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Introduction to the Study of Linkages
This book seeks to explore a relatively untrodden and difficult path in legal scholarship. It seeks to unravel the complex muddle created by the myriads of interactions between the multilateral trade regime and the international human rights regime and bring some order back to this scattered field of study. That multilateral trade has some adverse impacts on human rights is almost trite today. Contemporary scholarship in this field, however, suffers from a somewhat hollow core. It lacks a theory. It is characterised either by isolated analyses of individual human rights issues arising due to linkages with the multilateral trading system (MTS) or by a collective dealing of all human rights issues affected by trade as if they all deserve a common solution. Unfortunately, neither of these extremes and whatever falls within has been able to offer any rational manner by which one can make sense of the complex ways MTS impacts human rights. This field of study is evidently in search of a âgolden threadâ that can tie together all the splinters. It is in search of a comprehensive theoretical framework that can coherently connect the normative elements of the different linkage-issues and yet leave room for different solutions to those issues from a policy perspective. This book, thus, seeks to fill that void by offering a new framework â conceived of as the âgovernance spaceâ framework â for analysing the linkages, which can in turn form the foundation for developing a human rights approach, specifically a right to development (RtD) approach, to resolving the tensions between the two regimes.
The context for understanding linkages
The linkages between human rights and multilateral trade have been a subject of considerable debate since the last two decades.1 The primary cause for the incessant fuelling of these debates relates to the sudden intrusion, led by the emergence of the World Trade Organisation (WTO) in 1995 as the nodal agency for multilateral trade, into many issues which were not hitherto considered to be normally in the domain of trade policy (Sampson 2005: 4). These included rules regulating such new areas as intellectual property rights, sanitary and phyto-sanitary measures and trade in services. Unsurprisingly, this intrusion has over the last few years brought to limelight various tensions caused by overlapping international obligations of States under different legal regimes and international fora. Human rights, in particular, merit special concern, inasmuch as States have undertaken through numerous international treaties under the auspices of the United Nations (UN) and other regional bodies to respect, protect and fulfil human rights. The International Covenant on Economic, Social and Cultural Rights (ICESCR), in particular, requires States to pursue policies and strategies aimed at the realisation for every individual of the right to food, health, shelter, education, work and social security. It is imperative that in the face of these human rights obligations, MTS, its policies and rules need to be developed in a manner which would, at the very least, not be in violation of the former and, in fact, would further them. All members of the WTO are bound by at least one core international human rights treaty (Dine and Fagan 2006: 228) and are generally bound by universal human rights obligations as part of Customary International Law (CIL) (Sohn 1982: 2â9; Meron 1989: 93; Henkin 1990: 19) or as part of General Principles of Law (Simma and Alston 1989: 102â8; de Schutter 2014: 66â71).2 States, thus, face the clear responsibility of adhering to their human rights commitments while operating at the WTO.3
However, no sooner did the WTO come into existence that it quickly became clear that MTS did not necessarily share a harmonious relationship with human rights. The WTO policies and rules began coming under some serious hammering from scholars (Garcia 1999; Tandon 1999; Klein 2000; Gathii 2001; Gray 2002; Stiglitz 2002) as well as civil society organisations (International Federation for Human Rights 1999; Oxfam 2002; Human Rights Caucus 2005) with respect to their human rights impacts. An early report emerging from the UN Economic and Social Council (ECOSOC) unceremoniously branded the WTO as a âveritable nightmareâ for human rights of citizens in the third world (ECOSOC 2000: Para. 15), reportedly leading to an official protest letter being shot off by the WTO to the then UN High Commissioner for Human Rights, Mary Robinson (Institute for Agriculture and Trade Policy 2000). However, the most explicit manifestation of the backlash against economic globalisation spurred by the free trade agenda of the WTO came on 30 November 1999, through the so-called Battle of Seattle, where more than 40,000 people protested against the WTOâs Ministerial Conference (Yuen, Burton-Rose and Katsiaficas 2001; Smith 2002; Fominaya 2014: 54â59). As if to reinforce an unfortunate stereotype, police retaliated violently against the protesters, and this response came to be epitomised in popular imagination as representative of a supposed antagonism which WTO nurtures towards human rights.4
