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As we have discussed in our coverage of the drug war in Mexico, Mexican cartels, including the VCF, clearly possess the capability to construct and employ large vehicle-borne improvised explosive devices (VBIEDs) — truck bombs — and yet they have chosen not to. These groups are not averse to bloodshed, or even outright barbarity, when they believe it is useful. Their decision to abstain from certain activities, such as employing truck bombs or targeting a U.S. Consulate, indicates that there must be compelling strategic reasons for doing so. After all, groups in Lebanon, Pakistan and Iraq have demonstrated that truck bombs are a very effective means of killing perceived enemies and of sending strong messages. Perhaps the most compelling reason for the Mexican cartels to abstain from such activities is that they do not consider them to be in their best interest. One important part of their calculation is that such activities would remove the main buffer that is currently insulating them from the full force of the U.S. government: the Mexican government. The Buffer Despite their public manifestations of machismo, the cartel leaders clearly fear and respect the strength of the world's only superpower. This is evidenced by the distinct change in cartel activities along the U.S.-Mexico border, where a certain operational downshift routinely occurs. In Mexico, the cartels have the freedom to operate far more brazenly than they can in the United States, in terms of both drug trafficking and acts of violence. Shipments of narcotics traveling through Mexico tend to be far larger than shipments moving into and through the United States. When these large shipments reach the border they are taken to stash houses on the Mexican side, where they are typically divided into smaller quantities for transport into and through the United States. As for violence, while the cartels do kill people on the U.S. side of the border, their use of violence there tends to be far more discreet; it has certainly not yet incorporated the dramatic flair that is frequently seen on the Mexican side, where bodies are often dismembered or hung from pedestrian bridges over major thoroughfares. The cartels are also careful not to assassinate high-profile public figures such as police chiefs, mayors and reporters in the United States, as they frequently do in Mexico

Mexico currently spends about 2.2 percent of GDP on social safety nets (or social assistance). There are around 8,000 social protection programs at the federal, state, and municipal levels.7 These programs cover 22.9 million Mexicans in the year 2020 (equivalent to 16 million households or 44.5 percent of total). Those in need are largely identified from the social census and SISI. The one-year cost of increased households assistance is estimated at 1.2 percent of GDP.

Acknowledging “delays in service and long waits for disability decisions,” Social Security officials took the unusual step last month of pleading with Congress for an extra $800 million as lawmakers negotiated a temporary budget for the new fiscal year. Congress in the past week approved about $90 million in the temporary spending package that expires Dec. 16. Social Security officials have blamed the stumbles on a staffing crisis and inadequate budgets. But there are many causes, according to lawmakers, current and former Social Security officials and advocates for the disabled: the power of the agency’s labor unions, a hesitance to make temporary pandemic workarounds permanent and an absence of permanent leadership. “They have always been slow,” said Jeff Larsen, a Houston-based attorney with Lone Star Legal Aid who specializes in the disability system. “But it’s much slower now. There’s more friction in the system.”

Six months after reopening its field offices to the public, the Social Security Administration is struggling to restore basic customer services and is assisting millions fewer of the poor, elderly and disabled people who sought its help before the coronavirus pandemic, federal data shows. Even as prolonged office closures caused applications for disability benefits to plunge, the sluggish response now of the agency meant to assist the country’s most at-risk citizens has led to delays in processing claims for those who manage to file them, and exhausting waits outside government offices around the country for those trying to. Nearly 20 percent of field offices have had 40 or more customers in line on multiple days when the doors opened, according to data Social Security recently provided to Congress. The long queues have raised tempers and safety concerns. One person fainted in line outside the office in Laredo, Tex. Others in Florida slept outside overnight to secure a spot for the next morning. Social Security’s remedy is to push customers to get help by phone or online, but fast service using those options, for many, is proving just as elusive. From April, when the 1,230 local offices began to reopen, through mid-August, the number of people helped by Social Security staff members had dropped by 46 percent from the 43 million visitors served annually before the coronavirus struck, according to data Social Security officials shared with national disability advocates. Visits have edged up in recent weeks but remain well below pre-pandemic levels, according to internal agency data and congressional offices. Those seeking disability benefits are far more dependent on in-person visits than retirees and others needing service from Social Security, as they often lack phones or access to the internet and must turn over original birth certificates, driver’s licenses and other documents. The extreme measures required from them have deepened questions about the capacity of a major federal department that serves as the last lifeline for many Americans. With its offices closed, Social Security disability claimants have few places to turn

[*164] However, simply expanding the reach of Totalization Agreements would not resolve this established practice of exclusion for a number of reasons. For one, undocumented workers would continue to be denied benefits, their significant contributions to the system notwithstanding. 84 Additionally, certain categories of legal temporary workers would continue to be barred from receiving Social Security benefits, for example those belonging to exempt visa categories, 85 and those from countries ineligible to receive Social Security benefits. 86

This deliberate exclusion is a profitable policy for the federal government. Temporary workers who pay Social Security taxes and then cannot withdraw benefits provide an annual buffer of several billion dollars to the beleaguered benefit program. 87 Although perhaps it is understandable that the U.S. is not jumping to extend benefits to these uncovered workers, this policy of denial contributes to the enduring cycle of poverty and deprivation that draws these workers to the U.S. in the first place. Not only does this lack of support create disincentives for return migration, it also infringes on migrants' right to social welfare protection, and denies migrants equal treatment under the law. 88 These incentive and rights-based concerns are discussed in detail in the following section.

