WTO and Human Rights

by Cesare Romano

The reason I did not blog in the past few days is that I have been stuck in a most interesting discussion about whether there can be any place for human rights considerations in the WTO (see below Vietnam Wins Invitation to Join the WTO and The WTO… Maybe). I know, it is a very old discussion, but I am always amazed by it. Come down, have a look and join in either side of the debate!

http://opiniojuris.org/2006/10/27/wto-and-human-rights/

14 Responses

  1. I’ll be joining anon, as promised, but after dinner and the World Series game. I’ll try to to carve out a third side as it were (relying largely on work of Ernst-Ulrich Petersmann)….

  2. Cesare,

    First, apologies for my belated response to your question(s).

    As I lack your expertise here, I trust you’ll forgive me if I rely on others for my case in favor of admitting Vietnam into the WTO. My comments are beholden largely to the material found in one book: Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi, eds., Human Rights and International Trade (New York: Oxford University Press, 2005). In particular, I agree with the bulk of Ernst-Ulrich Petersmann’s contribution to that volume. While he is not addressing the specific topic of our debate, my argument for admitting Vietnam to the WTO can call upon the bulk of his treatment for support. Most of the quoted material will be from this book (and in the interest of time, I’ll avoid any citations).

    I agree that in many respects, Vietnam’s human rights record is appalling, and on that score they are in large company. It is hardly fair to subject Vietnam to strictures with regard to admittance that have not been previously invoked with other countries possessing less than exemplary human rights records, so I would say that it is indeed too late to begin with Vietnam, and they would rightly feel they were being unjustifiably singled out in any attempt to use admittance to the WTO itself as leverage for human rights compliance. In any case, there’s no reason to hope for success in using this stick method, particularly in light of the fact that, as a WTO member, there will be other (and far less blunt but more effective) portals for pressuring compliance with human rights laws and standards that would seem to have greater prospect for success. Indeed, rather than a ‘carrot’ or ‘stick’ option, I would call this the ‘carrot stick’ option, as it artfully combines trade liberalization and enhanced human welfare with concern for the concrete implementation of human rights in a manner that is procedurally transparent and fair, not subject to accusations of bias and force or recriminations with regard to motivations and purpose.

    It simply is not the case that ‘brute economics and money is the only thing that is kept in consideration in the WTO,’ or else one could not, for example, make sense of the recent Doha round of negotiations (I won’t make a list of relevant titles, recalling that you’ve done your homework). Such an assumption forecloses a meaningful debate with those who clearly evidence a concern beyond ‘brute economics and money,’ as is the case with many of those working in the field of international economics law and the WTO (see, for instance, not a few of the scholars and practitioners blogging over at the International Economic Law and Policy Blog). This is a rather simple-minded take on the WTO and trade liberalization in general. No less than the foremost and keenest critic of capitalism, Karl Marx, well appreciated the virtues of free trade, indeed, he ‘was a champion of free trade,’ and with good reason.

    I think it is true that ‘both, trade regulation and human rights protection, aspire in their own ways after welfare in the pursuit of human happiness [or, perhaps better: ‘flourishing’].’

    One might also concede that ‘the debate on trade and human rights is complex.’

    Would you agree that human rights ‘provide benchmarks by which the output legitimacy of the international trading system—increasing human welfare—is ultimately assessed’? From such a perspective, ‘trade is mostly a means to a higher end defined in human rights terms. Conversely, human rights are important for the functioning of the multilateral trading system. This is true for both civil and political rights (e.g., free speech and a working democracy) as well as for social and economic rights (e.g., rights to food and health, and the basic safety nets of the welfare state).’

    Progressive liberalization of the international trading system, expressed thus far principally through the WTO, support welfare goals that can be expressed in terms of human rights. Therefore, we can and should construe provisions of WTO law in accordance with human rights.

