Globalization, Capital Markets and Human Rights Ross P Buckley ...

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Globalization, Capital Markets and Human Rights Ross P Buckley* I. INTRODUCTION Globalization finds its fullest expression in international financial markets1 because capital moves with strokes on a keyboard in response to information on computer screens.2 It arises from the computer and communications revolutions, the growth in multinational enterprises, the tremendous increase in international institutional investment, the international victory of free market capitalism in the contest of ideologies and the associated reductions in national barriers to trade and capital.3 While these elements of globalization are relatively recent, they are not new phenomena. The Roman Empire was the most important force for globalization the world had seen,4 and, more recently, financial globalization was so strong in the late nineteenth and early twentieth centuries that the scale of international capital-flows relative to GDP has yet to be repeated.5 *

Executive Director and Professor, Tim Fischer Centre for Global Trade and Finance, Bond University, Queensland, Australia. This was written while I was a Visiting Professor in the Centre for Commercial and Property Law, Queensland University of Technology. My sincere thanks to the Centre and QUT for their support of this, and my other, research and to the Australian Research Council for the grant that further supported this research. An earlier version of this paper was delivered at the colloquia on “Globalisation and Liberal Democracy” at the Key Centre for Ethics, Law, Justice and Governance, Griffith University, Brisbane, Australia, Mar. 31, 2000. My thanks to the participants and particularly to Dr Haig Patapan, the Colloquium convenor, for his comments. All responsibility is mine. 1 See Peter D. Sutherland, Lecture, Managing the International Economy in an Age of Globalisation, at the 1998 Per Jacobsson Lecture at the annual meeting of the International Monetary Fund and World Bank (Oct. 4, 1998); JOSEPH A. CAMILLERI & JIM FALK, THE END OF SOVEREIGNTY 77-78 (Edward Elgar Publishing 1992); Juan Ayuso & Robert Blanco, Conference Paper, Has Financial Market Increased during the 1990’s? presented at the International Financial Markets and the Implications for Monetary and Financial Stability conference of the Bank for International Settlements (Oct. 25-26, 1999), available at http://www.bis.org/publ/confer08.htm (last modfied Nov. 15, 2001). 2 Globalization has been defined as “the increasing tendency toward an interconnected worldwide investment and business environment.” See Investorwords Investing Glossary http://www.investorwords.com (visited Oct. 10, 2001). See also Yahoo Financial Glossary, available at http://biz.yahoo.com/f/g/gg.html (last modified Oct. 10, 2001) (the “tendency toward a worldwide investment environment, and the integration of national capital markets.” ). 3 See John H. Farrar, The New Financial Architecture and Effective Corporate Governance, 33 INT’L LAWYER 927, 927-8 (Winter 1999). 4 See John Braithwaite, Sovereignty And Globalisation Of Business Regulation, in TREATYMAKING IN AUSTRALIA 115, 119 (Alston & Chaim ed., Federation Press 1995); see also JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION at 40 (Cambridge University Press 2000). 5 See Barry Eichengreen & Michael Mussa, Capital Account Liberalization: Theoretical and Practical Aspects, IMF Occasional Paper No. 172, 31 (1998). The net capital outflow from the United Kingdom before 1914 peaked at somenine percent of GNP and the proportion was almost as high for France, Germany and Holland, the other major creditor countries. These proportions have not been achieved since. Likewise, current account deficits of the principal capital importing countries, Argentina, Australia and Canada, were over ten percent for long periods. These levels have only been achieved by developing countries for short periods, which typically have been followed by very difficult adjustments. See Id. Barry Eichengreen & Michael Mussa. Capital Account Liberalization: Theoretical and Practical Aspects, IMF Occasional Paper No. 172, 31 (1998). While net capital flows relative to GDP, they were if

