Despite idealistic proclamations by free trade enthusiasts which equate the promotion of free trade with the promotion of human rights,1 the goals of the WTO regime and the international human rights regimes are very different, as outlined in Chapter 2. The WTO regime is geared towards the promotion of free trade in goods and services, along with the protection of intellectual property rights (perhaps anomalously, given the constraints they place on free trade). Only a narrow range of freedoms is promoted by the WTO, and those freedoms, such as freedom of contract or right to trade, are not recognized in the formal legal pantheon of international human rights. An exception may arise in the case of the right to intellectual property, which may partially correlate with an international human right (for example, Article 15(1)(c) of the ICESR), though the scope of intellectual property protection in TRIPS is far broader than that demanded by any human right regarding intellectual property. Though WTO rights belong to and are enforced by States, the rights essentially serve their private export interests, most obviously multinational corporations. Of course, protection of the commercial interests of foreign corporations can have beneficial effects on the enjoyment of human rights, for example by corporate employees and consumers with access to cheaper and better services or goods. However, the elevation of the interests of foreign traders over countervailing interests, such as those of local traders, entailed in WTO rules does not gel well with international human rights law, where no such priority is afforded. Similarly, the non-discrimination provisions of the WTO are designed to ensure non-discrimination between foreign traders, and to prohibit discrimination against foreign traders. Discrimination against local traders is allowed, and arguably encouraged by certain WTO decisions.2 The human rights principle which allows and occasionally mandates the unequal treatment of unequals in the form of positive discrimination in favour of disadvantaged persons is not recognized under the WTO. Non-discrimination obligations under WTO law can therefore serve to entrench rather than address inequality. Finally, the rationale for the WTO is premised on utilitarian principles of economic efficiency. In contrast, human rights principles are essentially deontological; the rights of each human being regardless of his or her economic or other utility are cherished. Furthermore, as noted in Chapters 5 and 6, and also below, the utilitarian economic benefits of WTO rules are challengeable.
It has not been established in this book that human rights law prevails over WTO law as a matter of international law in the case of conflict, though it is more likely that human rights law prevails over trade law than vice versa.3 In any case, any conflict is clearly undesirable and damages both regimes, the rule of law in the broadest sense, as well as the States that are subjected to divergent obligations. From a human rights point of view, any conflict is particularly debilitating as the stronger enforcement mechanisms within the WTO, compared to the global human rights regime, may lead to the de facto prioritization by States of their WTO obligations over their human rights obligations.
A number of human rights deficiencies within WTO rules and processes are identified in this book. There are inadequate avenues for participation in the rule making and rule enforcement processes, as outlined in Chapter 3. Those inadequacies disadvantage two particular constituencies: social justice (including human rights) interests and the people of developing States. Those processes, which undermine participatory rights (such as those in Article 25 of the ICCPR), help to generate unsatisfactory substantive outcomes, which againwork to the disadvantage of those two constituencies. Democratic deficit is arguably a problem which arises with regard to all international organizations, given the remoteness of such organizations from individuals, and the fact that avenues for political participation are largely local and national rather than global. However, the power of, and lack of inclusiveness within, the WTO, as well as certain unique features of the regime such as the single undertaking, lead to the conclusion that its democratic deficit is more problematic than that which pervades international institutions in other areas, such as those within the international human rights framework.
So-called ‘non-trade interests’, such as labour rights interests or public health interests, are disadvantaged under WTO rules when they clash, or potentially clash, with free trade rules, despite the existence of exceptions to WTO rules, such as those in Article XX GATT. The ambit of WTO rules is very broad, as explained in Chapter 4, while the ambit of the exceptions is narrow and is subjected to a very high degree of scrutiny. The ‘promotion of countervailing free trade interests’ is not a recognized qualification to human rights. Yet a human rights measure, whether inward or outward, which is inconsistent with such interests will often be illegal under WTO rules, and thus expose a State to economic punishment. Indeed, a perceived conflict with WTO rules may well discourage States from enacting relevant human rights measures in the first place.4
It is true that some constraint on protectionist measures is welcome from a human rights point of view, notably where protectionist measures cause harms to the enjoyment of human rights by people in offshore industries. This scenario is most likely to arise where a developed State is protecting its industries from competitors in developing States, as explained in Chapter 4. Another area where WTO law might promote human rights concerns the extent to which it compels the import of good or services that facilitate the enjoyment of human rights, as discussed in Chapter 4 in the context of internet censorship. However, the detrimental ‘human rights’ impact of a protectionist measure, or a measure which obstructs foreign trade, is not a yardstick against which WTO compliance of that measure is assessed.5
WTO rules are unfair to developing States, as detailed in Chapters 5 to 7. In this respect, the political philosopher Thomas Pogge has issued a scathing critique of WTO rules:
Ha-Joon Chang echoes Pogge’s sentiments by stating that WTO trading rules ‘favour free trade in areas where the rich countries are stronger but not where they are weak’.7
Furthermore, WTO rules probably obstruct the capacities of developing States to implement their human rights obligations by closing off legitimate and well-established avenues of development and economic growth. Indeed, observance of WTO rules could on occasion generate human rights abuses. For example, TRIPS rules may compel States to adopt retrogressive measures with regard to the right to health. While arguments may be made to reconcile TRIPS and the right to health, as outlined in Chapter 7, the fact remains that the scope and therefore the constraints imposed upon States by TRIPS are uncertain due to the lack of authoritative interpretation of its terms. Moreover, enforcement of certain unfair WTO rules by States against other States, particularly by the North against the South, could constitute breaches of extraterritorial human rights obligations. Extraterritorial breaches may also be manifested in the maintenance of certain protectionist measures, which are allowed under WTO rules, particularly in the agricultural field.