    Trade restrictions can be imposed for non-economic reasons on the basis of UN Security Council sanctions in accordance with Article XXI GATT and ‘similar provisions in other agreements.’ Human rights are further protected under (the meta-norms of) jus cogens, which I understand to oblige states (obligations erga omnes) to take unilateral action when there are clear violations of same.

    Nothing precludes the WTO from asking of its members to renew their commitment to ‘respect universal human rights, [to] support the need for harnessing complementary functions of WTO rules and human rights, and require WTO bodies to take into account human rights obligations as relevant legal context for the interpretation of WTO rules.’

    For instance, violations of core labour standards (or ‘labour rights as human rights’) or of human rights in general, could be ‘taken into consideration as a product and process method of goods and services under Article III GATT and Article XVII GATS. More specifically, ‘the “like product” analysis in defining whether two products are similar enough so that there can be trade discrimination in violation of WTO rules offers the potential to take into account human rights concerns as such concerns may be reflected with different process and production methods , thereby potentially making, for example, footballs stitched with child labour “unlike” other footballs.’

    There are yet other legal portals for human rights implementation and protection: ‘In light of the Appellate Body report on Conditions for Granting Tariff Preferences to Developing Countries , an argument can be brought forward that members are entitled to condition their trade preferences for developing countries on compliance with universally recognized human rights.’

    In addition: ‘the waiver of WTO obligations under Article IX: 3 of the Marrakesh Agreement Establishing the WTO provides another portal for human rights,’ as evidence in the waiver granted to WTO members who are participants in the Kimberly Process combating conflict diamonds.

    Human rights may also ‘affect the application of the TRIPS Agreement. While the rights to life and health are well recognized in human rights law, the Doha Declaration has reinforced the right to protect public health in the TRIPS context, and the Appellate Body has recognized that considerations relating to public health may play an important role in the application of WTO rules.’

    That said, I think Petersmann is right to argue that ‘human life in dignity, liberty, and social responsibility requires legal protection of individual freedom to participate in markets (e.g., as dialogues about values, decentralized information, coordination and discovery mechanisms) and to exchange the fruits of one’s labour for scarce goods and services needed for personal self-development. Specialization (e.g., in families, societies) and exchange are among the most basic human activities. While some market freedoms have a “price” rather than “dignity,” others are of existential importance for individual, social, and democratic self-development. Human rights cannot be effectively protected without due regard to the economic insight that personal freedom is not only a fundamental moral and constitutional principle, but also the most important instrument for satisfying human needs. [….] Outside the jus cogens nature of the inalienable core of human rights, general international law does not recognize a legal hierarchy of human rights law over international trade agreements. WTO rules, like the EC’s common market rules, are multilateral in form and substance and protect important human rights values (such as freedom, non-discrimination, peaceful cooperation, rule of law); they are not of a generally inferior legal rank compared with environmental and human rights agreements. [….] The welfare of virtually every country depends on liberal trade rules as the legal basis for creating the welfare needed to fulfill human rights (e.g., of access to essential medicines at affordable prices) and satisfy consumer demand (e.g., for imported food). [….] Yet, even though WTO rule may be of essential importance for realizing human rights (such as individual access to essential food, education, medicines, freedom of profession), the human rights dimension of trade rules are not explicitly addressed in WTO law. The Preamble of the WTO Agreement defines the objectives of the WTO in terms of “raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of trade in goods and services, while allowing the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment.” Many other WTO rules recognize that the objectives extend far beyond economics.’ [….]

    ‘WTO law does not explicitly refer to human rights, but must be construed in conformity with the obligation of all WTO Members to respect and protect universally recognized human rights.’

    Well, that’s it for now. This should suffice for getting across the point the admitting Vietnam into the WTO is not tantamount to ignoring, disrespecting or subverting human rights norms and laws, and there is nothing at all contradictory, if we follow Petersmann’s approach (only a snippet of which I’ve conveyed here), in supporting the WTO as part of a larger, abiding and full-fledged commitment to universal human rights.

