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

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Constitutionally, human rights are based on the United Nations Charter. UN treaty instruments and bodies that address human rights issues are created pursuant to the UN Charter. The Charter specifically charges the UN to promote the entire gamut of human rights. It asks the UN to promote "higher standards of living, full employment, and conditions of economic and social progress and development"  ¹⁹ and "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."  ²⁰ To underline the seriousness with which it took human rights, the UN asked the Economic and Social Council to "set up commissions," ²¹ including those "for the promotion of human rights." ²² The Charter further requires member states to "take joint and separate action" ²³ in cooperation with the UN to promote human rights.

The UN Charter does not resolve the question of hierarchy of law, or, put differently, whether human rights law has primacy over other domains of international law. However, the Preamble reaffirms "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." ²⁴ The promotion and protection of human rights is thus one of the "ends" or purposes for the establishment of the United Nations. The Charter states that one of the "purposes" of the UN is to "achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." ²⁵ Although the term "human rights" appears in scattered places in the UN Charter, and is terse and even cryptic, there can be no argument that it is mentioned in vital contexts, a fact that underlines the centrality of human rights to the UN system. ²⁶

In international law, the status of a rule is determined by its source as law. There are four recognized sources of international law: international conventions or agreements; custom; general principles of law common to the major legal systems of the world; and the judicial decisions and teachings of distinguished writers. ²⁷ Of these, the most relevant for our discussion are the first two, namely, treaty law and customary international law. The status of human rights in international law, therefore, is determined by its location within the sources of international law. All human rights norms do not have the same status in international law. While some may be located in customary international law, most are codified in human rights treaties.

Unlike treaty law, which is based on the consent of states, customary international law binds all states. Customary international law "results from a general and consistent practice of states followed by them out of a sense of legal obligation." ²⁸ Thus customary international law binds all states without exception and irrespective of their consent. In contrast, international treaty law only binds those states which have given their express consent to the treaty or agreement in question. For human rights, this distinction is critical because the location of a human rights norm in either source changes its status in international law and could constitute the difference between an automatically binding obligation and a voluntary commitment. Customary international law, unlike treaty law, must be obeyed by states, their wishes notwithstanding.

The scope and content of the customary international law of human rights, as indeed of all customary law, is a work in progress. While there are certain human rights whose status as custom is generally agreed upon, that list is not necessarily complete or closed. But it is clear from existent international law that a "state violates international law if, as a matter of state policy, it practices, encourages or condones" ²⁹ the following conduct: genocide; slavery or slave trade; the murder or causing the disappearance of individuals; torture or other cruel, inhuman or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination such as apartheid; and consistent patterns of gross violations of internationally recognized human rights. ³⁰ The last category, that of "consistent violations of internationally recognized human rights," has a very broad scope and includes the human rights protected in all the major universal human rights treaties. ³¹ Such violations infringe customary international law if there is a "consistent pattern of gross violations" as a matter of state policy. ³²

Two vitally important concepts in understanding the status of human rights in international law are those of jus cogens and obligations erga omnes. Rules of jus cogens, or preemptory norms of general international law, describe international obligations from which derogation is not permitted under any circumstances, even in cases of emergency. These have been defined by the 1969 Vienna Convention on the Law of Treaties as norms "accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." ³³ Rules of jus cogens trump all other rules of international law, and are therefore in the first rank in the hierarchy of the law of nations.

The Vienna Convention anticipates the emergence of new rules of jus cogens in the future, a point that underscores the fact that jus cogens is an evolving concept, and that the substance and nature of its rules change with the progress and development of international law and morality. ³⁴ Although there is no list, as such, of rules that constitute jus cogens, prohibitions against the slave trade or slavery, genocide, piracy and violations of human rights are regarded as preemptory norms of international law or jus cogens. Additionally, these practices give rise to obligations erga omnes, that is, they give all states an interest in their prohibition. This point was emphasized by the International Court of Justice in the Barcelona Traction, Light and Power Company, Ltd. In that case, the court's opinion read, in part:

[A]n essential distinction should be made between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another state in the field of diplomatic protection. By their very nature the former concern all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights have entered into the body of general international law...; others are conferred by international instruments of a universal or quasi-universal character. ³⁵

Views from distinguished international law institutions and scholars give much of international human rights a customary legal character, and some of it the status of jus cogens. ³⁶ The position that human rights are obligations erga omnes is increasingly gaining ground. In particular, the International Law Institute has taken one of the most vigorous positions on this issue. It wrote the following in 1989:

This international obligation [to respect human rights]...is erga omnes; it is incumbent on every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. This obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world. ³⁷

International law is increasingly treating fundamental basic human rights as a part of customary international law. First, the UDHR itself, that "common standard of achievement for all peoples and all nations," ³⁸ is now deemed to possess a normative, obligatory character that gives at least portions of it the status of customary international law. ³⁹ Although not a treaty, and therefore not binding, the UDHR is so widely accepted and revered by governments that they invoke it, refer to it, and use it as a guide for fashioning constitutional and other laws as well as for formulating both domestic and foreign policy. Its acceptance by states has been so total and universal that it may now be said to meet the standard of opinio juris sive necessitatis, a practice that states follow out of a sense of legal obligation. Mary Ann Glendon has written that the UDHR "is already showing signs of having achieved the status of holy writ." ⁴⁰

A large portion of the body of human rights law has acquired this obligatory character in international law. The universal acceptance in principle of human rights by states of all political stripes and their invocation at the domestic and international levels, coupled with the active involvement of virtually all states, individually and collectively, to promote and protect human rights through the United Nations and regional human rights systems in Africa, the Americas and Europe, has led to a certain belief that states have assumed human rights obligations beyond the mere acceptance of treaty law.