The WTO prescribes free trade rules as a means to desirable ends, as is made clear in the preamble to the Marrakesh Agreement. Free trade is not an end in itself. If WTO rules do not in fact lead to those ends, any negative impact of WTO rules on human rights is unjustifiable from any point of view. In fact, one of the key reasons for the WTO’s mission is undermined. And yet there are plausible arguments that WTO rules hamper economic growth and development in developing States, as outlined in Chapter 5.
The fervour with which free trade advocates continue to promote their cause is astonishing. Joseph Stiglitz and Andrew Charlton have stated that it ‘is difficult to identify the evidentiary source of the bullishness for unqualified trade liberalization’.8 Mehdi Shafaeddin gives an example of slavish adherence to free trade theory from the World Bank in 2005.9 In that year, the World Bank published a mea culpa of sorts,10 and conceded that free trade policies had not produced the expected economic outcomes in developing States. Shafaeddin highlights some of the extraordinary admissions in the report, including that means (free trade reforms) were mistaken for ends (economic growth) and that the ‘one size fits all’ policies dictated by global trade rules were ill conceived and inappropriate.11 Despite those concessions, the World Bank report nevertheless concluded that protectionism was ‘not good for economic growth’, while ‘trade openness’ was described as ‘a key element of a successful strategy’.12
Similarly, Armin Paasch, a senior adviser on agriculture and trade for the German NGO, FIAN, has noted how the possible negative links between trade rules and food security were ignored during major intergovernmental meetings convened in the wake of the World Food Crisis of 2007–2008, including those of the Food and Agricultural Organization (FAO) and the G8.13 Indeed, all of the cited meetings called for a quick conclusion to the Doha round including major agricultural liberalization.14 As noted in Chapter 6, liberalization from the North is desirable but must be undertaken with care to avoid consequences for the right to food: further liberalization by much of the South is likely to harm smallholders, who make up about half of the global population of hungry people, and thus exacerbate problems regarding the right to food. The conclusion of the Doha round cannot be treated as an end in itself which will magically improve enjoyment of the right to food. While States within the Human Rights Council have acknowledged that trade agreements must be scrutinized and their implementation monitored to ensure that they do not jeopardize the right to food,15 those same States seem blind to the potential failings of free trade agreements with regard to the right to food when acting in other forums, such as other UN organizations, the WTO, and international financial institutions.16
Professor Robert Driskill has also commented on the overwhelming tendency of economists to support free trade as a policy:
The economist Ha Joon Chang, a strident critic of WTO rules and current global free trade rules, argues that the institution is essentially supported by an ‘army of ideologues’.18 However, in his view, free trade advocates are not consciously promoting policies which harm developing States. The problem is more entrenched than that: they truly believe what they are saying. As Chang states:
Of course, the above arguments are not meant to deny the need for rules for the global governance of trade. Otherwise ‘the law of the jungle’ and ‘the survival of the fittest’ would prevail. As noted in Chapter 3, the WTO serves the important purpose of putting some constraints on the economically powerful States which would otherwise not exist.21 The ‘peace dividend’ from globally accepted trade rules enforced by peaceful means is also important. Explicit published rules of course are more transparent and predictable than ‘no rules’. However, we should not accept rules that are not good, or which could be much better.