The historical context for the tensions between the two regimes of human rights and multilateral trade stems from the vision of the victors of World War II (WWII) on how the post-war global framework ought to look like. The âscourge of warâ evidenced by the world, both during and in the immediate aftermath of WWII, witnessed the prelude to a âNew World Orderâ, which was to rest on four pillars â peace and human rights, on the one hand, and trade and finance, on the other (Possel 2008: 192). While the pillars of peace and human rights were necessitated in response to the Holocaust and the catastrophic devastation of the war itself, the pillars of trade and finance were deemed essential as part of the new schema in order to avoid a repetition of the economic instability prevalent during the Great Depression of the 1930s, accompanied by the beggar-thy-neighbour policies which had led to both the emergence and the amplification of WWII (Hoekman and Kostecki 1995: 12; Harrison 2007: 7). The first two pillars of peace and human rights were conceived to be developed and implemented by a global inter-governmental organisation â the UN. In order to develop and implement the other pillar of finance, the Bretton Woods Institutions, including the International Monetary Fund (IMF) and the World Bank (WB), were established in 1944 (Possel 2008: 192). With respect to the fourth pillar of trade, world leaders negotiated the âHavana Charter for an International Trade Organisationâ in 1948 (hereafter, Havana Charter 1948). However, the planned International Trade Organisation (ITO) never saw the light of the day due to refusal by the US to ratify it, despite having taken the lead in its negotiations (Narlikar 2005: 11; Kinley 2009: 39). What did come into effect was the General Agreement on Tariffs and Trade, 1947 (hereafter, GATT 1947), which operated as a de facto trade institution (mostly ad hoc, and without a well-defined institutional structure) until it metamorphosed into the WTO in 1994 by virtue of the Marrakesh Agreement Establishing the World Trade Organisation (hereafter, Marrakesh Agreement 1994). It is for this reason that the UN and the WTO, despite sharing some common objectives (although, obviously, not all), have from the outset adopted different approaches in their functioning â the human rightsâcentric approach of the UN and the economic approach of the WTO. This difference in approaches of these two institutions since their inception gives us a very good indication of why the two legal regimes of multilateral trade and human rights have developed more or less independently from one another, as against an interdependent and integrated system (Konstantinov 2009: 317â21).
A brief overview of the approach of the UN
Bare perusal of the Charter of the United Nations (hereafter, UN Charter 1945) reveals the importance placed by its drafters on the recognition, protection and advancement of human rights as one of the primary institutional objectives of the UN. The Preamble proclaims that the peoples of the UN are determined âto reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and smallâ (UN Charter 1945: Preamble, Para. 2) and âto promote social progress and better standards of life in larger freedomâ (UN Charter 1945: Preamble, Para. 4). Similarly, one of the fundamental purposes of the UN is âto achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religionâ (UN Charter 1945: Article 1, Para. 3). The Charter also specifically mandates the UN as an organisation to promote âuniversal respect for, and observance of, human rights and fundamental freedomsâ (UN Charter 1945: Article 55(c)).
In order to operationalise these mandates, the UN Charter, among other things, required the ECOSOC to establish a Commission on Human Rights (UN Charter 1945: Article 68), whose work led to the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly (UNGA) in 1948 (UNGA 1948). The Preamble of the Declaration begins with the solemn recognition by member States that the âinherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the worldâ (UNGA 1948: Preamble, Para. 1). It merely declares what is inherently existing in human beings, just by virtue of their human embodiment.
The UDHR was followed by the adoption of two separate legally binding human rights Covenants on 16 December 1966, namely the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR. These two Covenants along with the UDHR are today collectively termed as the âInternational Bill of Human Rightsâ as observed by the United Nations Office of the High Commissioner for Human Rights (hereafter, OHCHR) (OHCHR 1996) and, over time, have together come to constitute the bedrock of the international human rights system under the UN.
This working of the UN human rights mechanism is implemented through a comprehensive three-pronged system comprising the Charter-based monitoring bodies, the Treaty-based monitoring bodies and the OHCHR.5 The Charter-based bodies include the principal organs of the UN and the subsidiary bodies created by those organs, including the Human Rights Council (UNHRC) with its elaborate Special Procedures consisting of Special Rapporteurs and Independent Experts, among other processes. The Treaty-based bodies, on the other hand, consist of all the Committees established under the nine âcoreâ human rights treaties, which, apart from the ICCPR and ICESCR, include the Convention Against Torture (1984), International Convention for Elimination of All Forms of Racial Discrimination (1966), Convention for Elimination of Discrimination against Women (1979), Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of All Migrant Workers (1990), Convention on the Rights of Persons with Disabilities (2006) and the International Convention for the Protection of All Persons from Enforced Disappearance (2006). The OHCHR, which forms part of the UN Secretariat, coordinates the human rights work of the UN and provides support to the various Charter and Treaty bodies. Additionally, the various UN organs and specialised agencies have also incorporated human rights objectives as the foundational purpose of their working.6
Thus, it is clear from what has been synoptically culled out earlier that the UN as an institution is mandated to adopt a predominantly human rightsâcentric approach to its functioning and, in compliance thereof, has established a relatively spread-out web of human rights mechanisms.
