A/HRC/33/54
establishment of viability and growth without creating incentives that would inadvertently
increase the risk of non-compliance. Such a framework should act as a deterrent to
disruptive litigation that creditors could engage in during negotiations to restructure
sovereign debts. In explicit reference to vulture funds, the Assembly highlighted that their
activities forced indebted countries to divert many of their resources to handle such
litigation, thereby undermining the purpose of the debt restructuring processes.
54.
In September 2015, the General Assembly adopted resolution 69/319,63 in which it
declared that sovereign debt restructuring processes should be guided by the Basic
Principles on Sovereign Debt Restructuring Processes, as included in the report of the Ad
Hoc Committee (A/AC.284/2015/2).64 According to the principle of sustainability, debt
restructuring workouts should lead to stable debt situations while promoting sustained and
inclusive economic growth and sustainable development. This relevant principle also
requires minimizing economic and social costs, warranting the stability of the international
financial system and respecting human rights. 65
55.
By its general character, sustainability has become a key principle in the promotion
and protection of economic development, growth and human rights. 66 In times of debt
crisis, different interests are at play and a balance must be struck between them. The private
interest of the outset creditor’s rights cannot be protected at the expense of the public
interest of protecting and promoting the sustained and inclusive economic growth and
sustainable development of a country.
56.
Against this background, the Human Rights Council, on 26 September 2014,
adopted, by a large majority, another landmark resolution, entitled the “Effects of foreign
debt and other related international financial obligations of States on the full enjoyment of
all human rights, particularly economic, social and cultural rights: the activities of vulture
funds”, supported by a large majority. In resolution 27/30, the Council explicitly
condemned the direct negative effect that the debt repayment to those funds, under
predatory conditions, had on the capacity of Governments to fulfil their human rights
obligations.67 The Council called upon States to consider implementing legal frameworks to
curtail predatory vulture fund activities within their jurisdictions.
VIII. Impact of the activities of vulture funds on human rights
57.
Human rights monitoring bodies have contributed to articulating the linkage
between the activities of vulture funds and human rights, in particular by focusing on the
negative impact such activities have on the capacity of the State to fulfil its human rights
obligations (see in particular A/HRC/14/21).68 Empirical research has also analysed the
negative economic and financial consequences derived from commercial litigation against
63
64
65
66
67
68
Adopted by a vote of 136 in favour and 6 against, with 41 abstentions.
The nine principles are sovereignty, good faith, transparency, impartiality, equitable treatment,
sovereign immunity, legitimacy, sustainability and majority restructuring.
For a comment, see J.P. Bohoslavsky and M. Goldmann, “An incremental approach to sovereign debt
restructuring: sovereign debt sustainability as a principle of public international law”, Yale Journal of
International Law, 2016 (forthcoming).
OHCHR, “Restructuring of sovereign debt: United Nations expert stresses General Assembly
principles are binding”, 10 September 2015.
Adopted by a vote of 33 in favour and 5 against (Czech Republic, Germany, Japan, United Kingdom
and United States), with 9 abstentions. It was co-sponsored by 79 additional States.
The duty to fulfil imposes on the State an obligation to take appropriate legislative, administrative,
budgetary, judicial and other measures towards the full realization of economic, social and cultural
rights.
15
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