilling economic and
social rights and the right to development. Indeed, the rules of free trade place severe limits
on state action within the economy which interferes with free trade, even where this is
aimed at protecting or promoting the realisation of economic and social rights. On this point
Kinley sees a central problem in that the neoliberal notion of free trade views economic
efficiency as its 'fundamental normative principle' while human rights concerns are
relegated to being mere 'externalities'154
. He correctly notes that this approach which
merely assumes that human rights will be protected through the benefits of trade, rather
than being the primary objectives to which free trade is aimed is simply not enough155
. As
such, the negative effects of this core aspect of the neoliberal global economic system shall
153
Oxfam, Rigged Rules and Double Standards (London: Oxfam, 2002) p.135-136.
154
Kinley, supra n.11, p.43.
155
Ibid.

35
be demonstrated first examining the impact of free trade generally and its impact upon
poverty and development in developing states before specifically analysing agricultural
trade and its impact upon the right to food.
A) Free Trade, Poverty and Development
Firstly, we look at the effects which free trade has had upon poverty alleviation and the
developmental situation in developing states. It is submitted here that the purported
benefits of free trade in terms of promoting economic growth and development have simply
not materialised. Rather, trade liberalisation has benefitted developed states and global
corporations at the expense of developing states while severely hindering the ability of the
latter to fulfil their human rights obligations regarding the right to development and
economic and social rights.
As stated above, the underlying logic of trade liberalisation is that is good for growth and
from this it follows that it is good for development as well as poverty alleviation156
.
However, this view has been countered as being erroneous as while trade has created
enormous wealth in global terms, 'the huge increase in wealth generated by trade under
globalisation has not been matched by parallel progress in poverty reduction, or in broader
progress towards human development'157
as many developing states and the poor within
them are being left behind while inequalities are being widened through free trade
policies158
.
Indeed, while the World Bank claims that the 'openness' of an economy leads to economic
success and poverty reduction159
, this has been shown not to be the case. By analysing the
speed and depth of import-liberalisation undertaken by different countries, Oxfam has
demonstrated that some of the countries that have been most successful at integrating into
the global market in terms of growth and poverty reduction have only moderately
liberalised their economies. Many of those states which have radically liberalised their
156
Oxfam, supra n.153, p.122.
157
Ibid, p.21.
158
Ibid, p.5-7.
159
Ibid, p.131.

36
economies, on the other hand, have achieved very little in terms of economic growth and
poverty reduction160
. Similarly, Christian Aid has adduced evidence demonstrating that in
relation to the least developed countries of the world, those which have liberalised most
suffered from an increase in the levels of the population living on less than $1 a day161
.
Indeed, Joseph has commented that liberalisation is not a guarantor or prerequisite of
growth while the widespread poverty which blights the world (as discussed in Chapter 3)
has 'undoubtedly been facilitated' by free trade rules under the WTO162
.
It is submitted that these negative consequences with regards to poverty and development
stem from the fact that there are glaring asymmetries between the abilities of developed
and developing countries to compete regarding trade due to the 'astronomically differing
starting points'163
of the two. Indeed the fact that trade liberalisation applies to all countries
at all stages of development creates a 'level playing field of unequal players'164
, which
favours rich countries and the interests of powerful global business165
. It appears self-
evident that rich, developed states would be expected to reap the greatest benefits given
that they have developed comparative advantages in higher value sectors and face relatively
little competition in the developing countries of the world. In this sense, corporations from
industrialised states essentially have free reign in penetrating the markets of poorer
countries. Many developing countries, on the other hand, suffer due to disparities between
their capacity to attract imports and their capacity to increase exports166
, with growing
160
Ibid.
161
Christian Aid, 'The Economics of Failure: The Real Cost of 'Free' Trade for Poor Countries' (Christian Aid,
June 2005), p.4-5. Available at <http://www.christianaid.org.uk/Images/economics_of_failure.pdf>accessed 5
September 2013
162
Joseph, supra n.22, p.165.
163
UNCTAD, Address by Mr. Rubens Ricupero, Secretary-General of UNCTAD (10th Session, 12 February 2000)
UN Doc. TD/L.363 p.4.
164
UNECOSOC, ' Globalization and its impact on the full enjoyment of human rights: Report of the High
Commissioner for Human Rights submitted in accordance with Commission on Human Rights resolution
2001/32' (15 January 2002) UN Doc. E/CN.4/2002/54, para. 42.
165
Christian Aid, supra n.112 p.26-27.
166
Christian Aid, Supra n.161, p.1. The inability to increase the value of exports is also affected by the barriers
which developed states have erected against imports from developing countries such as putting in place high
tariffs on goods in which the latter have a comparative advantage. Many of these measures have been allowed
under WTO rules despite violating the notion of free trade. However, while their elimination would doubtless
improve the situation of developing countries and make WTO rules more fair, the fundamental problems of
neoliberal free trade policy upon the ability of developing states to develop and improve economic and social
rights would remain as discussed below. The point here is that the crux of the problem lies within neoliberal
free trade logic and policies themselves rather than in deviations therefrom. This has been recognised by
Joseph who sees that 'further liberalisation across all states is not a panacea for alleviating ongoing poverty in
developing states'. Joseph, supra n.22 p.180.This does not mean to challenge the assertion that WTO rules

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