(Dawn Nuschler, Specialist in Income Security, Congressional Research Service, “International Social Security Agreements,” pg online @ https://www.everycrsreport.com/files/20100111_R41009_f1dc12843e82d3913aa00854a71db03a76c1ee57.html#_Toc251315428 //um-ef)

Despite these initiatives, GAO cautioned in 2005:

GAO ’05 [Government Accountability Office; February 2005; “A More Formal Approach Could Enhance SSA’s Ability to Develop and Manage Totalization Agreements”; \\pairie]

SSA's policies and procedures for assessing the accuracy and reliability of important information from foreign countries-such as birth and death data-when entering into totalization agreements remain generally informal, but recent initiatives for improvement seem promising. Historically, SSA has conducted only limited reviews, focusing primarily on broad policy issues and systems compatibility, rather than the integrity and reliability of earnings data and evidentiary documents. For example, during preliminary negotiations with Mexico, SSA conducted a limited review of that country's social security system but did not assess the reliability of that country's data. SSA has also developed several initiatives to identify risks associated with totalization agreements. These include: developing a standardized questionnaire for assessing the reliability of foreign earnings data, soliciting input from other government agencies, and using a matrix to compare potential agreement countries. SSA is also conducting "vulnerability assessments" to detect potential problems with foreign countries' documents. All of these tools are positive steps to help SSA assess potential risks posed by unreliable foreign data. However, SSA has not integrated these initiatives into formal procedures. Given the upcoming retirement of key management officials, SSA may lose critical institutional knowledge, which may limit the agency's ability to assess risks associated with future agreements.

The impact of IMF loans has been widely debated. Opponents of the IMF argue that the loans enable member countries to pursue reckless domestic economic policies knowing that, if needed, the IMF will bail them out. This safety net, critics charge, delays needed reforms and creates long-term dependency. Opponents also argue that the IMF rescues international bankers who have made bad loans, thereby encouraging them to approve ever riskier international investments.¶ IMF conditionalities have also been widely debated. Critics contend that IMF policy prescriptions provide uniform remedies that are not adequately tailored to each country’s unique circumstances. These standard, austere loan conditions reduce economic growth and deepen and prolong financial crises, creating severe hardships for the poorest people in borrowing countries and strengthening local opposition to the IMF.

The International Monetary Fund seems determined to dilute one of the best examples of global cooperation in response to the economic disruptions induced by the COVID-19 pandemic and climate change. It must change course now, before it is too late.¶ The IMF’s allocation of $650 billion in special drawing rights (SDRs, the Fund’s reserve asset) in August was long encouraged and widely welcomed. Given the IMF’s tight rules, it was clear from the start that the vast majority of SDRs would go to countries that did not need them. As a result, G7 leaders pledged to re-channel upwards of $100 billion of their allocations to “countries most in need of … pandemic [support to] stabilize their economies, and mount a green and global recovery … aligned with shared development and climate goals.”¶ While these moves seem small compared to the $17 trillion that rich countries have spent to support their economies during the pandemic, they were nonetheless significant. In October, just two months after the allocation, the G20 backed a plan by the IMF and the World Bank to develop and implement a Resilience and Sustainability Trust, which would allow wealthy countries to channel their allotments to low- and middle-income countries vulnerable to economic shocks. Because the RST could be used to address risks related to climate change, it would fill a glaring gap in international finance. The IMF announced that it would have a proposal ready for its 2022 spring meetings.¶ But will it be enough?¶ Extreme weather events like floods and hurricanes can trigger financial instability in vulnerable countries as they wipe out capital stock and sources of foreign exchange. Likewise, countries dependent on fossil-fuel exports face fiscal uncertainty as demand for oil and gas decreases to meet climate goals. In both cases, spillover effects can negatively affect trade. Countries confronting such conditions must undertake a structural transformation of their economies. But many low- and middle-income countries lack access to the cost-effective, flexible financing they need.¶ A well-designed RST would make the IMF criteria for resource allocation and country eligibility more adaptable. Unfortunately, five design flaws in the IMF’s approach would render the planned RST ineffective for most climate-vulnerable countries.¶ The first flaw concerns eligibility. IMF programs discriminate on the basis of income, but climate change does not. While the G20 explicitly called for the establishment of an RST covering low-income and climate-vulnerable middle-income countries, the IMF has adopted a narrow interpretation according to which middle-income countries would be eligible only if they do not exceed a certain income threshold.¶ But traditional measures of income are a poor criterion for determining eligibility. The IMF must adjust its thinking to actual circumstances and ensure that eligibility is based on climate vulnerability. It should not be controversial to integrate into the criteria simple measures such as susceptibility to physical climate risks like floods, droughts, and hurricanes, or economic factors like the share of fossil-fuel exports in total foreign-exchange earnings.¶ Second, there is a problem with the terms and accessibility of the funds. Developing countries lack the fiscal space to mobilize domestic resources to address the structural changes their economies need. Many also lack access to external resources on reasonable borrowing terms. But the IMF is proposing that RST users be charged the SDR interest rate (currently five basis points and on the rise) plus a margin of up to 100 basis points. These rates are not very different from what the Fund currently charges middle-income countries. More problematic is the access limits, which would be 100% of quota, or less than the SDR equivalent of $1 billion. These guidelines would do little to address the financing needs of all but the smallest countries.¶ The third flaw is the IMF’s insistence on conditionality. The Fund sees the RST as a top-up scheme for existing programs. This is deeply troubling. According to the IMF’s own research, its existing lending facilities are stigmatized, owing to their high levels of conditionality and low levels of performance with respect to economic recovery and other social outcomes. The RST was supposed to be a new instrument that recognizes and channels resources to the countries that are most vulnerable to climate change. But what the IMF plans is repackaged business as usual.¶ The fourth flaw is that even though the IMF is only now devising a climate-change strategy, it would head the RST. Multilateral and regional development banks are also prescribed SDR institutions, and they have a longer view and a stronger track record on climate policy. They need to be part of the RST’s governance.¶ Lastly, there is the question of scale. IMF Managing Director Kristalina Georgieva has said the RST would be funded with around $30 billion initially and then scaled up to $50 billion. While the RST alone cannot be expected to substitute finance needed to address the intensifying effects of climate change, the needs assessment released by the Standing Committee on Finance of the United Nations Framework Convention on Climate Change put the figure at $6 trillion, and other estimates are significantly higher. At the recent UN Climate Change Conference (COP26), Barbados Prime Minister Mia Amor Mottley, whose country is among the world’s most vulnerable, proposed an annual increase in SDRs of $500 billion for 20 years to finance resilience and sustainability.¶ The IMF’s shareholders and stakeholders must reconsider the RST’s design. To succeed, it must include all climate-vulnerable developing countries, regardless of income level. It must provide low-cost financing that does not undermine members’ debt sustainability and is not linked to pre-existing IMF programs with onerous conditionalities. It must be governed by key stakeholders in development-finance institutions. And it must scale appropriately over time.¶ The IMF must make the necessary adjustments to its proposal for the RST. If it cannot, creditor countries should refrain from capitalizing it.

