Alliances with Human Rights

David Smiley

[Reprinted from Progress, January-February 2003]

In "Georgism in Trouble" I identified today's main agents of change as international, the big world movements, transnational corporations, and the larger non-governmental organisations, and I argued that these are run by modern economists and international lawyers. I argued further that Georgist proposals for social reform need to be couched in their languages and embedded in their programs, not those of Georgism. Nowhere is this more important than in the field of human rights.

HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR) was adopted by the UN in 1948. Its implementation was then delayed for 40 years by disagreements. Many of these disagreements remain unresolved, and some rights are still regarded as undefinable and undeliverable. The West favoured political rights and the socialist countries favoured economic rights. The third world then insisted that many rights are not universal but culturally relative, and came up with its own set of "Solidarity Rights". Since these contain embarrassing demands for compensation for colonialism and rights to their own natural heritage, the UN, the World Bank and the IMF have responded with various smokescreens, most recently the Global Compact, the Comprehensive Development Framework, and the Poverty Reduction and Growth Facility, all instead of addressing the fundamental problems.

THE FAILURE OF HUMAN RIGHTS

The mass of conventions, treaties and tribunals of human rights sits alongside another international regime, that of economic development. These have relied unsuccessfully on capital injection to deliver economic rights and legislation to deliver political rights, rather than attempting to achieve both through fundamental reform. And so, "Count up the results of 50 years of human rights mechanisms, 30 years of multi-billion dollar development programmes and endless high level rhetoric and the general impact is quite under-whelming … this is a failure of implementation on a scale that shames us all." (Mary Robinson, UN Human Rights Commissioner, quoted in Geoffrey Robertson, Crimes against Humanity, 1999, p. 32). Why have human rights failed?

Article 2.7 in the UN Charter essentially prevents collective interference in the domestic jurisdiction of the sovereign state. Although sovereignty is widely regarded as one of the causes of failure, its effects have been poorly analysed. Article 17 of the Universal Declaration of Human Rights in cases where the right to own scarce resources such as property in land and natural resources (without corresponding obligations to pay economic rent and correct for negative externalities) is quite capable of distorting the intended outcomes of most of the other 29 articles. The effects of article 17 on human rights has also been poorly analysed.

SOVEREIGNTY

"...it is doubtful whether any single word has ever caused so much intellectual confusion and international lawlessness" (Akehurst, M., 1987, A Modern Introduction to International Law, p. 15). The sovereign state in international law comprises a population, a territory, and a recognised government. As we shall see, the first maps uncomfortably onto the second wherever there has been conquest and migration. The third is a matter of recognition, itself "one of the most difficult topics in international law...a confusing mixture of politics, international law and municipal law" (Akehurst).

ACQUISITION

The main modes of acquiring territorial sovereignty, borrowed from Roman law, are cession (transfer by treaty), occupation (of terra nullius), conquest (by international war), and secession (by civil war). The first three are usually imposed by intruder groups. The fourth may often be an indigenous response to allocations of land and natural resources imposed by intruder groups, but sometimes simply a rent seeking coup by a regional group perceiving a comparative advantage in that region's position or resources. Intruder groups have defined most of the world's existing political boundaries, often in conflict with the natural boundaries of anthropology and geography. Internal indigenous and migrant populations may thus be consigned to areas of low land value for a variety of economic, political and cultural reasons.

Recognition. The main political principles applied to the recognition of the sovereign state are geographical contiguity, historical continuity, and self-determination. We have seen that the first two principles, reinforced by a further principle of non-interference, have nothing positive to say on differential human rights or land rights within the sovereign state. Thus municipal law can deny land rights to a "stolen generation" of aboriginal children who, as a result of protective custody, can no longer claim a historically unbroken connection with the land. And the results of self-determination are critically dependent on the definition of self. For example, expressions of self-determination such as independence from colonial rule, nationalisation of foreign property, etc., may simply amount to massive asset transfers from one rent seeking monopoly structure to another.