The WTO has a reputation for being an efficient international organization which ‘works’. Unlike many other international organizations, its enforcement procedures have real teeth. The human rights system is, in contrast, quite cumbersome and messy.22 Trade practitioners are keen to shield their ‘comparatively functional legal system’ from ‘what seems to be a far more politicized and legally uncertain system’.23 However, while the politicization within the human rights regime is undeniable,24 it is a fallacy to suggest that free trade is not itself an equally politicized issue. The stalemate within the Doha round, largely on North/South lines, bears witness to that fact.
From a legal point of view, it is true that human rights are vague at their margins, where judgements must be made as to whether a particular interference with a right is proportionate or reasonable, or whether a State is fulfilling its progressive obligations under ICESCR. However, the vagueness of human rights can be overstated. Often it is quite clear that a human rights abuse has taken place: not all human rights cases concern issues at the margins of rights. Furthermore, a wealth of domestic and international case law, as well as other instruments such as General Comments, aids in clarifying the meaning of rights.
Trade law is itself beset with uncertainties. The boundaries of ‘discrimination’ for the purposes of the chapeaus in Article XX GATT or Article XIV GATS, the scope of GATS and the TBT, the legal ramifications of the removal of the peace clause in the AoA, and the boundaries of the compulsory licensing exception in TRIPS are just a few examples of important unresolved issues of WTO law. Furthermore, it is likely that the uncertainties in WTO law have a more debilitating impact on government capacities than uncertainties in human rights law. While governments commonly test the boundaries of human rights law, governments are probably less willing to test the boundaries of WTO law and risk economic repercussions.
To reiterate an apt quote from Frank Garcia, ‘there is no such thing as a pure trade issue’.25 Given that trade law spills over into other areas of law, a desire for certainty per se cannot legitimately quarantine trade rules from supposed non-trade considerations such as human rights. Certainty in the law does not justify injustice or unfairness in the law. Certainty in the law is a virtue, but it does not justify bad rules.
WTO rules compel States to liberalize their trade regimes. Trade liberalization undoubtedly creates winners and losers. WTO rules do not demand that States take measures to compensate the losers, nor do they require States to ensure that the gains from free trade are equitably distributed. Those matters are left to the discretion of Member States. Therefore, the WTO is mandating that States adopt policies that harm certain people, and does nothing to ensure recompense for those who are harmed. Yet the treatment of losers from trade liberalization is crucial from a human rights point of view. This does not mean that there can be no losers. Rather, it means that appropriate measures must be taken to alleviate the detrimental human impact of free trade reforms.26
Why are obligations regarding the dismantling of free trade obstacles felt to be worthy of explicit internationalization within the free trade agenda, while measures regarding redistribution and other social welfare issues associated with trade, such as labour protections and fair distribution of the gains of trade, are omitted? As noted by Andrew Lang, ‘what we currently think of as “trade issues” and “trade values” are not predetermined but are in part a matter of choice’.27 The very meaning of ‘free trade’, and therefore what ‘should be’ within and what ‘should be’ outside the mandate of a global trade organization, has changed over time.28 James Gathii has stated that ‘social issues are congealed into the very essence of the trade regime’s history as well as its rules and praxises’.29 The exclusion of the ‘welfare’ side of the ‘embedded liberal’ bargain from the WTO30 is a political choice, rather than an incontestable given.
Margot Salomon explains that ‘the dominant view remains that economics should focus on efficiency and growth alone and that distribution should be left to actors within the political domain’.31 While confidently proclaiming the utilitarian benefits of free trade, which are challenged in Chapter 5, economists generally fail to ‘stress the income distribution effects of trade’.32 The absence of the latter within the WTO reflects a tendency in the economic realm to ‘overstate the benefits of the rules [of the international trading framework] for economic progress’ and to ‘understate the distributional outcomes of the rules’.33 Indeed, Driskill has criticized the economics profession for failing to identify the ‘implicit criterion’ that is being applied in concluding that free trade is good for a nation if it is known that it is not good for some people within the nation.34 After all, people can reasonably disagree on whether a GDP figure, which lacks any information on the economic situation of actual human beings within a State, is the appropriate measure of the welfare of the nation.35
The inevitable consequence of the current structure of WTO rules is that the losers from free trade will often, if not always, be left behind. As explained by Gathii:
WTO rules are thus imbalanced because the ‘costs of shifting production are assumed away rather than conceptualized as intrinsic to the working of the trading regime’.37 As noted in Chapter 2, the WTO Director-General Pascal Lamy has conceded that many States currently lack the capacity to respond to these adjustment costs.38