Last week's Annual Meetings of the World Bank and the International Monetary Fund - the Bretton Woods Institutions - was the first face-to-face gathering since the outbreak of the Covid-19 pandemic. The need for ambitious action could not be greater. The two institutions stressed that the world is facing multiple and interconnected crises - defined as a “polycrisis” by historian Adam Tooze - and outlined by the World Bank as: ‘Increased poverty. Food shortages. Energy shocks. Debt crises. Climate change. Inflation. War.’ The Bank’s forecast also predicted “the world may be edging toward a global recession in 2023”, while the IMF warned ‘the worst is yet to come’ for the global economy. This will have dramatic consequences for already rising poverty levels and inequalities. However, there was a disconnect between the alarming messages delivered by the World Bank and IMF - and by activists on the streets of Washington DC and around the world who were calling for action - and the underwhelming practical responses of the institutions. ¶ The main takeaway of the week is that the Bretton Woods Institutions have failed to deliver what is needed, proving yet again that they are unfit for purpose. The problem starts with their governance system, which simply must now be reformed. ¶ Designed in 1944, when power relations were driven by colonialism, the current governance structure and quota distribution, which gives the greatest power to a few countries, follows that same (neo)colonial logic. Mia Mottley, the Prime Minister of Barbados, argued in her address to the 2022 United Nations General Assembly, that the time had come “for a review of the settlement of the Bretton Woods institutions.” She said that the agreement that gave rise to the WB and the IMF “no longer serv[ing] the purpose in the 21st century that they served in the 20th century”. This was also raised by speakers at a civil society session dedicated to IMF governance, where the need to address the unbalanced governance structure and to end the ‘gentlemen's agreement’ that guarantees the US-European leadership at the BWIs, was clear.¶ A first step to deliver the systemic governance reform so desperately needed in both institutions would be a major change to the quota distribution. A major opportunity to advance with this reform is the upcoming 16th review of IMF quotas (the previous review failed to introduce any meaningful reforms). During the meetings IMF Managing Director, Kristalena Georgieva, acknowledged the high cost of failing to review the IMF quota, admitting to civil society organisations (CSOs) that “it undermines the credibility of the IMF, it undermines our ability to serve our members”. ¶ The polycrisis reveals the true colour of IMF policies¶ Civil society has for years denounced the gap between IMF rhetoric in favour of government spending on public services and social protection, and its practice that continues to recommend austerity measures. This year, the gap narrowed, as the rhetoric moved closer to the practice. Georgieva made clear that tackling inflation and reducing fiscal deficits are the priority, even if we are still deep in crisis with no end in sight, and even if countries have already contracted their public spending. As the 2022 edition of Oxfam and Development Finance International’s Commitment to Reducing Inequality Index shows, during the pandemic, half of low- and lower-middle-income countries saw health spending fall; half of the countries tracked by the Index cut social protection spending; 70 per cent cut education spending; two-thirds of countries failed to increase their minimum wage in line with gross domestic product. ¶ The standard IMF answer to CSOs’ concerns about the new wave of austerity cuts is that countries have to intensify social protection and other support measures targeted to the poorest and most vulnerable people. As Eurodad argued previously, targeted systems have proven to be inefficient at reaching those in need, commonly excluding over half of the intended beneficiaries and reinforcing gender stereotypes, rather than challenging them. In fact, civil society attending the Annual Meetings were astonished by the limited interest of IMF staff to seriously engage with CSO concerns, despite new evidence that by next year 85 per cent of the world will be affected by austerity. ¶ The only two measures announced to help countries face the crises and increase their fiscal space were the creation of a temporary Food Shock Window (FSW) for emergency lending, and the operationalisation of the Resilience and Sustainability Trust, both debt-creating tools.¶ The FSW might provide some short-term relief to countries struggling to pay for their food imports, but it does nothing to correct the IMF’s long held support for trade liberalisation measures, market-led land reforms and financial deregulation of agriculture, which have contributed to creating a dysfunctional and unbalanced global food system.¶ The operationalisation of the RST is the latest move of the so far-failed attempt to rechannel the 2021 Special Drawing Rights (SDRs) allocation to countries that need it the most. While the IMF announced that Rwanda, Barbados and Costa Rica have officially applied for the RST, no SDR has been rechanneled yet. ¶ At the Meetings, civil society reiterated concerns previously expressed about the RST, such as the fact that eligible countries must have a concurrent programme with the IMF, meaning they will have to withstand the Fund’s macroeconomic recommendations and definition of a stable macroeconomic environment, whether they agree with it or not. An additional concern is the emphasis placed on the hope that the RST will play a catalytic role for private capital to support climate needs, introducing reforms that will make it easier for governments to play a ‘de-risking role’ and create incentives to attract private investment in the energy transition. This sounds too much like WBG’s ‘maximising finance for development’ approach, termed by Professor Daniela Gabor the ‘Wall Street Consensus’, which has been questioned due to its focus on driving private capital into areas that should remain under the State. This is also something that may end up increasing the financial vulnerability of the Global South, serving the interest of private capital instead of those of people and the planet. None of these issues were addressed.¶ The RST, with its combination of macroeconomic programmes in the area of climate adaptation, energy transition and pandemic preparedness, will turn the IMF into a major actor in climate action. However, its limited expertise in the area, its unwillingness to move away from conditionality and austerity, and its unequal governance system make it ill-placed to play such a role. Climate action and climate finance should follow the principles of ‘polluters pay’ and ‘common but differentiated responsibilities’. They should include a strong element of justice and retribution, acknowledging that the most important policy issue in economics today is how to tackle climate change in an equitable, just, gender-responsive and human rights-based manner. All of these are yet to be seen in the IMF’s engagement with climate. ¶ The IMF should use a greater variety of instruments to help countries expand their fiscal space, such as the elimination of surcharges - a system of fees on loans from the institutions; a new allocation of Special Drawing Rights - especially if targeted to developing countries; and more focus on the need for debt restructuring. Yet none of these measures were addressed during the Meetings.