Globalization is a broad church; a process with many facets. This Article will consider the impact of globalization on capital markets and the subsequent impact of globalized capital markets on human rights in developing countries. II. THE GLOBALIZATION OF CAPITAL MARKETS The globalization of capital markets includes the following phenomena and trends:6 1. Massive capital flows are facts of life, and foreign investors in particular are opportunists. Foreign investors quickly move money into an economy in large quantities and, as we saw in Mexico in late 1994, Asia in 1997 and Russia in 1998, will seek to remove it even more quickly when storm clouds gather. 2. The nature and management of investors changed radically in the 1990s. The proportion of capital controlled by the large institutional investors (mutual funds, pension funds, and insurance companies) increased dramatically.7 Hedge funds brought aggressive new investment techniques to bear. More significantly, but with less publicity, virtually all major commercial and investment banks and securities firms established departments that function as hedge funds, making extensive use of leverage and derivatives with the capacity to move in and out of markets swiftly. Indeed, the entire money management sector has become far more performance-driven, less risk averse and more inclined to heavily use leverage.8 3. Access to up to the minute information facilitates investment decisions at great distances allowing foreign investors to receive relatively homogenized information. Before the communications revolution, long-term investment was often the only sensible approach to foreign investment. Today, an investment portfolio in Brazil can be managed as aggressively and intensively as if it is one’s own country. However, the sources of information upon which the investment decisions will be based are far less diverse than if made in one’s own country, with predictable consequences for investor behaviour. 4. Modern financial derivatives provide tremendous opportunities for hedging risks, but are perhaps more often used to facilitate speculation and as integral anything, higher pre-1914 than today, gross flows are much higher today. Furthermore, investment pre1914 was overwhelmingly in the bonds of governments, railways, mining companies and public utilities. Some eighty-five percent of overseas portfolio investment was in the bonds of government (that can raise taxes) or industries with substantial tangible and transparent assets. See id at 32-34. 6 The following factors owe much to Henry Kaufman, Protecting Against The Next Financial Crisis: The Need to Reform Global Financial Oversight, the IMF, and Monetary Policy Goals, 34 BUS. ECON. 56, 58-60 (July 1999). 7 For instance, U.S. mutual funds assets increased over four times between 1990 and 1997 from $1,067 billion to $4,490 billion. See UNITED STATES DEPT OF COMMERCE, Statistical Abstract of the United States 533 (118 ed. 1998). 8 Claire Makin, Doesn’t Anybody Remember Risk? INSTITUTIONAL INVESTOR XXVII, 41 (April 1994) (“Strategies once deemed to be on the wilder, forbidden shores of the business are being eagerly embraced by mainline institutional investors.” ).

elements of volatility inducing activities. Certainly “an increased use of derivatives leads to higher cross-border capital flows … , thus leading to a rise in the asymmetry of information and therefore in financial volatility.”9 5. In contemporary capital markets with efficient depositary and settlement systems, liquidity can be temptingly easy to believe in. ‘If it trades like a global bond and settles like a global bond it must have the other characteristics of a global bond.’ Capital markets that are deep and efficient in good times can rapidly become thin, volatile and illiquid in bad times. This is especially true of secondary markets in debt and of access to new money through debt issues.10 6. Due to the above factors, capital markets in the debt and equity of developed and developing nations are integrated and interdependent today to an unprecedented degree.11 Each of these aspects of globalization tends to increase the volume of portfolio capital flows to emerging market nations and the volatility of such flows. Indeed, there is considerable evidence that the globalization of financial markets increases the volatility of such markets.12 The globalization of capital markets gives countries access to new sources of capital driving economic growth.13 This is globalization’s great attraction. However, as the international debt crisis that erupted in 1982 and the more recent currency and financial crises in Mexico, Asia and Russia have demonstrated, generous access to foreign capital is often far from a good thing for developing countries. A slick intellectual trick is often perpetrated here. Free trade in goods and services is generally accepted among economists as welfare enhancing. It tends at times to cause severe change and economic dislocation in countries, but overall the result of free trade is a wealthier world. The trick is to assert that what holds for goods holds for money. Is not money just another good? Legally it is often treated as such, yet, experience tells us otherwise.14 The difference is that capital has to be repaid. Capital is only welfare enhancing if put to productive uses, generating returns in excess of the cost of the capital. The failure by Latin America to do this with the massive loans of the 1970s led to the debt crisis of the 1980s. Likewise, the incapacity of the East Asian financial systems to channel the increased capital flows of the early and mid-1990s 9

