The 'human rights approach' advocated by the UN High Commissioner for Human Rights and by the International Labour Organization: Is it relevant for WTO law and policy?

Journal of International Economic Law

Volumn 7, Issue 3, 2004, Pages 605-627

  Petersmann, Ernst Ulrich ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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EID: 4544320656     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/7.3.605     Document Type: Conference Paper

References (60)

1. This quotation from the Universal Declaration of Human Rights (UDHR) was confirmed, e.g., in the 1966 UN Covenants on Civil and Political Rights and Economic, Social and Cultural Human Rights as well as in the 1989 UN Convention on the Rights of the Child ratified by more than 190 states.
2. The Vienna Declaration was adopted by consensus and is reproduced in: The United Nations and Human Rights 1945-1995, UN 1995, at 450.
3. In the Barcelona Traction judgment (ICJ Reports 1970, 32) and the Nicaragua judgment (ICJ Reports 1986, 114), the International Court of Justice (ICJ) has recognized that human rights constitute not only individual rights but also, in case of universally recognized human rights, erga omnes obligations of governments based on the UN Charter, human rights treaties, and general international law. The ICJ has also recognized (e.g. in its Advisory Opinion of 25 March 1951 on WHO v Egypt) the applicability of general international law rules to intergovernmental organizations. The European Court of Justice and the European Court of Human Rights have likewise recognized that general international law and human rights may be binding also on intergovernmental organizations.
4. See, e.g., the references to human rights in the EC and EU Treaties, in some 50 bilateral treaties concluded by the EC with third countries, the Cotonou Agreement among more than 90 countries in Europe, Africa, the Caribbean, and the Pacific, and in the 2001 Quebec Ministerial Declaration on a Free Trade Area of the Americas among 34 North, Central, and South American states.
5. For a discussion of the proposal by EU trade commissioner Pascal Lamy to improve global governance - also in the WTO - by new forms of 'cosmopolitics' see S. Charnovitz, 'WTO Cosmopolitics', 34 New York University Journal of International Law and Politics (2002) 299-354.
6. The proposals by the UNHCHR are described and discussed in section III below.
7. WTO Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001, WT/MIN(01)/DEC/2. The follow-up WTO Decision of 30 August 2003 on the implementation of paragraph 6 (compulsory licensing for exports of medicines to countries without manufacturing capacity for such products) of the Declaration on the TRIPS Agreement and Public Health likewise avoids references to the human right to health.
8. It is only in the context of the right to work (Article 6) that the ICESCR of 1966 refers to the need for government policies promoting 'development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual' (Article 6:2).
9. Article 31:1 and 31:3(c) of the 1969 Vienna Convention on the Law of Treaties which, according to WTO jurisprudence, reflect customary rules of international law.
10. See above n 3 and related text.
11. UNCESCR, General Comment No. 12 on the Human Right to Food, E/C.12/1999/5.
12. Cf. WTO document G/AG/NG/W/36/Rev.1 of 9 November 2000. Certain adverse impacts of liberalization of agricultural trade on vulnerable groups in less-developed countries are documented in the FAO study on Agriculture, Trade and Food Security: Issues and Options in the WTO Negotiations from the Perspective of Developing Countries, FAO 2000.
13. Cf. the recent EC Court judgment of 12 June 2003, case C-112/2000 Schmidberger v Austria, in which the EC Court accepted the invocation of freedom of expression (Article 10 ECHR) and freedom of assembly (Article 11 ECHR) as justification for a demonstration blocking Austrian motorways and restricting free movement of goods inside the EC (Article 28 EC).
14. See, e.g., the judgment of the European Court of Human Rights of 25 August 1998 in Hertel v Switzerland (published in Reports 1998-VI) which concluded that restrictions on freedom of speech imposed under the Swiss Unfair Competition Law, and upheld by Swiss courts, were in violation of Article 10 of the European Convention on Human Rights.
15. E.g. by increasing the quantity, quality, and variety of low-priced goods and services, promoting competition, productivity, and economic efficiency.
16. See Human Development Report 2000: Human Rights and Human Development, UNDP 2000.
17. Cf., e.g., E. U. Petersmann, 'Constitutional Economics, Human Rights and the Future of the WTO', 58 Aussenwirtschaft (Swiss Review of International Economic Relations) (2003) 49-91.
18. See section V below.
19. On this European concept of a 'social market economy' see, e.g., W. Röpke, A Humane Economy. The Social Framework of the Free Market (1998).
20. See, e.g., above n 2 and below nn 22-27.
21. 'Globalization and its impact on the full enjoyment of human rights', ECOSOC document E/CN.4/ Sub.2/2000/12 of 15 June 2000, at para 15. Apart from a reference to patents and their possibly adverse effects on pharmaceutical prices (depending on the competition, patent, and social laws of the countries concerned), the report nowhere identifies conflicts between WTO rules and human rights.
22. The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, E/CN.4/Sub.2/2001/13 (27 June 2001).
