Academic journal article
By Picciotto, Sol
Law, Social Justice and Global Development Journal
The WTO acts in a number of ways as a global governance node, a point of intersection of a variety of regulatory networks. The interaction of WTO rules with human rights norms is both another example of such normative interactions, as well as raising more general questions about the relationship of the discourses and practices of economic regulation and those of human rights. The article examines first the procedural and institutional question of the possible inclusion of human rights principles explicitly within the WTO framework; secondly, the more substantive question of the relationship between the perspectives and discourses of trade and human rights and whether and how they could be reconciled, discussed in the context of two salient examples, medicine and food. In conclusion, it returns to the institutional issues by discussing the strategic aspects of the trade-human rights debates in the context of the role of the WTO as a node of global governance, and the critiques and challenges to it.
Keywords: World trade organisation, human rights, medicines, food, global governance.
1. Introduction: Collision or Complementarity of Discourses? In the past few years there has been impassioned debate about the compatibility of the agenda and principles for trade liberalisation pursued by the World Trade Organisation (WTO) with international human rights norms. Some critics of the WTO have attacked both its general orientation to trade liberalisation and specific WTO rules, as undermining human rights. Specific issues which have been said to demonstrate the conflict between trade liberalisation and basic human rights include restrictions placed by WTO rules on economic boycotts of countries on the grounds of violations of human rights standards, the impact on access to medicines of strong patent rights under the WTO's agreement on Trade Related Intellectual Property Rights (TRIPS), and the effects of liberalisation commitments under its Services agreement (GATS) on essential services such as water.
At the same time, there have been significant initiatives and proposals, both political and academic, for a rapprochement of the free trade and human rights agendas. From the academic perspective the most fervent advocate of the complementarity of these two approaches has been Ernst-Ulrich Petersmann, who has for some years and in many repeated writings proposed a combination of trade and human rights from a social-market perspective based on ordo-liberal theory. (2) This led to a memorably vehement clash with Philip Alston in the pages and on the website of the European Journal of International Law, in which Alston described Petersmann's approach as an attempt to 'hijack ... international human rights law in a way which would fundamentally redefine its contours'. (3)
Institutional initiatives have come from the UN High Commissioner for Human Rights (UNHCHR) and the Commission on Human Rights (CHR), who have produced a series of reports both on the general theme of the impact on human rights of globalisation and on the effects of specific aspects of the WTO agreements, notably of the agreements on agriculture, intellectual property (TRIPS), and services. (4) Although these exercises seem to have been viewed initially with some suspicion and concern by the trade community, it seems that, as they have proceeded, some fruitful interchange of views has developed between the human rights and trade perspectives. (5) This article explores the implications of introducing human rights discourses and principles into the framework of economic regulation institutionalised in the WTO. The WTO acts in a number of ways as a global governance node, ie a point of intersection of a variety of regulatory networks (Picciotto, forthcoming). These include preferential trade and investment agreements between two or more WTO members, which have begun to proliferate as the momentum for multilateral negotiations has been lost, as well as a range of regulatory arrangements governing substantive matters, such as health and environmental protection standards, or intellectual property rights. …