Pablo Bustelo, Clara Garcia & Iliana Olivie, Working Paper, Global and Domestic Factors of Financial Crisis in Emerging Economies: Lessons from the East Asian Episodes, Instituto Complutense De Estudios Internationales Working Paper No. 16, 71 (Nov. 1999). 10 ROSS P. BUCKLEY, EMERGING MARKETS DEBT: AN ANALYSIS OF THE SECONDARY MARKET (Kluwer Law International 1999). 11 See Ayuso & Blanco, supra note 1 (for instance, Russia’s economic troubles in August 1998 sent yields on the U.S. long bonds to unprecedented lows and affected even U.S. municipal bonds). 12 See id.; see also Bustelo, Garcia & Olivie, supra note 9 at 68. 13 See Robert G. King & Ross Levine, Finance and Growth: Schumpter Might Be Right, 108 Q.J. ECON. 717, 719 (Aug. 1993); Ross Levine & Sara Zervos, Stock Markets, Banks and Economic Growth, 88 AM. ECON. REV. 537, 537 (June 1998). 14 F.A. MANN, THE LEGAL ASPECTS OF MONEY: WITH SPECIAL REFERENCE TO COMPARATIVE PRIVATE AND PUBLIC INTERNATIONAL LAW, (5th ed., Clarendon Press 1992) (1938).

into productive uses contributed significantly to the Asian crisis of 1997. The Asian economies were performing strongly before foreign capital flows to the region increased due to local capital market liberalization, surplus liquidity in the United States, and the dissuasive effect the Mexican peso crisis in late 1994 had on further capital flows to Latin America.15 It is therefore not surprising that the increased capital flows of the 1990s ended up fuelling speculative bubbles in local stock and real estate markets. The clearest lesson of the recent economic crises is that unfettered capital mobility is not necessarily welfare enhancing and not an unmitigated good.16 III. IMPACT ON HUMAN RIGHTS IN DEVELOPING COUNTRIES The globalization of capital markets leads to greater international portfolio capital flows and “increases the vulnerability of emerging markets to crises.”17 In good times, these flows support growth in developing countries. In bad times, they cause untold and appalling human suffering. The key lies in who benefits from portfolio capital flows in good times and who they harm in bad times. The huge loans to Latin America in the 1970s brought “massive returns to the rich.”18 However, when these loans had to be repaid in the 1980s they were repaid by increasing taxes, reducing price supports on essential items and cutting spending on public health care, public education and public infrastructure.19 The rich benefited from the loans yet the common people and the poor repaid them. Similarly, in Asia the boom in portfolio capital flows and lending to the region in the early to mid-1990s principally benefited the rich. The dislocation and impoverishment brought on by the crisis in 1997 has fallen far more heavily on the shoulders of the common people and the poor.20 With the exception of Indonesia, Asia is recovering from the 1982 crisis more quickly than Latin America and sub-Saharan Africa. Nonetheless, 15

See Ross P. Buckley, An Oft-Ignored Perspective on the Asian Economic Crisis: The Contribution of Creditors and Investors, 15 BANKING & FIN. L.REV. 431, 443 (2000). 16 See Ross P. Buckley, International Capital Flows, Developing Countries and Economic Soverignty, KLUWER Y.B. INT’L ECON. L. (1999); N Lusting, Presidential Address, Crises and the Poor: Socially Responsible Macroeconomics, Fourth Meeting of Latin American and Caribbean Economic Association (Oct. 22, 1999). 17 See Bustelo, Garcia & Olivie, supra note 9, at 83. 18 A Survey of Latin America; Yes, We Have No Mananas, THE ECONOMIST, Nov. 13, 1993, at 5, 7 [U.K. ed]. 19 Between 1981 and 1986 real GDP per capita fell ten percent in Mexico, sixteen percent in Argentina, and twenty-seven percent in Bolivia. James, Deep Red – The International Debt Crisis and Its Historical Precendents, THE AMERICAN SCHOLAR, 331, 340 (Summer 1997); Dr. JLS Abbey, Growing Out of Debt – The African Problem, in THIRD WORLD DEBT – MANAGING THE CONSEQUENCES 159, 159-60 (Griffith-Jones ed., IFR Publishing Ltd., 1989). See also JORGE G. CASTENEDA, UTOPIA UNARMED: THE LATIN AMERICAN LEFT AFTER THE COLD WAR at 5, (Alfred A. Knopf ed., Random House Publishing Co. 1993); Jerry Dohnal, Structural Adjustment Programs: A Violation of Rights, 1 AUSTL. J. HUMAN RIGHTS 57, 72-74 (1994) and Duncan Green, Hidden Fist Hits the Buffers, NEW INTERNATIONALIST 35 (Oct. 1995). See, e.g. Wade Mansell, Legal Aspects of Debt, 18 J.L. & SOC’Y. 381, 388-390 (Winter 1991). Accord Jesus Silva-Herzog, The Costs of Latin America’s Development, in LATIN AMERICA’S DEBT CRISIS – ADJUSTING TO THE PAST OF PLANNING FOR THE FUTURE?, 33, 35 (Pasto ed., Lynne Reinner Publishers 1987). 20 Crisis in Asia Spawns Millions of ‘Newly Poor’, WALL ST. J., June 4, 1999, at B-5A (by the World Bank’s estimates, the Asian crisis has plunged many millions into poverty).