  3. Addendum: Sometimes it may be the case that we need to take what appears to be a step backwards: admitting Vietnam into the WTO despite its comparative human rights record, in order to, eventually, take two steps forward: utilize WTO trade law and mechanisms to push and prod member states to recognize human rights….

  4. How we are going to “utilize WTO trade law and mechanisms to push and prod member states to recognize human rights” it is not clear to me. Once a state is in, human rights considerations have no place, for they are nowhere to be seen in the WTO agreements (unless, you really go out of your way to contrue in this way the allowed exceptions).

    ‘WTO law does not explicitly refer to human rights, but must be construed in conformity with the obligation of all WTO Members to respect and protect universally recognized human rights”.

    First, letting international law other than what provided for in the agreement come into play is a hugely debated issue.

    Second, I still have to see human righst considerations prevail over trade at the WTO. I cannot recall one single case where that was squarely the case. I am glad Petersmann points out how the trick can be done in theory, but first Petersmann is notorously in a minority position on this, and second I haven’t seen that happen in the real world of WTO dispute settlement in ten years (‘In light of the Appellate Body report on Conditions for Granting Tariff Preferences to Developing Countries , an argument can be brought forward that members are entitled to condition their trade preferences for developing countries on compliance with universally recognized human rights.’ That is what Petersmann reads in it, but unfortnately he is not a decision-maker at the WTO).

    Patrick, those “human rights portals” are decoys. Try knocking at one of those portals and see if they open…. Try slamming a 100% tariff on die cast toys coming from China because they have been manufactured in prisons by detainees who have not been paid. Or the same on footballs stitched by children in Pakistan. Then I really want to see how the WTO is going to react when China and Pakistan claim that their “benefits have been impaired”.

    I agree that letting Vietnam out now would be a difficult to justify discrimination considering we have China, Cuba or Saudi Arabia already in, but as I said the mistake was letting in countries with a bad human rights record in the first place. We could have used the carrot (stickcarrot carrot stick or whatever) far better and we gave that option up far too soon.

  5. Thanks for the specifics about what we should tell Vietnam to change in order to gain admittance to the WTO. In your view, what are the chances they would make the changes in order to join?

  6. Good. I think they are close to the tipping point. Remaining a mono-party communist style regime is not easy. It is difficult to sustain politically, economically, and also it creates problem at the regional level. Even China would like to see them “loosen up”.

    Something needs to be done to nudge them over, to give the “Doi Moi” a chance to become the Vietnamese glasnost. And the Vietnamese want really badly to be in. They can’t afford to stay out if they want to sustain the 6-8% GDP growth.

    WTO negotiations were the place to do that. Again, I say “were” because it seems diplomats at the WTO do not read anything other than the Financial Times and Forbes. It seems to me now Vietnam’s accession is a done deal.

    But it is not too late for Russia, and Iran….. Shall I write down the specifics for both?

  7. I’d be curious to see the specifics for Russia and Iran, too. But what I’m really interested in is some assessment of the likely response of these countries to such demands. What are the chances that they will make the changes in order to get in to the WTO?

    And here’s another question. Following your view, why not kick the current Members out if they don’t meet certain conditions?

  8. I am definitively in favor of kicking out human rights abusers currently in the WTO. I do not want the WTO to become like the UN, an organization that has only the entry door and no exit, no matter what you do. We already have a UN. No need to duplicate that.

    Again, I’d rather see the WTO as an EC but not tied to a specific region. A community of free trade, but also one that has some minimal values at its core (democracy and human rights).

    As to the specifics for Russia, Iran and any other coutry you pick (this game is getting stale), I’ll let you do the home work. Just log on to the website of the UN High Commissioner for Human Rights and dig out the latest reports of those countries, or the thematic rapporteurs, etc. For easier access go here: http://www.bayefsky.com/

    You still haven’t come up with a convincing reason why we should not discriminate human rights abusers other that a) if we discriminate one we have to discriminate all; b) we lose money.

