Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization

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The entire human rights corpus is based on the UDHR, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the trio of documents referred to as the International Bill of Human Rights. In its 30 articles, the UDHR proclaims two broad categories of rights: these are, on the one hand, civil and political rights, and, on the other, economic, social and cultural rights. Although for political and historical reasons the rights in the ICCPR have received more recognition than those in the ICESCR, the UDHR treats the two sets of rights as indivisible, interrelated, and interdependent. It is, however, a fact that civil and political rights are more developed jurisprudentially than economic, social and cultural rights. Critically, however, trade policies and globalization affect economic, social and cultural rights, in particular. Hence the necessity of safeguarding these rights within the context of the GATT/WTO regime.

The civil and political rights that are provided for in Articles 3-21 include the rights to life, liberty and the security of the person; the prohibition against slavery, torture and cruel, inhuman or degrading treatment; freedom from arbitrary arrest and detention; the presumption of innocence and the right to a fair trial; and the freedom of speech, thought, religion, belief, conscience, assembly, movement and association. In Articles 22-27, the UDHR provides for economic, social and cultural rights. These rights include the right to social security, the right to work, the right to equal pay for equal work, the right to education, the right to rest and leisure, the right to security in the event of disability and unemployment, the right to health and the right to take part in the cultural life of the community. The UDHR makes no distinction and creates no hierarchy among the rights that it promulgates.

Briefly, the schism in human rights is a product of the bipolar ideological confrontation between the East and the West immediately following WWII. While the Soviet Union and its socialist allies posed as champions of economic and social rights, the West touted the primacy of civil and political rights. Soon after the adoption of the UDHR in 1948, positions hardened and eventually the UN decided to develop two separate covenants for the two sets of rights, each with different institutional and enforcement mechanisms and strategies. In a reflection of this ideological bias, many governments and human rights groups in the West became unsympathetic and even hostile to the idea of economic and social rights as "rights." It was argued unsuccessfully by these opponents that economic and social rights were not rights but "equities" or "concerns." Further, it was argued that, unlike civil and political rights, these rights were not justiciable in courts of law.

In reality, the opposition to economic and social rights in the West reflects the ideological divisions in the world that characterized the Cold War era, with social and economic rights being identified, misleadingly, with forms of collectivism and redistribution incompatible with individual liberty and market economics. One result of this fear was the creation within the ICCPR of the Human Rights Committee as its oversight body and the denial of a similar body for the supervision of the implementation of the ICESCR. In 1987, the Committee on Economic, Social and Cultural Rights was specially established by the UN Economic and Social Council to monitor the ICESCR. Importantly, while the ICCPR requires states to realize their obligations under it immediately, the ICESCR resorts to the language of gradualism, asking states to "take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum extent of its available resources, with a view to realizing progressively the full realization" of the rights in the Covenant. This vague and permissive language has only served as an excuse for governments that are all too eager to avoid their obligations under ICESCR.

It has been part of UN doctrine that the entire family of rights--civil and political as well as economic, social and cultural--are indivisible. The conceptual interdependence of the two sets of rights is beyond dispute. At the UN World Conference on Human Rights held in Vienna in 1993, over 180 countries affirmed that all human rights are "universal, indivisible and interdependent and inter-related." The Vienna Declaration and Programme of Action goes on to assert that "while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states regardless of their political, economic and cultural systems to promote all human rights and fundamental freedoms" ⁷³, Considering the opposition of some states to the notion of universality, the strength and clarity of this wording is significant.

The inter-relation of rights can be illustrated by a few examples. The right to form trade unions, for example, is guaranteed in the ICESCR, while the complementary rights to association and assembly are provided for in the ICCPR. The prohibition against non-discrimination in relation to the provision and access to education can be derived from Article 2 of the ICESCR and Article 26 of the ICCPR. Interpretations of both sets of rights almost always blur their supposed distinctions. In any event, it is now widely recognized and accepted that a society that denies basic social and economic rights cannot be stable and democratic and respect civil and political rights. In this connection, global trade should promote and protect the economic, social and cultural rights of individuals and communities.

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