This Article challenges that presumption by presenting situations where customary international law has both lessened and expanded states' treaty rights and obligations, thereby supporting the few scholars who have posited - usually in purely theoretical works - that customary international law may modify treaties. By advancing a doctrinal justification for such modification based on lex posterior, this Article also contributes to the growing literature questioning whether the legitimacy of the binding nature of international legal obligations can be grounded solely in state consent. This argument is novel to the extent that it presumes that general - rather than universal - acceptance of a new customary rule may be sufficient to work a treaty modification, thereby avoiding the holdout problem inherent to multilateral treaty modification under the Vienna Convention's consent-focused rules (whereby a single state can upset the consensus of the majority). Finally, this Article advances the counterintuitive argument that this less consensual basis for treaty modification requires a state to engage in more consensus-respecting conduct. When a state wishes to argue against a traditional understanding of a treaty provision, the usual approach of adaptive interpretation - attempting to reinterpret a treaty's text to permit an action previously understood as forbidden - actually encourages states to act unilaterally and risk destabilizing the international legal order. In contrast, a state that bases its legal argument on the claim that the treaty has been modified by subsequently developed customary international law will have to identify and engage in coalition-building conduct. Part I reviews how treaties were historically relatively flexible bilateral agreements concluded against a stable background of default customary international law. While foundational customary norms and bilateral agreements are still the norm, today's international legal structure is complicated by a proliferation in multilateral treaties and an increasing demand for international regulation of new areas, technologies, objects, actions, and ideas. In the absence of directly relevant treaty law, and in need of reliable guiding principles, states are developing practices standardizing their rights and duties in these new spheres. As a result, treaty text is increasingly running up against conflicting state action and swiftly developing customary international law. Part II describes consent-based means of modifying treaties and concludes that these traditional methods do not legitimately resolve all conflicts between treaty and later-in-time customary international law. Part III demonstrates that the possibility of treaty modification by customary international law has long existed in the international legal structure and evaluates different doctrinal justifications for such modification. Part IV employs the threatened U.S. unilateral use of force in Syria as a case study to tease out the relative benefits and drawbacks of these different means of treaty modification. I. A New International Legal Order Customary international law and treaty law are the two primary sources of international legal obligations. Sometimes they operate independently, governing particular fields; sometimes they serve as mutually reinforcing regulations; sometimes one fills the other's lacunae; sometimes they mandate apparently contradictory actions. As this Article is concerned with how customary international may modify treaties, this Part traces how, due to ideological, geopolitical, and technological developments, the relationship between these two sources of international legal obligations has grown more complicated and more prone to conflict. [*242] A. The Classic Account 1. Stable Customary International Law A rule of customary international law is recognized as existing when states generally engage in specific actions (the "state practice" requirement) and accept that those actions are obligatory or permitted (the "opinio juris sive necessitatis" element). Thus, unlike custom in many domestic legal systems, which derives much of its authority from its long-standing nature, customary international law has no formal temporal requirement. Instead, a rule of customary international law is authoritative because states generally abide by it in the belief that it is law. That being said, because of the generalized state practice requirement, customary international law was slow to develop in a world of limited communication and sporadic technological advances. Accordingly, historic customary international law comprised long-established, well-known, and relatively fixed rules governing relations among all states. It regulated the recognition of new states and state responsibilities; the exchange of diplomatic counsels and their immunities; the conduct and resolution of wars; the creation, interpretation, and termination of treaties; and other subjects associated with state interaction. 2. Flexible Treaties Against this background of static customary norms, states concluded [*243] bilateral treaties - written documents memorializing agreements between two states - clarifying their respective legal rights and duties. These treaties were relatively flexible legal regimes: they could be modified or terminated with the consent of states parties, by the conclusion of a subsequent, conflicting treaty between the same parties, by the denunciation of one party after a material breach by the other, or by a fundamental change in circumstances or other supervening event resulting in the impossibility of performing a promised legal obligation. Additionally, certain types of treaties - for example, commercial or trading treaties or treaties of alliance - were generally presumed to allow for unilateral denunciation. Accordingly, treaties have long been celebrated as a source of adaptive positive law that reflects states parties' needs. B. The Modern World Today's international legal structure is far more complicated. Certain customary rules still serve as background defaults governing many areas of state interaction, and the majority of new treaties are still bilateral. But two factors - the rise of multilateral treaties and swiftly developing customary international law - have changed the dynamic between treaty and customary international law, resulting in treaties sometimes being the fixed backdrop against which new state practice and norms develop. 1. Constitutive Treaties The past century has seen a dramatic rise in multilateral treaties - treaties [*244] concluded by multiple countries that often aspire to universal participation. As early as the 1920s, scholars were recognizing that there were "an increasing number of multilateral treaties." According to one study, eighty-six multilateral treaties were concluded in the century between 1648 through 1748 - but more than two thousand such treaties were concluded in the twenty-five years between 1951 and 1975! This proliferation might be traced to a growing conviction that certain global problems - including combating the training and financing of transnational terrorist organizations, minimizing human-driven climate change, and reducing the development or use of weapons