23. Globalization and its Impact on the Full Enjoyment of Human Rights, E/CN.4/2002/54 (15 January 2002).
24. Liberalization of Trade in Services and Human Rights, E/CN.4/Sub.2/2002/9 (18 June 2002).
25. Human Rights, Trade and Investment, E/CN.4/Sub.2/2003/9 (2 July 2003)
26. Analytical study of the High Commissioner for Human Rights on the fundamental principle of non-discrimination in the context of globalization, E/CN.4/2004/40 (15 January 2004).
27. The right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Report by the Special Rapporteur Paul Hunt on his Mission to the WTO, E/CN.4/2004/49/ Add.1 (1 March 2004).
28. Document E/CNA/Sub.2/2002/9, p 2.
29. The report on TRIPS (above n 22) notes that 'the commercial motivation of IPRs means that research is directed, first and foremost, towards "profitable" disease. Diseases that predominantly affect people in poorer countries - in particular tuberculosis and malaria - still remain relatively under-researched' ... 'questions remain as to whether the patent system will ensure investment for medicines needed by the poor. Of the 1,223 new chemical entities developed between 1975 and 1996, only 11 were for the treatment of tropical disease' (para 38).
30. National policy autonomy is safeguarded, e.g. by GATT Articles III, XVI and XXVIII, GATS Articles VI and XIX, Articles 8, 30, 31, 40 of the TRIPS Agreement and by the numerous WTO 'exceptions' and safeguard clauses.
31. This 'fundamental principle' of human rights law is emphasized in the recent report for the UN Commission on Human Rights on The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, E/CN.4/2003/58 of 13 February 2003, para 8.
32. See above n 16.
33. For a detailed explanation of why human rights, non-discriminatory markets, and consumer-driven competition serve complementary functions, and on the differences between a 'human rights approach' focusing on 'basic needs' and a broader 'constitutional approach' protecting equal constitutional rights beyond the basic needs of citizens, see Petersmann (above n 17).
34. ILO Declaration on Fundamental Principles and Rights at Work, ILO 1998, at 7.
35. E.g. the 1989 UN Convention on the Rights of the Child (ratified by more than 190 states) and the 1993 Vienna Declaration which recognizes, in para 1, that the universal nature of (human) rights and freedoms is beyond question'. Many recent studies confirm that the values underlying human rights (such as respect for human dignity, life, freedom, equality, property, rule of law, procedural justice) can be found in all major cultures and religions.
36. Cf., e.g., Article 4 of the ICCPR, Article 15 of the European Convention on Human Rights.
37. For detailed references to state practice see I. Seiderman, Hierarchy in International Law (2001).
38. On the 'margin of appreciation' doctrine in the case-law of the European Court of Human Rights see, e.g., H. C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, 1996. On the similar 'balancing principles' developed in WTO jurisprudence relating, e.g. to GATT Article XX, see E. U. Petersmann, 'Human Rights and the Law of the WTO', 37 Journal of World Trade (2003) 241-81.
39. On the 'margin of appreciation' doctrine in the case-law of the European Court of Human Rights see, e.g., H. C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, 1996. On the similar 'balancing principles' developed in WTO jurisprudence relating, e.g. to GATT Article XX, see E. U. Petersmann, 'Human Rights and the Law of the WTO', 37 Journal of World Trade (2003) 241-81.
40. E/CN.4/2004/49/Add.1 (above n 27), para 9.
41. On the diverse constitutional traditions protecting social welfare rights see, e.g., V. C. Jackson and M. Tushnet, Comparative Constitutional Law (1999), chapter XII.
42. A more systematic examination of the human rights dimensions of WTO rules and policies would have to distinguish between the different kinds of trade policy measures (e.g. import restrictions, non-discriminatory economic regulation, subsidies, trade liberalization, special and differential treatment of developing countries) and among protection of civil, political, economic, social, cultural, and 'third generation' human rights at home and abroad, at national and international levels. It would also have to clarify the UN human rights concepts of 'human dignity', 'inalienability' and 'indivisibility' of human rights and their controversial nature as ius cogens, erga omnes obligations and general international legal obligations under UN law. The very limited lists of ius cogens human rights proposed by US authors (cf. Third Restatement of the Foreign Relations Law of the US, American Law Institute 1990, section 701) need to be updated in the light of the expanding UN consensus on 'inalienable' human rights such as the human right to health, now incorporated in over 100 national constitutions as well as in worldwide treaties like the UN Convention on the Rights of the Child, ratified by almost all states except the US.
43. E/CN.4/Sub.2/2003/4, at para 66.
44. The Charter is reproduced in: Official Journal of the EC C 364/1 of 18 December 2000.
45. Cf. D. Spielmann, 'Human Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts, Inconsistencies and Complementarities', in P. Alston, M., Bustelo, and J. Heenan (eds), The EU and Human Rights (1999), 757-80.
