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Search icon. Close menu icon. Menu icon bar 1 Menu icon bar 2 Menu icon bar 3. Globalization has led to new challenges and opportunities for the protection and promotion of human rights.
The case against human rights | Eric Posner | News | The Guardian
Although the current trade and human rights regimes are both post-war phenomena, they have developed on parallel, separate and sometimes inconsistent tracks. As the postwar GATT regime evolved into the World Trade Organization in late , so its rules and those of its accompanying agreements evolved into a detailed legal code, which is interpreted and defined through a dispute settlement process. This process, however, has not been transparent and has not viewed dispute resolution through the lens of human rights impacts.
Provisions of WTO Agreements on domestic food safety and other technical standards, as well as on intellectual property directly affect the ability of governments to fulfill their human rights obligations to their citizens. This is especially true in the case of social and economic rights, which should be understood in connection with, not in isolation from, civil and political rights.
This paper argues that trade and human rights regimes need not be in conflict, so long as the trade regime is interpreted and applied in a manner consistent with the human rights obligations of states. This interpretation respects the hierarchy of norms in international law, where human rights, to the extent that they have the status of custom in international law, and certainly where they have the status of preemptory norms, will normally prevail over specific, conflicting provisions of any treaties including trade agreements.
The preamble of the WTO Agreement, which establishes the framework for the entire WTO system, does not make free trade an end in itself. Rather, it establishes the objectives of the system as related to the fulfillment of basic human values, including the improvement of living standards for all people and sustainable development. As is widely recognized now, both in development literature as well as in numerous documents of international policy, these objectives cannot be reached without respect for human rights. The UN Charter states that one of its "purposes" is to "achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all.
Although the GATT text -- now part of the broader WTO system of treaties -- reflects the recognition of non-trade public values, which are meant to prevail in the event of conflict with its free trade rules, institutional isolation has contributed to a very limited interpretation of this principle.
Specifically, GATT Article XX, which was designed to be a fundamental pillar of the international trade regime, has often been construed so restrictively as to almost read it out of text, or to marginalize it. Compounding the problems created by institutional isolation is the atmosphere of secrecy and the lack of transparency in the dispute settlement and appellate process within the WTO. And the provisions that limit or balance trade liberalization, protecting other human interests, are as fundamental a part of the international law of trade, as those that support the globalization of markets.
They must not be read out or down. Enlightened interpretation of the GATT and other WTO agreements, however, will not in and of itself address the needs of under-development, inequality and the corresponding violations of fundamental human rights around the world. Trade rules must be looked at in their relationship to other phenomena connected to globalization, such as free capital movements and the practices of the international financial institutions. We must understand the effects of trade laws and policies in the broadest sense, and evolve new laws and policies in a manner that overcomes the isolation between human rights institutions and economic institutions, including those preoccupied with the trading system.
Protect Human Rights
The relationship of trade law and human rights law: In the event of a conflict between a universally recognized human right and a commitment ensuing from international treaty law such as a trade agreement, the latter must be interpreted to be consistent with the former. When properly interpreted and applied, the trade regime recognizes that human rights are fundamental and prior to free trade itself.
Labour: It is often claimed that the GATT prohibits members from regulating access of imports based on the manner in which those products have been produced, even if such regulations are applied equally to domestic products. However, this view is inconsistent with a close analysis of the jurisprudence, despite its presence in two notorious panel rulings, which were not adopted as legally binding by the GATT membership.
The correct reading of the GATT text would permit a country to impose conditions on imports related to the labour practices involved in their production. Government Procurement: The current negotiation of government procurement rules with respect to services provides the opportunity to develop the position that human rights-based procurement conditions are consistent with WTO law. As well, the existing Government Procurement Agreement, which concerns trade in goods, should be interpreted so as to permit ethical purchasing policies by governments.
Not permitting members of the WTO to impose the kind of requirements on foreign suppliers that they routinely impose on domestic suppliers such as anti-discrimination requirements would amount to an obligation to favour foreign suppliers, which the GPA could not possibly be read as to entrench. Further, the public order exception in the GPA must be interpreted in light of the international law of human rights. Trade Policy Review: WTO member states are currently subject to a review process which examines their policies and practices in relation to their promotion of free trade.
This is inconsistent with the actual full objective of the review process, which is to review policies in their relation to the "functioning of the multilateral trading system". The objective of the trading system is not free trade as such, but rather "ensuring full employment", "optimal use of the world's resources" and "sustainable development".
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National trade policy and practice should be examined in relation to the achievement of these goals. Dispute Settlement: Consideration of the human rights impact of dispute settlement rulings would be facilitated by the acceptance of amicus briefs by panel and appellate body members. Secrecy of pleadings and oral argument in WTO dispute settlement, however, may limit the effectiveness of amicus participation, and these provisions of the Dispute Settlement Understanding should be revisited as soon as possible.
Global Governance: Interpretation of WTO law has not incorporated the expertise of other institutions governing the various regimes of international law. Nor has there been serious dialogue or interaction between the WTO as an institution and other relevant international institutions. However, the agreement establishing the WTO requires that this be the case.
The implementation of this obligation should be the subject of a formal review. Since the late s, the ascendency of market economics coupled with a revolution in information technology has accelerated the process of globalization while institutions of international governance have been unable or unwilling to catch up.
Privatization and the related phenomena of deregulation, structural adjustment and a myriad of new bilateral, regional and multilateral trade and investment agreements have proceeded without credible efforts to conceptually and practically address their impacts on legally protected human rights. This paper addresses the tensions and potential synergies between the two legal regimes governing trade and investment and human rights.
Trade and investment agreements, as well as the practices of international business, must be held accountable to existing human rights law.
The spirit of human rights law must frame the development of trade law if either is to achieve its goals. The ability of capital to move across borders with increasing ease in the era of globalization has implications for human rights. While human rights violations existed long before this period of rapid economic integration, the growing number of sectors covered by multilateral trade and investment agreements has set the stage for a new variety of human rights abuses which have not yet been suitably addressed.
1 - Examining critical perspectives on human rights: an introduction
Consider the example of Nigeria where in the last decade foreign oil companies and military governments have laid waste to vast tracts of land in the oil-producing areas and responded with chilling brutality when the Ogoni people sought to protect their fundamental rights. In several Asian countries and other emerging markets, businesses and governments have supported practices which violate the rights of workers with impunity through sweatshops and child, slave, unfree, and bonded labour.
At the same time, globalization has served to focus heightened attention on such practices in general, including abuses that existed before globalization but were often ignored.