General Principles of International Law, Obligations Erga Omnes and Jus Cogens¶ Commentators have mentioned a number of legal bases for the proposition that the Covenant, or the norms included in it, are applicable to the IMF directly as a subject of international law.18¶ Customary International Law¶ One such basis would be the view that the norms contained in the Covenant are now part of general or customary international law. It has been argued that, even in the absence of any consent on the part of an international organization, its freedom to act in the pursuit of its mandated objectives may be constrained by international law norms. Under this argument, such norms would not operate to change the objectives of the international organization set out in its constituent instrument, but to limit in some way the actions that the organization could legitimately take in pursuit of such objectives.19 It has been suggested that a similar reasoning should be applied to human rights generally, and that the international financial organizations have in this respect a “duty of vigilance” to ensure that their actions do not have negative effects on the human rights situation of their borrowing members.20¶ The applicability of this line of reasoning to the Covenant (or the rights set out in it) would depend initially on a finding that the norms it contains are part of general international law.21 It has been stated that the Universal Declaration “is now part of the customary international law of nations and therefore binding on all States.”22 Others have gone only so far as to state that some human rights have attained such status, and the examples they give are in the area of political and civil rights.23 The various pronouncements of the International Court of Justice on human rights would seem to support this second view.24 The most that can be said in this regard is that it is not generally accepted that the Covenant (or the norms contained in it) form part of general or customary international law.¶ Since the norms contained in the Covenant have not reached the status of norms of general international law, it would be difficult to sustain that they impose themselves to the IMF in some other fashion, either as obligations erga omnes, or as part of jus cogens. Nevertheless, it may be useful to consider these two points briefly.¶ Obligations Erga Omnes¶ Under this heading, the view would be taken that certain obligations, including certain human rights obligations, would be owed “to the entire international community.”25 The origin of this theory is to be found in the Barcelona Traction case and the distinction the International Court of Justice drew, obiter dictum, between the obligations a State owes to the international community as a whole and those arising vis-à-vis another State.26 A discussion of this complex topic would be well beyond the scope of this paper. Suffice it to state that the scholarly opinion does not seem to have reached a consensus around the idea that human rights other than those enumerated by the International Court of Justice have attained the status of obligations erga omnes.27 The reservation in Article 24 of the Covenant concerning the charters of the specialized agencies would support this conclusion.¶ Jus Cogens¶ “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”28 As in the case of obligations erga omnes, there is no evidence that economic and social rights have reached the status of norms of jus cogens.29 Article 24 of the Covenant leads to the same conclusion.¶ In any event, Article 24 of the Covenant shows that the Covenant was not intended to supersede the charters of the specialized agencies. In order for any norm of the Covenant to become binding on an international organization, the organization would in effect need to modify its constituent instrument. To the extent the international organization could not give effect to the norm without doing violence to its constituent instrument, the norm would not prevail over the constituent instrument. With respect to the IMF, the social rights to health or education, for example, lie outside its mandate. Finally, questions would also arise concerning the contents of such an obligation. This issue is discussed below in the context of the discussion of the possible obligation of the IMF not to hinder the implementation of its members’ own international obligations. It may thus be concluded that the Covenant is not a treaty that is binding on the IMF, and thus it has no direct effect on the IMF.¶ Indirect Effect of the Covenant¶ Under this view, the members of the IMF that are party to the Covenant would have an obligation to seek the implementation of the Covenant not only in their bilateral relations with other parties, but also through their actions in international organizations. The terms of the Covenant do not limit the duty to cooperate internationally to cooperation with other States parties or with States in general. The duty is general and, if the interpretation made of it by the Committee on Economic, Social and Cultural Rights is shared by the States parties, the duty would include cooperation with international organizations and cooperation within international organizations. The Committee appears to have recently taken the view that States parties to the Covenant have a duty to ensure that the policies and decisions of the international financial organizations of which they are members are in conformity with the obligations of States parties to the Covenant.¶ The manner in which this indirect effect would affect an international organization may vary depending on the country involved. First, all States parties would be under a general obligation to seek, in the international organizations in which they are members, the adoption of policies conducive to the achievement of the rights set out in the Covenant in the territories of all States parties. Such a duty would fall particularly on the States parties that are thought to have some influence on the policies of the international organizations.30 Second, a State party receiving technical or financial assistance from an international organization would be under a separate duty to ensure that the program it undertakes with such assistance is consistent with its obligations under the Covenant. Conversely, the international organization would have a duty to ensure that it did not hinder the State party’s ability to implement the Covenant. In a few recent instances, the Committee has commented on the need to ensure that a country’s obligations under the Covenant “be taken into account” in all aspects of the country’s negotiations with international financial institutions “to ensure that economic, social and cultural rights, particularly of the most vulnerable groups of society, are not undermined.”31 These two aspects of the question will be examined in turn.

The International Monetary Fund is developing a funding facility worth up to $50 billion to boost climate resilience in debt-burdened poor and vulnerable nations.¶ Its proposed Resilience and Sustainability Trust would redistribute affordable finance from rich to poorer countries along with policy support to manage macro-economic climate risks.¶ Speaking during the IMF’s annual meeting last week, its head Kristalina Georgieva told reporters the trust has “a very important objective: to help countries transition to low-carbon climate resilient, smart inclusive economies”.¶ Finance ministers from the G20 major economies endorsed the idea and asked the IMF and the World Bank to work together to deliver it.¶ Experts hailed the move as “pivotal” in helping vulnerable nations address the triple crisis of debt, Covid and climate change. Advocates said it could fill a gap in the climate finance architecture – although one critic said the money would be better routed through established climate funds.¶ Since the start of the coronavirus pandemic, cash-strapped developing countries and small island states have been pleading for financial support to make up for the collapse of revenues from tourism and the commodity trade. Low credit ratings mean they can’t easily borrow to finance a green recovery and in many cases are struggling to meet citizens’ basic needs.¶ Sara Jane Ahmed is a finance advisor to ministers from the V20 group of vulnerable countries, which has lobbied the IMF for the creation of such a fund.¶ Ahmed said the IMF has traditionally been focused on financial shocks, meaning “the physical shocks caused by climate-fueled disasters have inadequate support”.¶ Yet climate change spells “economic and financial disruption and destruction for the world’s most climate vulnerable developing countries,” she said. The new trust could support vulnerable nations to develop economic strategies with climate resilience at their heart, she added.¶ Kevin Gallagher, professor of Global Development Policy at Boston University and a champion for green debt relief, told Climate Home News this was “a pivotal moment”.¶ The Resilience and Sustainability Trust creates “a largely climate finance fund” of up to $50 billion, he said. “That doesn’t happen every day.”¶ It could help “fill a gap in the climate finance architecture” by helping emerging markets and developing countries respond to climate disasters, he added.¶ For example, if a hurricane hits a Caribbean island and wipes out its hotels and roads driving away tourists and collapsing its revenues, the nation won’t be able to pay for imports or pay back existing international debt. The trust would allow countries to go to the IMF for specific climate-related support.¶ The idea for the trust was born amid a decision by the IMF to inject the equivalent of $650 billion of reserve assets, known as special drawing rights (SDRs), into the global economy to help countries respond to the Covid-19 crisis.¶ By default, SDRs are allocated to countries proportionally to the size of their economy, which means richer nations receive most of the support. Low-income countries only get about $21bn.¶ Georgieva has repeatedly urged rich nations to voluntarily redistribute the money to those who need it most and IMF staff have been working on options to do so.¶ Unlike other IMF funds, the proposed Resilience and Sustainability Trust would provide support for vulnerable middle-income countries as well as the poorest.¶ Paul Steele, chief economist at the London-based IIED think tank, said the trust was “a huge breakthrough for climate vulnerable countries”.¶ By scaling up its size to meet developing countries’ needs, “it could be transformational for climate resilience,” he told Climate Home News.¶ The IMF said it was “confident” that with the backing from the international community the Resilience and Sustainability Trust “could become operational in just over a year”.¶ While experts have widely welcomed the creation of the trust, they are poring over the fine print.¶ A senior UN official told Climate Home News that, to be successful, any mechanism for redistributing the SDRs needed to help countries to “make good on their 2030 climate plans and build resilience”.¶ Steele, of IIED, said that the SDRs channeled through the trust must be additional to aid money. The UK committed on Wednesday to sharing £1 billion of its £20bn ($27.4bn) allocation with vulnerable countries. Controversially, though, chancellor Rishi Sunak is expected to count this towards a reduced aid target rather than using it to restore previous levels of support.¶ Steele said the money could lead to policy changes which have so far eluded the Paris Agreement’s main funding mechanism, the Green Climate Fund, which works at the project or programme level.¶ Hannah Ryder, CEO of Development Reimagined, an African-led international development consultancy, disagreed. In an article for The Africa Report, she argues that SDRs should be re-distributed directly to the Green Climate Fund and the Adaptation Fund – without the need to create another IMF-administered trust.¶ This, she said, would allow money to be targeted to specific regions and places where it is most needed.¶ “For Georgieva to be a true hero, she needs to focus on not creating a new fund but on reforming the fund she is in,” she wrote.¶ In the past, access to IMF funds have come with onerous fiscal conditions that many have argued did more harm than good and people and put countries off using its support.¶ Gallagher said it was “paramount” that the trust did not impose rigid conditions for accessing cash. “We cannot afford to lock up billions in climate finance.”

