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

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The Authors

Robert Howse is Professor at the University of Michigan Law School and a member of the faculty of the World Trade Institute, Bern, Switzerland. He has taught world trade law at the University of Toronto and Harvard Law School, and in the Academy of European Law, European University Institute, Florence. Among other works, he is the co-author of The Regulation of International Trade (second edition, 1999), author of Economic Union, Social Justice and Constitutional Reform (1991) and editor, The World Trading System: Critical Perspectives on the World Economy, vols.1-4 (1998).

Makau Mutua is Professor of Law and Director of the Human Rights Center at the State University of New York at Buffalo School of Law. He holds a doctorate in law from Harvard Law School. He has taught law at Harvard Law School, SUNY Buffalo, the University of Puerto Rico School of Law and the University of Dar-es-salaam, Tanzania. He is the Chair of the Nairobi-based Kenya Human Rights Commission. He was Co-Chair of the 2000 Annual Meeting of the American Society of International Law. He sits on the boards of several international organizations and academic journals. He has written extensively on human rights and has consulted widely for the United Nations and NGOs.

Preface

Over the past decade, trade agreements have come under increased scrutiny from the public. More and more people -- peasants, trade unionists, human rights activists, small businesses, environmentalists, farmers, students and others -- are expressing concern about how trade agreements are affecting their lives. For all the talk of the benefits of globalization and its presumed contribution to economic growth, the undeniable reality is that globally, and within most countries, the gap between the rich and the poor is widening, and hundreds of millions of people are denied the basic human rights provided for by the United Nations. The creation of the World Trade Organization (WTO), outside the auspices of the UN, has aggravated many of civil society's concerns.

There is no consensus on how trade liberalization affects human rights, nor even a well-developed methodology for determining the human rights impacts of trade agreements. Many people in the mainstream trade policy community see no linkage whatsoever with human rights and consider such concerns outside their realm. Likewise, many human rights groups lack familiarity with trade issues. They are puzzled by the language and suspicious of the entire process: from the negotiations of tariffs to the settlement of disputes. The two communities are so far apart that they do not even use the same vocabulary, let alone share a common philosophy.

Both trade and human rights have been codified in highly developed legal regimes, negotiated by governments since the end of World War II. These two legal regimes have developed however in splendid isolation from one another. Both trade law and human rights law narrow the range of policy options that are available to governments. And yet, it seems that the question of whether the two legal regimes are contradictory has rarely been asked.

It is in this context that Rights & Democracy decided to commission a paper by two experts in these two fields of law. We were delighted that Robert Howse and Makau Mutua accepted our invitation to work through some of the challenges posed by human rights instruments to trade law. This paper details a number of instances where the WTO, as it exists today, does have the ability to take human rights into account. While the institutional architecture of the WTO is far from what human rights activists would like it to be, we expect that this paper will lay to rest the argument that the WTO has neither the mandate nor the capacity to consider human rights in making its decisions.

This paper is a product of dialogue--dialogue between the two authors with their respective fields of expertise, and dialogue among 26 participants at a workshop Rights & Democracy hosted in Seattle. While the paper has been enriched by these different perspectives, there is certainly no agreement on the best strategy for ensuring that human rights do indeed have practical, and not just theoretical, influence over trade rules. There are notably major differences over consumer-driven action, the role of sanctions, the proposal to expand the mandate of the WTO, and how best to protect labour rights.

So what is to be done? Some would argue that there is no point in attempting to reform the WTO, that its structure is so flawed it should be scrapped completely. Others would support the institutional reforms suggested in this paper, perhaps assisting the WTO in developing procedures for international agencies, experts and NGOs to intervene in dispute settlement procedures. Civil society organizations are likely to pursue many different avenues in attempting to resolve these critical issues. We at Rights & Democracy hope that this paper will provide assistance and some legal arguments for those trying to convince governments and multilateral institutions that trade and human rights cannot be carved off into separate departments, and that their primary legal obligations lie in the references to human rights in the UN Charter.

Warren Allmand, President -- Rights & Democracy