46. In Internationale Handelsgesellschaft (Case 11/70, ECR 1970, 1125, 1134), the ECJ held that respect for human rights forms an integral part of the general principles of Community law: 'the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community' (paras 3-4).
47. Cf. E. U. Petersmann, 'Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution', in C. Breining and T. Cottier (eds), International Trade and Human Rights (2004). All UN human rights conventions proceed, like EU human rights law, from 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family (as) foundation of freedom, justice and peace in the world'. The text of Article 1 of the UDHR suggests to define 'human dignity' by the moral and rational autonomy and responsibility of human beings to exercise one's freedom in a 'just' manner respecting maximum equal legal freedom of all others and treating individuals as legal subjects entitled to personal self-development in dignity. From such a 'Kantian perspective', freedom of profession and freedom to trade the fruits of one's labor in exchange for the goods and services needed for personal self-development are no less rooted in dignity and of 'existential importance' than personal freedoms in non-economic areas.
48. The UNHCHR reports emphasize that 'trade liberalization will create losers even in the long run and that trade reforms could exacerbate poverty temporarily. Human rights law concerns itself in particular with the situation of the individuals and groups who might suffer during the reform process' (E/CN.4/2002/54, para 34).
49. Cf., e.g., E. U. Petersmann, 'The WTO Constitution and Human Rights', 3 JIEL (2000) 19-25.
50. For a detailed analysis see - in addition to the above-mentioned reports by the UNHCHR - Petersmann (n 38 above) and G. Marceau, 'WTO Dispute Settlement and Human Rights', 13 European Journal of International Law (2002) 753-813.
51. The UNHCHR report on the interaction between the principle of non-discrimination in human rights and trade law (see n 26) identifies various common elements (e.g. no requirement to demonstrate discriminatory intention, applicability to both de jure and de facto discrimination, justifiability of differential treatment) and suggests that the 'flexibility' of WTO rules can avoid legal conflicts.
52. Whereas human rights lawyers tend to treat the 'right to liberty' (Article 3 UDHR) and 'economic freedoms' (Article 6 ICESCR) as separate rights with separate functions, European constitutional law (e.g. in Germany, Switzerland, EC law) guarantees economic liberties more broadly in order to protect human dignity (cf. Articles II-1, 15, 16 of the Draft Treaty Establishing a Constitution for Europe, EC 2003).
53. The 'right to own property' is protected in Article 17 of the UDHR and in regional human rights conventions (e.g. Protocol I to the ECHR), but omitted from UN human rights covenants except for the 'author rights' mentioned in Article 15 ICESCR. Intellectual property rights are based on legislation and limited in time (cf., e.g., Article 33 of the TRIPS Agreement relating to 20 years of patent protection).
54. The UNHCHR report on the GATS (above n 24) refers to the 'Cochabamba case' in Bolivia where 'the city's water system was liberalized to the subsidiary of a foreign service provider, leading to price increases of more than 35 per cent. This resulted in mass demonstrations and strike action that led the Government to reverse the decision to liberalize the sector and restore public ownership.' The report does not claim that the privatization was part of a WTO commitment (GATS does not mandate privatization of essential services), or that WTO law may not be flexible enough to protect essential services (cf., e.g., Articles X, XIV, and XXI of GATS).
55. In UN practice, the 'right to development' and the corresponding government obligations have been defined in terms of realization of all human rights (cf. UN General Assembly Declaration 41/128 of 4 December 1986 on the 'Right to Development').
56. See e.g. the numerous references to 'judicial economy' in the recently adopted WTO Panel report on Mexico - Measures Affecting Telecommunications Services (WT/DS204/R of 2 April 2004).
57. On the emerging 'human right to democratic governance' see, e.g., T. M. Franck, 'The Emerging Right to Democratic Governance', 86 American Journal of International Law (AJIL) (1992) 46-91; E. Stein, 'International Integration and Democracy: No Love at First Sight', 95 AJIL (2001) 489-532. See also the UNHCHR report on the expert seminar on the interdependence between democracy and human rights (E/CN.4/2003/59).
58. On the emerging 'human right to democratic governance' see, e.g., T. M. Franck, 'The Emerging Right to Democratic Governance', 86 American Journal of International Law (AJIL) (1992) 46-91; E. Stein, 'International Integration and Democracy: No Love at First Sight', 95 AJIL (2001) 489-532. See also the UNHCHR report on the expert seminar on the interdependence between democracy and human rights (E/CN.4/2003/59).
59. On the important distinction between liberal and 'illiberal' democracy, and on the need for restraining popular majority politics by equal basic rights and by other general constitutional constraints see F. Zakaria, The Future of Freedom. Illiberal Democracy at Home and Abroad (2003).
60. See, e.g., the recent 'Waiver concerning Kimberley Process Certification Scheme for Rough Diamonds' (WT/L/518) of 15 May 2003 which refers, in its Preamble, to 'gross human rights violations' in 'conflicts fuelled by the trade in conflict diamonds.'