A Fate Worse than Debt: An Alternative View of the Right to Development and its Relevance in the External Debt Problem of Developing Countries

Dr Noel Villaroman
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Abstract

The external debt problem of developing countries is a lacuna in public international law. An author has observed that uncertainties and questions about external debts “remain ignored by treaty law or have not been regulated by contracts and are probably not yet governed by customary law.” There is currently no multilateral treaty that specifically governs the situation of a developing country plagued by simultaneous debt repayments. Neither is a typical international loan contract useful in looking for fair and equitable solutions to the problems occasioned by external debts. This thesis aims to contribute in filling up this legal void. The main controversy in this thesis involves a collision between the principle of pacta sunt servanda as applied in international loan contracts and a proposed legal principle that may be employed to counter the ill-effects upon a debtor country of a high level of external indebtedness. This thesis will propose an alternative view of the “right to development” which is supported by certain legal norms whose bases are well-established in public international law. It will argue that the right to development can be invoked as a legal shield to protect debtor countries against the adverse repercussions occasioned by debt-related arrangements and policies in the international plane. This alternative view will be put into an empirical application within the backdrop of the external debt problem of the developing countries. Is the right to development applicable in the specific context of creditor-debtor relation between states? How can it be applied vis-a-vis the main problems occasioned by a huge external indebtedness? The area of public external debts is one of the many international settings where the cards are stacked, so to speak, against the debtor countries. This thesis will show how a high level of indebtedness adversely impacts a debtor country in two major ways. First, through the use of policy “conditionalities,” the present international debt relief mechanisms significantly limit a debtor country’s prerogative in managing its own process of economic development. And second, the creditors’ staunch claim to be repaid and the debtor country’s lack of choice but to heed such a claim result in the latter’s inability to perform its treaty obligations to realise the economic, social and cultural rights of its people. This thesis will argue that both are legally incompatible with the right to development, and both ought to be addressed by a proposed debt restructuring mechanism for debtor countries that genuinely respects and promotes this right. Contact author at Noel.Villaroman@monash.edu.
比债务更糟糕的命运:对发展权及其与发展中国家外债问题的关系的另一种看法
发展中国家的外债问题是国际公法的一个空白。一位作者注意到,关于外债的不确定性和问题“仍然被条约法所忽视,或者没有受到合同的管制,而且可能还没有受到习惯法的管制”。目前没有任何多边条约具体规定发展中国家同时偿还债务的情况。典型的国际贷款合同也无助于寻求公平和公正地解决外债所引起的问题。本文旨在为填补这一法律空白做出贡献。本论文的主要争议涉及国际贷款合同中适用的契约必须遵守原则与一项拟议的法律原则之间的冲突,该原则可用于抵消高外债对债务国的不良影响。本文将提出另一种关于“发展权”的观点,这种观点得到了某些法律规范的支持,这些法律规范的基础在国际公法中已经确立。它将争辩说,可以援引发展权作为一种法律屏障,保护债务国免受国际层面上与债务有关的安排和政策所造成的不利影响。这种另一种观点将在发展中国家外债问题的背景下付诸实际应用。发展权是否适用于国家间债权人-债务人关系的具体情况?它如何适用于由巨额外债引起的主要问题?可以说,公共外债领域是对债务国不利的众多国际环境之一。本文将展示高负债水平如何在两个主要方面对债务国产生不利影响。首先,通过使用政策“条件限制”,目前的国际债务减免机制大大限制了债务国管理其自身经济发展进程的特权。其次,债权人坚决要求偿还,而债务国别无选择,只能听从这种要求,导致后者无法履行其条约义务,实现其人民的经济、社会和文化权利。本文将论证两者在法律上与发展权是不相容的,两者都应该通过提议的债务国债务重组机制来解决,真正尊重和促进这一权利。联系作者Noel.Villaroman@monash.edu。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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