    Again, to (a) I say, keep human rights abusers outside the WTO. Non-discrimiation for those inside. We can lawfully discriminate those outside. There is no reason why the WTO must be an universal organization like the UN other than (b) money. But, as I said, there are things that are really priceless. It is worth to pay the price.

  9. Cesare,

    If participation in the WTO increases the welfare and well-being, the quality of life, of the populations of member states, are you prepared to settle for a decline even possibly a precipitous drop in such welfare in states that are excluded? If Vietnam is excluded from the WTO and its economy stagnates, are you prepared to accpet the suffering among the masses that will result? After all, economies play some role I would think in meeeting the basic needs of their peoples, and there would seem to be a very real dimunition in human rights when people are poor and destitute (think of what happened with sanctions in pre-war Iraq: the elites did not suffer, but the bulk of the population surely did).

  10. Economies do play a role in meeeting the basic needs of peoples, and there would be a very real dimunition in human rights when people are poor and destitute.

    But human rights abuse is never a matter of economics, only of political decisions by governments. People in Iraq weren’t suffering becase the sanctions tightened the Iraqi economy. They were suffering because of Saddam. Again, first get your HR straight, then you’ll get rich. We do not have any guarantees that if we give them benefits first, they will mend their ways later. Countries can get richer and still have appalling HR records.

    If Vietnam stays out of the WTO I bet no one will die directly because of that. But it wont be able to grow as fast as it would by staying in. My bet is that the Vietnamese government will act rationally and do the right thing by letting go the grip (gradually, yes, but let go nonetheless).

    But let’s take an extreme situation: North Korea. We are not the ones diverting WFP aid away from the poor and to the North Korean army. It is Kim Il Jong. If that continues to happen, then we should stop sending food and see what happens (guess how a starved army behaves). Period. People will die? Yes. Am I proposing a devilish bargain (starve some now to save more later from an absurd regime)? Yes. But remember: it is not us who kill them. It is Kim Il Jong who killed them and will keep on killing them unless we stop him!

    Unless we get serious about human rights and we are ready to take the brunt and face squarely the hard dilemmas that they inevitably raise, we will never make any progress towards a world where HR are respected by most.

  11. For the record, so that you can understand better where I stand, I am for non-violence but I am no pacifist. I am a follower of Ghandi and MLK but not of Chamberlain. W. Churchill (policies towards India aside) is my hero. And no, this is not a contradiction.

  12. In response to your earlier posting, let me sum up my reasons for not using the WTO as a tool to promote human rights:

    1) It won’t work. The benefits of joining are not as great as peopel think, as the outstanding growth of China and Vietnam prior to joining show. Thus, they will not change their ways in order to join.

    2) If anyone will be affected by discriminatory polcies, it will be the poor in those countries, not the elite.

    3) Those with serious human rights violations make up a huge part of the world economy and population. They can do just fine without “us,” and may some day re-pay us with their own exclusionary policies.

    4) The whole idea seems very condescending, in the sense of civilized Western countries trying to force “backwards” people to adopt “our” ways. The notion of “human rights” seems to be ever changing, so who’s to say that what we believe today will be something we consider desirable tomorrow?

    5) I do think democracy is probably inevitable, so I agree it would be great if everyone would adopt it. But it will be more likely stick if they develop it themselves rather than have it thrust upon them.

    That’s all I can think of for now. I’ll add more if they come to me.

  13. ‘Gandhi’

    Incidentally, as regards Gandhi (and not as part of any debate, etc.), have you read Raghavan Iyer’s The Moral and Political Thought of Mahatma Gandhi (1st ed., 1973, 2nd ed., 1983)? It is the definitive study in this regard. One of Bhikhu Parekh’s works come in a close second. Iyer also edited a nice three volume collection of Gandhi’s works, which come to over 90 vols. as published (including correspondence, etc.)!

  14. As far as the debate goes, I’m largely with ‘wto lawyer,’ although I would not quite agree with no. 1 above, and would not endorse no. 4 (although I do believe there’s some truth to the ‘condescension’ part but think the understanding of human rights is muddled).

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