The problem is exacerbated by the adoption of prevailing WTO rules in an era where neo-liberal economic theories predominated.39 Neo-liberalism has also influenced the contemporaneous policies of other key economic bodies such as the IMF and World Bank.40 Neoliberalism upholds the invisible hand of the market as the appropriate guiding force for economies with minimal State intervention. Given that redistribution and compensation for ‘the losers from trade’ normally requires State intervention, neoliberalism does not ideologically support the capacities of States to unilaterally assist those losers. Indeed, some relevant measures may well breach WTO rules, such as certain measures which would facilitate access by the poor to water.41 Neoliberalism, whilst perhaps adorned with the recognition of some need for government regulation in discrete areas, may continue to dominate economic thinking, though, at the time of writing, the world is still working out its response to the Great Financial Crisis of 2008–2009.42
Neoliberal thinking dictates that the market should be cordoned off from politics and be left to its own devices. ‘[D]emocracy is acceptable to neo-liberals only in so far as it does not contradict the free market.’43 However, such a demarcation of economics and politics is a political position: state abstention has consequences just like state intervention.44 There is no natural division between politics and economics, just as there is no natural pre-ordained division between ‘trade’ and so-called ‘non-trade’ issues. As colourfully stated by Garcia, the ‘efficiency model’ promoted by the WTO and most economists needs to be ‘flushed … out of its assumed neutrality and into the mud pit of normative brawling, where it belongs’.45 If the market is left unregulated by public power, market forces may be distorted by imbalances of private power.46 The ‘market’ does not form a neutral baseline. Rather, non-intervention ‘assumes that the existing distribution of wealth and entitlements is legitimate’.47 Furthermore, intervention can be necessary to generate greater market efficiency. For example, as noted in Chapter 6, global agricultural markets are plagued by cartelization, which is anathema to a competitive market: further deregulation will only add to the power of monopolistic agribusinesses if it is not accompanied by measures to combat their concentrated power.
Furthermore, the inclusion of TRIPS within the WTO exposes neoliberals to charges of hypocrisy. TRIPS of course mandates considerable State intervention in the economy in one particular area. It seems to be no coincidence that this area happens to be one which generates huge benefits for corporate interests.
A final argument may be put against the current separation of efficiency and distribution within the global trading regime. The global trading system is not distributing gains equally or fairly between States, let alone between people. While free trade has probably been good for the aggregate welfare of richer States, it does not seem that it is presently serving the interests of poorer States. Distributional fairness between States, which is instrumentally related to distributional fairness between individuals within States, and is directly related to extraterritorial obligations regarding human rights, cannot be generated unilaterally at the national level.48
A key problem with current international governance is its imbalance. Economic governance via institutions such as the WTO, the IMF, and the World Bank, is strong. Social justice governance, via bodies such as the international human rights institutions and the ILO, is weak. Furthermore, there is little coordination between the two sets of institutions.49 The inevitable consequence is that States tend to take their global economic responsibilities more seriously than those concerning social justice. Indeed, this ‘consequence’ may in part be the ‘cause’ rather than the ‘effect’ of the lopsidedness in international governance. Governments perceive less self interest in fulfilling their human rights obligations compared to their trade obligations.50 Similarly, they perceive less self interest in demanding compliance by other States with their human rights obligations compared to their reciprocal trade obligations.
In contrast, at the regional level, significant progress has been made in moving forward on both human rights and free trade. The most outstanding example of this phenomenon is in Europe, where the ECHR exerts significant influence alongside the most advanced free trade regime, the EU. Of course, the EU has now evolved far beyond its free trade origins into other areas of integration, including foreign policy and immigration. The organs of the EU have also begun to develop their own human rights competencies.51 Indeed, at the time of writing, the EU was on the cusp of becoming a party to the ECHR in its own right.52 In the Americas, the human rights regime actually predates significant regional trade liberalization in the form of MERCOSUR, NAFTA, and CAFTA. Similarly, regional courts in Africa, which began as trade courts, have begun to exercise human rights jurisdiction.53 Furthermore, some new regional and bilateral trade treaties are paying more attention to human rights issues, such as labour rights and corporate social responsibility, unlike the WTO treaties.54
It is not proposed that the WTO play a major role in enforcing human rights, as has occurred with trade courts at the regional level.55 Rather, the WTO should ensure that its rules and initiatives are compatible with the need for significant progress on and the strengthening of global governance regarding social justice concerns. To that end, it would be highly desirable for it to work with other organizations, such as the ILO, the World Health Organisation (WHO), the UN Development Program, the UN Conference on Trade and Development and human rights bodies to ensure coordination of policies, and to avoid incompatibility of rules and goals. Such cooperation should be substantive rather than token.56 Given that trade affects on so many other areas of international concern, and on the work of so many other international organizations, the WTO must be open to cooperation and collaboration with such bodies.