Forty-four countries have applied for the International Monetary Fund's new resilience trust loans, but overall funding is far from enough to deal with climate disasters and other long-term shocks, making it urgent for the public and private sectors to commit more resources, according to IMF officials and panelists.¶ Speaking at a seminar on climate finance on Monday, IMF Managing Director Kristalina Georgieva said demand is strong, as 44 countries have expressed interest in borrowing from its $40 billion Resilience and Sustainability Trust (RST) since it went into operation a half-year ago.¶ The event, themed "Scaling Up Resilience and Sustainability Financing", was co-organized by the Bretton Woods Committee, the International Finance Forum (IFF), and the Paulson Institute.¶ It brought together policymakers and practitioners to offer their perspectives on how climate considerations can be further embedded in public investment decisions, and private participation and financing be further leveraged to help make economies more sustainable.¶ Rwanda is the first African country approved by the IMF Executive Board in December to receive $319 million funding from the RST, which will be used to build resilience to climate change and help to catalyze further financing.¶ It was followed by Barbados, Costa Rica, Bangladesh and Jamaica.¶ Georgieva said the RST fund is "modest in size", as putting the world on the net-zero emission trajectory and adapting to the part of the global warming already locked in requires trillions of dollars of investment.¶ Governments cannot mobilize it alone, and the financing gap is particularly large, especially in emerging and developing countries, where ways must be found to substantially scale up private finance.¶ "So 40 billion is not a solution on its own. But it is a contribution to a solution, if it helps remove barriers for massively scaling investment, especially private investment in emerging markets and developing economies," she said.¶ Georgieva said that dealing with climate-related disasters are a "very difficult and yet critical" journey, one that would make the planet more resilient.¶ Following the IMF chief's speech, John Lipsky, vice-chair of Bretton Woods Committee, and also moderator of the discussion, noted that despite the urgency in the area of climate finance and climate mitigation, there seems to be a perennial risk as the more dramatic news of the day distracts the attention.¶ Uzziel Ndagijimana, minister of finance and economic planning of Rwanda, said that the old shocks, from COVID-19 to climate change, and the conflict in Ukraine are overlapping, constituting a major threat to macroeconomic stability and to populations.¶ "So focusing on one and leaving the others would be not right, particularly as opposed to pandemics, which may come and cause damages and they go, climate effects can last a longer period and require both immediate actions and continuous and consistent measures for both adaptation and mitigation," he said.¶ Li Bo, IMF's deputy managing director, said the creation of the Resilience and Sustainable Facility a year ago showed that 190 members of the global lender have put climate at the "very top" of their agenda.¶ "The bad news is that we are falling short. We need trillions of dollars going into clean energy, going into green projects every year," he said. "What we are mobilizing right now is only a fraction of that. We need urgent action. We need unprecedented global cooperation."¶ Going forward, the IMF expects the RST to play a catalytic role, approaching climate financing from three perspectives: policy environment, capacity building and financing arrangement.¶ "We need to blend public capital with private capital, we need to create de-risking arrangements, so that private capital will find the risk-return profile attractive," he said.¶ Jin Liqun, president of the Asian Infrastructure Investment Bank, said that when people really believe climate change is a crisis, there shouldn't be shortage of resources.¶ "So far I think some people still think it is crying wolf. If you don't think it's a crying wolf thing, you would put up your gun, right? You'll be prepared," he said.¶ Jin said that when multilateral development banks work together, one of the most important objectives of client members is that the government will take climate change seriously, which will be a boost to regulatory policy improvement.¶ Lin Jianhai, vice-president of the IFF, who also was attending the seminar at the IMF headquarters, said addressing climate change and sustainability challenges requires both short-term actions and consistent efforts at all levels.¶ "We do not only need to raise the awareness of this evolving crisis, but also leverage resources from both public and private sectors, together with international financial institutions," Lin told China Daily on Tuesday.