PROPERTY RIGHTS

Let us now look at the second possible reason for the failure of human rights: property rights. Bernard Shaw describes the link between sovereignty and property rights in a single sentence: "Imagine a small island to which castaways swim as ships are successively wrecked on a nearby reef; eventually the earlier occupants will be able to present new castaways with the choice: be our slave, or keep swimming." Remembering that the sovereign state comprises a population and a territory, let us expand Shaw's parable. Let us start with three sub-populations of the sovereign state, the indigenous peoples who were there first, intruder groups, usually becoming dominant, and subsequent migrant groups, usually becoming known as ethnic or minority groups. All these sub-populations, and foreign populations trading with the sovereign state, create rental values in land and natural resources in proportion to the levels of population and economic activity. These rents may be explicitly collectable, or arise implicitly in positional advantage over surface and subterranean resources. Examples of positional advantage include the control of trade routes and ports, water resources, and oil and gas reserves and pipelines.

Indigenous populations. India has a tribal population of some 20 million usurped by Aryan and Mongol invasions. Latin America has an indigenous population of some 35 million forest Indians and the remnants of mountain civilisations. Far larger are the indigenous populations of Africa and South-East Asia. Far fewer but perhaps closer to reconciliation are the North American native Indians and Australasian Aborigines. All these indigenous peoples were the prior occupants, they were "there first", and the land disputes are between them and the legacies of subsequent intruders. But prior occupancy is not always clear cut. It has been said that there are no aboriginals in the Mediterranean region, yet each layer of invasion and occupation has produced ethnic groups involved in disputes over land rights, similar to those involving indigenous peoples elsewhere, which can be traced back thousands of years.

INTRUDER POPULATIONS

Major intrusions resulted in the Classical, Moorish, Mongol, Ottoman and European empires. Since contemporary territorial boundaries, and the land and natural resource ownership structures within these boundaries reflect the European colonial empires, for our purposes here we will equate intruder populations with Europeans. In very large parts of the world the intruders have now left. But departing colonials sometimes retain rights in land and natural resources, or transfer them to other landlords, indigenous or transnational.

MIGRANT POPULATIONS

Where intruders displace populations, two migrations may result. The first is at best to traditional lifestyles in reserves or native title regions, at worst to degraded lifestyles in plantations, homelands, Bantustans, control zones, transit camps or rural shanty towns. In all cases these migrants forfeit the natural opportunities they leave behind. Some may subsequently undertake a second migration, enticed or coerced into the wage economies of the modern intruder sector. Those who are educationally and culturally disadvantaged squat in urban-peripheral shanty towns or inner-city ghettos, while others, capable of penetrating the market economy, now pay substantial rents for occupancy on the lands their ancestors may have originally owned. And these rents will be raised even further by the arrival of migrants, refugees, asylum-seekers and displaced people, from other countries, often in similar economic circumstances of expropriation, finally occupying what are known as ethnic ghettos.

CONCLUSION

It seems that sovereignty of the nation-state interacts with and reinforces monopolies in property rights, especially of land and natural resources, as a major cause of human rights violations, for example in the colonial past, and in nearly every contemporary political flashpoint. Following the example of domestic law in the area of compensation, we may now be seeing a similar explosive growth in international compensation claims. Starting from relatively small numbers of North American and Australian Aborigines, it is in principle possible that claims relating to historical human rights abuses may in the future be lodged by 40 million indigenous peoples, 100 million untouchables, and billions more in relation to slavery, colonialism, and war. For all the world's national and international territorial violations and human rights injustices, for those alive today the compensatory sums could be astronomical, the identification of legitimate payers and payees virtually impossible, and the political difficulties virtually insurmountable, as illustrated in the recent World Conference Against Racism.

Most countries today need to rewrite their histories in recognition of and reconciliation for past wrongs. But instead of futile attempts to compensate for past wrongs it would be far more efficient and equitable to install now a practical legislative instrument to remove future wrongs. This should address inequity and injustice in allocations of land and natural resources, increase rather than decrease economic efficiency, disturb property rights as little as possible, and reduce the apparently self-reinforcing complexity of contemporary human rights legislation. A tax reform satisfying all these requirements is known as Land Value Taxation.

This article carries a warning that it may contain misconceptions regarding human rights and international law. If you know a lawyer, or anyone involved with human rights, get him or her to check these out. This may even lead to the sort of professional alliance I am advocating.