the profound difference between those who benefit from international capital, and those who pay for it, has remained the same. As Nora Lustig has written, “Macroeconomic crises, with the exception of wars, are the single most important cause of large increases in … poverty,”21 or in Charles Calomiris’ words, “When the crisis has passed, the big winners are the wealthy, politically influential risk takers, and the biggest losers are the taxpayers in countries like Mexico or Indonesia.”22 This transferal of responsibility onto the poor is depressingly consistent. After the debt crisis broke in 1982, the international banks required that all loans, corporate and sovereign, be brought under the sovereign guarantee as a way of facilitating rescheduling negotiations. This it did. It also improved the security of the banks, dramatically. The largest banks benefited the most from this stratagem, as each held the highest proportion of loans to the less creditworthy private sector. It is not surprising these were the banks in charge of the rescheduling negotiations.23 In East Asia in 1997, the great majority of the debt originated in the private sector. This did not stop the taxpayer from eventually bearing it. The IMF-led bailouts, invariably described as bailouts of Indonesia or Thailand or Korea, were, in fact, longterm loans to these countries that had to be used to repay the short-term creditors. These loans thus became debts of the nation and the bail-outs24 were of the creditors, not the debtor nations.25 The repayment process in times of crisis is generally directed and orchestrated by the International Monetary Fund (IMF). In Latin America and Africa in the 1980s, IMF structural adjustment programs have been shown to have infringed numerous basic human rights.26 After initially advocating and requiring a fiscal austerity that deepened the Asian crisis, the IMF admitted its initial stance was wrong and agreed to reflationary policies in many countries that have aided the region in its recovery from the crisis. Nonetheless, there are children today in Indonesia, Korea and Thailand who are hungry or have to work, rather than attend school, because of the impoverishment and economic dislocation brought about by the Asian crisis, a crisis to which international capital flows contributed significantly. It is time for a new allocation of responsibility in international lending that sees losses shared more evenly between creditors and debtors in times of trouble.

21

Nora Lustig, , Crisis and the Poor: Socially Responsible Macroeconomics, Presidential Address to the Fourth Annual Meeting of the Latin American and Caribbean Economic Association, Santiago, Chili (Oct. 22, 1999) at http://muse.jhu.edu/demo/eco/1/1.1lustig.html (last modified March 13, 2002). 22 Charles W. Calomiris, The IMF’s Imprudent Role As Lender of Last Resort, 17 CATO J. 275, 276-77 (Winter 1999). 23 See ROSS P. BUCKLEY, EMERGING MARKETS DEBT: AN ANALYSIS OF THE SECONDARY MARKET 43 (1999). 24 Incidentally, all such bail-outs must stop. In the Asian context, the bail-outs rewarded the shortterm creditors who had helped precipitate the crisis and did nothing for the creditors who had advanced the type of debt that needs to be encouraged: long-term debt. The bail-outs were very damaging for the poor of Asia and virtually guaranteed the creditor behaviour that in 1998 was to greatly exacerbate Russia’s crisis. But that is beyond the scope of this short article. 25 See generally Charles W. Calomiris & Allan H. Melzer, Fixing the IMF, 56 NAT’L INT. 88 (Summer 1999). 26 See Dohnal, supra note 19.