Expertise is always needed to make economic policy programmes. Especially in uncertain crisis times, experts can have greater influence on decision-making if they have access to decision-makers. Our analysis sheds light on the IMF’s expert role in the earliest stage of the Eurozone crisis. We explain how and why the IMF joined and influenced the first Greek loan package in 2010. We indicate that a new knowledge regime (the Troika) was formed in spring 2010 and, as it had direct influence on the Greek loan, it turned into a de facto policymaking regime. The conclusive reason for the IMF’s involvement from the IMF’s perspective is a combination of factors. We argue that the most relevant ones were the fear of contagion, European influence in the IMF, Strauss-Kahn’s personal role, and the IMF’s need for legitimacy. Indeed, the IMF strengthened its financing role, but at the same time Greece’s declining economy challenged IMF’s credibility as a neutral expert (Nordström and Teivainen Citation2022).¶ For the EU, there was some friction between reasons to oppose and to justify IMF involvement. The former included monetary sovereignty and the legitimacy of the EU as an autonomous actor that should not request the help of an institution associated mostly with devising economic programmes for poorer and weaker countries. IMF involvement was justified by the credibility it would bring to the crisis resolution, especially as there was a lack of confidence in the Commission for being too political and lacking crisis management expertise. The specific reasons for including the IMF, that were all connected to lack of confidence towards the Commission, were the need for practical expertise and perceived quality in loan and conditionality negotiations, its public image of credibility, the perceived need for the IMF as a strict guarantor of austerity, and depoliticisation, which was also linked to all the former motives. Similar to IMF’s earlier history, there was depoliticisation in two dimensions: the expertise and (economic) neutrality doctrine of the IMF were used to depoliticise the crisis at the same time that the programme decision-making was kept in general on a technocratic level. This message was intended especially for the outside world. Additionally, depoliticisation was intended to diffuse political tensions inside the EU. This, however, failed and did not prevent the Eurozone crisis from repoliticising economic policies. Our study shows that depoliticisation is used as a strategy to legitimate crisis management. International organisations’ capacity to deliver is conditioned on their legitimacy (Tallberg and Zürn Citation2019, 581).¶ Sovereignty was renegotiated in a multilevel way: Greece’s sovereignty was partly surrendered to external experts, as has been common in the IMF’s history. At the same time, in a novel way, the EU, as creditor with one of its member states as debtor, managed its monetary sovereignty by compromising it in a less serious manner by inviting the IMF as a “neutral” expert and junior partner. This compromise was easier than in a nation state, as the decision-makers did not have to pay so much attention to the (non-existent) European demos, but still difficult for the many decision-makers who tried to protect the recently established EMU monetary sovereignty. The Troika’s legitimacy was sought externally among the financial sector through IMF’s credible expertise and austerity policies, and internally among the EU member state political elite by limiting the Commission’s powers.Footnote7 Here, legitimacy is not defined as responding to citizen’s desires (for that use see Carstensen and Schmidt Citation2018).Footnote8¶ A further research avenue would be to study whether the IMF played a similar depoliticising role in the subsequent loan agreements, when the Commission had already acquired expertise and a reputation as a guarantor of austerity. What role did depoliticisation signify in the exit of the IMF from the Troika? Additionally, it would be relevant to analyse the later internal IMF critique, and to what extent it was used to restore the depoliticising role when the IMF’s image of neutrality had received a serious blow from the European bailouts.

Forty-four countries have applied for the International Monetary Fund's new resilience trust loans, but overall funding is far from enough to deal with climate disasters and other long-term shocks, making it urgent for the public and private sectors to commit more resources, according to IMF officials and panelists.¶ Speaking at a seminar on climate finance on Monday, IMF Managing Director Kristalina Georgieva said demand is strong, as 44 countries have expressed interest in borrowing from its $40 billion Resilience and Sustainability Trust (RST) since it went into operation a half-year ago.¶ The event, themed "Scaling Up Resilience and Sustainability Financing", was co-organized by the Bretton Woods Committee, the International Finance Forum (IFF), and the Paulson Institute.¶ It brought together policymakers and practitioners to offer their perspectives on how climate considerations can be further embedded in public investment decisions, and private participation and financing be further leveraged to help make economies more sustainable.¶ Rwanda is the first African country approved by the IMF Executive Board in December to receive $319 million funding from the RST, which will be used to build resilience to climate change and help to catalyze further financing.¶ It was followed by Barbados, Costa Rica, Bangladesh and Jamaica.¶ Georgieva said the RST fund is "modest in size", as putting the world on the net-zero emission trajectory and adapting to the part of the global warming already locked in requires trillions of dollars of investment.¶ Governments cannot mobilize it alone, and the financing gap is particularly large, especially in emerging and developing countries, where ways must be found to substantially scale up private finance.¶ "So 40 billion is not a solution on its own. But it is a contribution to a solution, if it helps remove barriers for massively scaling investment, especially private investment in emerging markets and developing economies," she said.¶ Georgieva said that dealing with climate-related disasters are a "very difficult and yet critical" journey, one that would make the planet more resilient.¶ Following the IMF chief's speech, John Lipsky, vice-chair of Bretton Woods Committee, and also moderator of the discussion, noted that despite the urgency in the area of climate finance and climate mitigation, there seems to be a perennial risk as the more dramatic news of the day distracts the attention.¶ Uzziel Ndagijimana, minister of finance and economic planning of Rwanda, said that the old shocks, from COVID-19 to climate change, and the conflict in Ukraine are overlapping, constituting a major threat to macroeconomic stability and to populations.¶ "So focusing on one and leaving the others would be not right, particularly as opposed to pandemics, which may come and cause damages and they go, climate effects can last a longer period and require both immediate actions and continuous and consistent measures for both adaptation and mitigation," he said.¶ Li Bo, IMF's deputy managing director, said the creation of the Resilience and Sustainable Facility a year ago showed that 190 members of the global lender have put climate at the "very top" of their agenda.¶ "The bad news is that we are falling short. We need trillions of dollars going into clean energy, going into green projects every year," he said. "What we are mobilizing right now is only a fraction of that. We need urgent action. We need unprecedented global cooperation."¶ Going forward, the IMF expects the RST to play a catalytic role, approaching climate financing from three perspectives: policy environment, capacity building and financing arrangement.¶ "We need to blend public capital with private capital, we need to create de-risking arrangements, so that private capital will find the risk-return profile attractive," he said.¶ Jin Liqun, president of the Asian Infrastructure Investment Bank, said that when people really believe climate change is a crisis, there shouldn't be shortage of resources.¶ "So far I think some people still think it is crying wolf. If you don't think it's a crying wolf thing, you would put up your gun, right? You'll be prepared," he said.¶ Jin said that when multilateral development banks work together, one of the most important objectives of client members is that the government will take climate change seriously, which will be a boost to regulatory policy improvement.¶ Lin Jianhai, vice-president of the IFF, who also was attending the seminar at the IMF headquarters, said addressing climate change and sustainability challenges requires both short-term actions and consistent efforts at all levels.¶ "We do not only need to raise the awareness of this evolving crisis, but also leverage resources from both public and private sectors, together with international financial institutions," Lin told China Daily on Tuesday.