An example of this approach not being advocated arose in discussions within the WHO concerning the facilitation of global access to drugs. The US and the European Commission argued (unsuccessfully) that it was inappropriate for the WHO to consider matters related to intellectual property as they claimed that the proper forums for such debate were the WTO and the World Intellectual Property Organization (WIPO).57 Yet it is absurd to argue that such matters should be excluded from WHO discussions, given the impact of intellectual property rights on the abilities of States to maintain adequate supplies of necessary medicines.58 It is difficult to avoid the conclusion that the US and the EC were ‘trying to prevent discussion [of such matters] in a forum that might actually give some weight to global health’ over the countervailing interests of intellectual property rights holders.59 The WHO carried on with its work in that area, concluding with the adoption by the World Health Assembly of a Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property in May 2008.60 A promising sign for this author, in light of the recommendation for greater cooperation between the WTO and relevant ‘non-trade’ bodies above, was the convening of a technical symposium on pricing and procurement practices regarding access to medicines in July 2010 under the joint auspices of the WHO, the WTO, and WIPO.61
The relative strengths of the respective global trade and social justice systems should be evened out. The diversity of the economic needs and capacities of States indicates that the ‘one size fits all’ ethos of the WTO should be abandoned, and more flexibility built into the system. For example, as argued in previous chapters, certain policy space should be restored to developing States. New flexibilities should clearly account for human rights obligations, including labour rights, though it is not proposed that the WTO become a human rights body. In regard to the actual enforcement of human rights, the ideal reform is for the international human rights regime to be strengthened.62 It is beyond the scope of this book to discuss proposals for the strengthening of the human rights regime. Suffice to reiterate that the international legal order should be reformed so as to reflect at least an equal commitment to human rights as to economic matters. Such a change would require States to take their own human rights obligations, as well as the enforcement of the obligations of other States, far more seriously than they currently do. Unfortunately, political will in that regard is currently missing. Equalization between regimes is therefore more likely in the short term to entail weakening of the WTO rather than significant strengthening of the human rights system.63
From a human rights point of view, there are problems with both the WTO’s processes and some of its substantive rules. Regarding the latter, problems arise with regard to their interpretation and their chilling effect in the absence of authoritative interpretation. The WTO's mission of promoting free trade and intellectual property rights should take more account of countervailing rights beyond those of foreign traders and intellectual property rights holders, the marked differences between States, and problems within the agricultural arena. Clearly, this book ultimately calls for major changes to the thinking which currently dominates the WTO. It is recognized that such changes are unlikely to occur in the short term, not least because the promotion of free trade (at least in certain areas) is being driven by more powerful actors than those promoting human rights.64 However, the ‘contemporary ascendancy of the pro-trade position’ is not inevitable or unassailable.65
It is hoped that this book achieves its purpose of explaining why there are criticisms of the WTO from a human rights point of view, and that many if not all of those complaints are in fact valid. The WTO is not the demon organization it is portrayed to be by some of its most vociferous critics.66 In some areas, such as agricultural protection in the North, the WTO is perhaps less culpable than the international financial institutions in promoting unfair rules,67 though it may be fairly criticized for doing little to redress that unfairness. Some of its rules may on occasion assist in the enjoyment of human rights.68 Finally, some trade issues give rise to complex human rights issues which, it must be conceded, are not easily resolved. For example, strict interpretation of the SPS agreement has been criticized for hindering the ability of States to protect the health of their populations, as evidenced in the Beef Hormone dispute. However, overly strict SPS standards, epitomized perhaps by the EU standard on aflatoxins in nuts and grains, can have devastating impacts on the livelihoods of some of the world’s poorest people.69
For too long it has been assumed by dominant global policy-makers that progress on free trade per se will inevitably result in progress in other areas such as poverty alleviation and development. There has been a tendency to treat free trade as inherently beneficial or as a hermetically-sealed issue that has only benign or neutral effects. There is insufficient acknowledgment of the bad consequences of WTO rules, such as unwarranted constraints on the development policies of developing States; the chilling impact of WTO rules on the adoption of trade measures designed to enhance human rights; rising pharmaceutical and educational costs for poor people; social dislocation caused by jobs wiped out in ‘inefficient’ industries and the consequent generation of social inequality, exclusion, and resentment; and an increased if misguided desire amongst governments to ratchet down labour standards.70 The WTO has a way to go before it can be deemed to be a true ‘friend’ of human rights. |
In which of the following scenarios would the wto be criticized?
Postagens relacionadas
direito autoral © 2024 estudarpara Inc.
