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financing obligations illustrate the dilemma encountered by many states
in reconciling two conflicting values: whether the public debt repayment
would undermine the protection of economic and social human rights,
and whether the protection of fundamental human rights may impede the
repayment or terminate state public debt obligations. In this respect, the
UN ESCR Committee states that "in order for a State party to be able to
attribute its failure to meet at least its minimum core obligations to a lack
of available resources it must demonstrate that every effort has been
made to use all resources that are at its disposition in an effort to satisfy,
as a matter of priority, those minimum obligations."' 67 What "every
effort" is remains unclear. On the other hand, states must show their
willingness to repay their debt in order to be able to borrow further on
the international credit markets. 68
Traditionally, the protection of human rights has always concentrated
on balancing the interests of the individual with those of society as
whole, which include its international obligations to repay its debt to
creditors. It is very easy to claim that debt repayment violates economic
and social rights. 69 However, by not repaying public debt, financial
markets and lenders will probably not be willing to continue lending to a
needed state. Thereby, in the worst-case scenario, leaving the state
without necessary resources to secure the reasonable minimum standard
of economic and social rights. Joyce argues that "In the end,
governments must raise cash both on the markets and from other
governments... People might not like the idea of secondary debt... but
would any lender lend unless they had scope to sell on bad debt in the
event of a default?, 70 All of this calls for a middle approach where not
only individual reasonable minimum core of social and economic rights,
but also rights of lenders will be heeded. However, such solution is often
difficult to achieve.
The practice of financial markets and investment arbitration panels
illustrates that economic and social rights are not only underrated but that
they do not play even a slightly significant role. However, it is argued
that the reasonable minimum core of every human right, even economic
and social rights, is untouchable. In the context of economic crises only a
false dilemma arises when states are obliged to non-discriminatorily
provide at least a reasonable minimum core of economic and social
rights. Raffer, similarly, argues that "the right of creditors to interest and
repayments collides and the principle recognized generally (not only in
the case of loans) by all civilized legal systems that no one must be
67 U.N.
ESCR Comm., supra note 58, at para 10; see also CESCR, General Comment No. 19:
The right to social security (Art. 9 of the Covenant), Feb. 4 2008, E/C.12/GC/19, para. 59-61.
68Edmund S.Phelps & Amar Bhid&, The Root ofAll Sovereign-Debt Crises,ProjectSyndicate,
http://www.project-syndicate.org/commentary/the-root-of-all-sovereign-debtcrises#sfMuDjlOX9mBlmRT.99 (last visited March 15, 2013). The authors provide that:
"governments offer no collateral, and their principal incentive to repay - the fear of being cut offby
international credit markets - derives from a perverse addiction."
69 Michalowski, supra note 25, at 46-50.
70 Eric Joyce, Congo's victory against a 'vulturefund'is hollow, The Guardian, July 19, 2012,
http://www.theguardian.com/commentisfree/2012/jul/ 9/congo-victory-vulture-fund-hollow.