In advanced economies, direct taxes and transfers reduce income inequality, on average, by about one-third. In 2015, the average Gini coefficient for disposable income in these economies was 0.31 compared with 0.49 for market income. Approximately three-quarters of this fiscal redistribution was achieved on the transfer side of the budget (Figure 1.9), with public pension benefits accounting for about half of this (Wang and Caminada 2011).

The money the IMF loans to its members on its general – or non-concessional – terms comes from member countries, mainly through their payment of quotas. Multilateral and bilateral arrangements can supplement quota funds and plays a critical role in the IMF’s support for member countries in times of crisis. The IMF’s current total resources of about SDR 983 billion translate into a capacity for lending of about SDR 696 billion (around US$925 billion), as at end-June 2023.

Who funds the IMF?¶ IMF funds come from three sources: member quotas, multilateral and bilateral borrowing agreements.

It is common to talk of the IMF as being an international lender of last resort (LLR), playing a role akin to the one played by central banks in a domestic context. I myself have used this analogy at times and I suspect many of those in this room have done so as well.¶ But the more I have thought about the subject, the more I have realized that the analogy falls short. In reality, while the IMF performs some functions that look like an LLR, it also differs from a domestic LLR in a number of important respects. Indeed, the differences are so fundamental—and so unlikely ever to be eliminated—that it is time we change the terminology of what the Fund really does and should do in the future, assuming it should continue to exist.¶ Central banks within countries typically have three characteristics that enable them to function as lenders-of-last-resort:¶ They can flood a troubled market with liquidity by printing money (which ordinarily lowers interest rates on government securities and thereby makes investments in riskier assets, such as loans, bonds and equity securities, relatively more attractive).¶ They can provide temporary loans to specific solvent institutions, typically banks, that may find themselves short of liquidity in a crisis.¶ They limit moral hazard by regulating potential borrowers (banks), and if they are following Walter Bagehot’s rules, only provide loans at a penalty rate backed by good collateral.¶ The IMF differs from a domestic LLR, however, in the following important respects:¶ First, although it has created a small amount of a kind of “world money” for central banks, or SDRs, the Fund cannot act as the world’s provider of liquidity. The resources of the Fund are limited by the amount of currencies deposited by members. The Fund cannot print money to lend to any worthy borrower like a central bank, but increasingly must husband its scarce resources, a topic I address in greater detail shortly.¶ Second, while the Fund can and does lend to individual countries in need of liquidity, its loans often have effective maturities that last for years.¶ Third, I do not believe the distinction between “illiquidity” and insolvency” is useful in the international context. It is hard enough for a central bank, in the heat of a crisis, to distinguish whether any particular bank is illiquid or insolvent. But what would it even mean to say that a country is insolvent and not merely illiquid?. Sure, governments can and do default on their obligations. But are the countries “insolvent” when they do so, or are political leaders simply unwilling to pay the political and economic price of honoring the country’s debts? Take Russia, as an example. Even though the government there has effectively defaulted on its loans, and caused the banks to do likewise, Russia remains very rich in resources and so is hardly “insolvent”.¶ Fourth, the Fund does not regulate countries preemptively in the same way that central banks (or national supervisors) regulate their potential bank borrowers. To be sure, the Fund has a carrot—money—to persuade countries that want to avoid a crisis by reforming their policies. But until countries ask for money, either in the absence or in the middle of a crisis, the Fund has no ability to regulate their activities.¶ With some exceptions, the Fund does not charge a penalty rate on its loans, and in this sense the IMF looks very much like our Fed. At the same time, the Fund’s conditions on its loans seem to entail more micomanagement of its borrowers than would be the case even for a national bank supervisor of a troubled institution. But the Fund imposes tough conditions because it cannot seize assets of countries, as can private creditors; or overthrow their leaders, as even U.S. regulators can now do in the case of weakly capitalized banks under the new “prompt corrective action” regime (to be precise, U.S. regulators can assume control of a weak, but still solvent bank, and sell it to others who can recapitalize and manage it).¶ Sixth, unlike central banks that have an interest in immediately supplying such funds as may be necessary to stop a deposit run (consistent with prudent lending practices), the Fund dribbles out the disbursement of its assistance in small doses. It does this because the prospect of handing over more money is its only real leverage to ensure that borrowing countries adhere to the Fund’s conditions. But gradualism has its costs as well, since countries can find it hard to stop a currency run when they are short of reserves on hand.¶ Seventh, the IMF is governed by many different countries with different interests and must work by consensus. Its director does not have the power of, say, an Alan Greenspan to move the entire body, although recently the U.S. government (through the Treasury) has been well out in front in leading the IMF. However, the U.S. still only has an 18% vote, and our influence inevitably must wane if we are not willing to provide the IMF with the additional resources it has requested.

The words" outward, open, actual, visible, substantial, and exclusive," in connection with a change of possession, mean substantially the same thing. They mean not concealed; not hidden; exposed to view; free from concealment, dissimulation, reserve, or disguise; in full existence; denoting that which not merely can be, but is opposed to potential, apparent, constructive, and imaginary; veritable; genuine; certain: absolute: real at present time, as a matter of fact, not merely nominal; opposed to form; actually existing; true; not including, admitting, or pertaining to any others; undivided; sole; opposed to inclusive.