A brief overview of the approach of the WTO
In contrast, the historical events leading to the emergence of the WTO as an institution explain why it has adopted a predominantly economic approach to its functioning. As noted earlier, the ITO which was supposed to be created as the nodal organisation for regulating international trade at the end of WWII, itself remained stillborn. The 23 countries â 12 developed and 11 developing â involved in the negotiations for exchange of tariff reductions were anxious that implementation of liberalisation not be conditional upon the conclusion of the ITO talks. As a result, they adopted the GATT 1947 as an interim agreement (Hoekman and Kostecki 2001: 38). With the ITO never coming into force, GATT 1947 continued to operate without having an institutional structure, and, over the four decades of its regime, it expanded considerably with many more countries becoming a part of it. However, it also became increasingly fragmented as âside agreementsâ or codes were negotiated between subsets of countries (Hoekman and Kostecki 2001: 38). Many new supplementary provisions and special arrangements were added to GATT 1947, yet some important trading sectors like agriculture, textiles and clothing and services were not made subject to MTS.
During the Uruguay Round of negotiations in the 1980s, States deliberated upon a more comprehensive global trading regime bearing an institutional structure. Thus, the WTO was created in order to substitute the hitherto operational GATT 1947. Unlike the latter, the WTO encompassed not only liberalisation of trade in goods (GATT 1947 became part and parcel of General Agreement on Tariffs and Trade 1994; hereafter, GATT 1994) but also trade in services (General Agreement on Trade in Services 1994; hereafter, GATS 1994) and established rules for regulating trade-related aspects of intellectual property rights (Agreement on Trade-Related Aspects of Intellectual Property Rights 1994; hereafter, TRIPS 1994), technical barriers to trade (Agreement on Technical Barriers to Trade 1994; hereafter, TBT 1994), sanitary and phyto-sanitary measures (Agreement on the Application of Sanitary and Phyto-Sanitary Measures; hereafter, SPS 1994), among others. It also created a new and fairly sophisticated system for settlement of multilateral trade disputes (Understanding on Rules and Procedures Governing the Settlement of Disputes 1994; hereafter, DSU 1994) and for periodic review of membersâ trade policies (Agreement on Trade Policy Review Mechanism 1994). Pertinently, the WTO was not made a part of the UN system and was conceived to operate as an independent international institution.7
The WTO proclaims that the economic case for an open trading system based on multilaterally agreed rules rests largely on âcommercial common senseâ but is also supported by evidence emerging from the experience of world trade and economic growth since WWII (WTO 2015a: 13). Thus, it points out that tariffs on industrial products have fallen steeply and now average less than 5% in industrial countries. It also points out that during the first 25 years after WWII, world economic growth averaged about 5% per year, a high rate that was partly a consequence of lower trade barriers. It further observes that world trade grew even faster, averaging about 8% during the period.
The âcommercial common senseâ case for liberalisation of trade internalised by the WTO finds its genesis in the economic theory of âcomparative advantageâ propounded by the classical economist David Ricardo (1817). In its basic form, it simply means that there are gains from trade associated with minimising opportunity costs through the division of labour, that is specialisation (Hoekman and Kostecki 2001: 33). An illustration at the international level may best explain the theoretical underpinnings of comparative advantage. Suppose that the US is better than Costa Rica at making automobiles, while Costa Rica is better than the US at producing coffee. It is clear that both would benefit if the US specialised in automobiles and sold them to Costa Rica, while Costa Rica specialised in producing coffee and traded it with the US. Now, this is a case where both the US and Costa Rica have absolute advantage over each other in the respective products.8 But what if we assume now that Costa Rica is worse than the US at producing both automobiles and coffee? The theory of comparative advantage states that even in such situation Costa Rica must specialise and produce in what it comparatively does best, which is producing coffee even if it is not as efficient as the US in doing so, and the US must still specialise in what it comparatively does best, which is manufacturing automobiles. This way both can trade in these products and benefit from such international trade.9 The comparison here is between Costa Ricaâs relative efficiency in producing coffee versus producing automobiles, compared to the USâs relative efficiency in producing the same products. The theory of comparative advantage builds on the proposition that a country does not have to be best at anything to gain from trade (WTO 2015a: 14). It must simply concentrate and invest in what it does better.
This theory can, however, work only if the conditions necessary for ensuring the effective use of comparative advantage of States are guaranteed. Among other things, these conditions require that States enter into reciprocal commitments to reduce trade barriers. For instance, if the US is to enjoy from its comparative advantage in automobiles in the Costa Rican market, it is important that Costa Rica does not create trade barriers which inhibit the access by the US producers to its markets. Similarly, Costa Rica can benefit from its comparative advantage in coffee only if the US allows easy access to its markets to Costa Rican coffee producers. The theory, therefore, suggests that countries desiring to maximise their wealth must not impose trade barriers and that policies which allow the unrestricted f...
