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

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In the last fifty years, the body of international human rights law has achieved a moral plateau rarely associated with any other area of international law. In fact, the power and righteousness of human rights is so great that virtually every modern cause has sought to cloak itself in the language of human rights. ⁷ Louis Henkin, a leading academic, has described ours as the "age of rights" ⁸ and human rights as the "only political-moral idea that has received universal acceptance." ⁹ Philip Alston, another prominent scholar, has argued that the "characterization of a specific goal as a human right elevates it above the rank and file of competing societal goals, gives it a degree of immunity from challenge, and generally endows it with an aura of timelessness, absoluteness and universal validity." ¹⁰ Founded on the Universal Declaration of Human Rights (UDHR), which Henry Steiner has described as the "spiritual parent" ¹¹ of other human rights treaties, human rights law is now an indispensable part of the international landscape.

There is today an impressive catalogue of universal and regional human rights treaties and institutions. Whether their mandate is simply to monitor, encourage compliance with, or enforce human rights, this maze of norms and institutions has sharply contracted the traditional international legal concept of state sovereignty, which once granted states impunity with respect to internal misconduct. Human rights do not, of course, negate the sovereignty of states, although they constrain it in important ways. International law does not replace national law; rather, international law instructs sovereign states on internationally accepted human rights and, for the most part, leaves it to states to implement those norms domestically.

Human rights law has modified international law in fundamental ways. Since WWII, it has become an uncontested principle of international law that a state's treatment of its own citizens is not solely a matter of domestic jurisdiction. ¹² It is true, of course, that human rights is not the only doctrine of international law that constrains the power of the state. In recent decades, the forces of globalization and the unparalleled predominance of global capitalism in the political and economic choices of states have further undermined the authority of the sovereign state. But ideas and values implicit in human rights have added an entirely new dimension to our understanding of the concept of state sovereignty.

Whereas previously, the state, or the monarch representing it, was the absolute sovereign, human rights norms now vest sovereignty in the people. This concept of sovereignty, which is expressed in the Universal Declaration, ¹³ the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), ¹⁴ is termed popular sovereignty. The concept grew out of the liberal tradition, ¹⁵ humanitarian law, ¹⁶ international labour standards  ¹⁷ and regimes for the protection of minorities.  ¹⁸ Such sovereignty derives from the people, not the state. Although powerful states have sometimes used this principle to justify the use of force against less powerful states often resulting in new forms of human rights abuse, the fact that human rights law has controlled and curtailed the reach of sovereignty, the most fundamental construct in international law, is a testament to its centrality in international relations.