Fairer Trade & the Human Right to Development-A Perfect Match or Misconceived Twins

Chen, Jianfu, Forum on Public Policy: A Journal of the Oxford Round Table

1. Introduction

The discussion of and debate on 'social issues' during the Uruguay Round (1986-93) of the GATT/WTO negotiations highlighted the potential impact of trade liberalisation on certain human rights (e.g. labour standards, environment protection etc). (1) However, it would be wrong to assume that the link between trade liberalisation and human rights was established in the late 1980s and early 1990s. In fact, these two issues were the twin considerations in the post-War reconstruction efforts and form the cornerstone of the United Nations.

However, trade liberalisation and the protection of human rights are based on two fundamentally different philosophies, the one of the free market, and the other of state intervention, at least in relation to economic and social rights, and other 'third generation' rights. Not surprisingly, the twins eventually parted company and each then took a rather different path and pace in development. The re-union of the two is a more recent event, but the union has hardly been a happy or harmonious one until now. The struggle within the union has occurred at two levels: trade liberalisation vis-a-vis the protection of individual rights, and trade liberalisation vis-a-vis the so-far ambiguous concept of the human right to development. The former is largely a struggle between global trading organisations/nation states on the one hand, and NGOs and individuals on the other, and the latter between and among nation states, but both concern issues of global justice and equity.

This paper mainly addresses issues pertaining to the latter struggle in the context of trade liberalisation and human rights protection. It first traces the emergence of the twins, but focuses on examining the contention between fair trade and the human right to development (RtD). Specifically, it analyses the failure of another set of twins--the well intended 'Special and Differential' (S&D) treatment for developing countries in the global trading system and the right to development--both of which were born out of the same struggle for a 'New International Economic Order' (NIEO). It is argued that neither has worked for countries that are desperate for an economic take-off and a meaningful realisation of the right to development and, hence, some fundamental but not necessarily radical re-thinking is required for the twins to work in practice.

2. Trade Liberalisation, the Protection of Human Rights, and the Right to Development

2.1. The Birth of the Twins: Human Rights and Global Economic Cooperation

The concept of 'human rights' is both new and old. It is old because the term 'natural rights', a term eventually replaced by the term 'human rights', has been with us since Ancient Greece. It is new because the expression 'human rights' is mainly a product of post-War jurisprudence, in particular since the founding of the UN. (2) Indeed, 'it was not until the rise and fall of Nazi Germany that the idea of rights--human rights--came truly into its own.' (3) The gross human rights violations by Nazi Germany provided the first catalyst for the establishment of the UN, which, in turn, started the process of the internationalisation of human rights.

Similarly, 'trade' has been with us since time immemorial, but a modern, multilateral trade system is a product of post-War efforts at economic reconstruction and cooperation among nations. Immediately after the War, as a prominent WTO scholar has pointed out, one of the main strands of thinking about the War was that

   the mistakes concerning economic policy during the interwar period
   (1920-1940) were a major cause of the disasters that led to the
   WWII. ... During this interwar period, nations, particularly after
   the damaging 1930 US Tariff Act, took many protectionist measures,
   including quota-type restrictions, which choked off international
   trade. Political leaders of the US and elsewhere made statements
   about the importance of establishing post-war economic institutions
   that would prevent these mistakes from happening again. (4)

Thus, an international conference sponsored by ministries of finance was held in 1944 in Bretton Woods, New Hampshire, in the United States. This meeting established the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD, the World Bank), (5) both of which then became a part of the UN structure, (6) collectively known as the Bretton Woods institutions.

Not surprisingly, economic cooperation and human rights protection developed rapidly side by side in the immediate aftermath of WWII. There is little doubt that both were twin considerations for a post-war international order, with its ultimate goal of securing international peace and security. (7) In other words, human rights and global trade were not meant to be, and should not be separated; they are part and parcel of the post-War reconstruction vision.

2.2. The NIEO and the Right to Development

As world politics in the post-War period was--and still largely is--dominated by the United States and its allies, the Bretton Woods system can also be seen as a product of Western countries, as is the international human rights regime. The seeds for contention had already been sowed by then, for the world was soon to become multi-polar.

In the development of a statement of human rights, it only took 18 months for the UN to have the Universal Declaration of Human Rights adopted in 1948, with forty-eight votes in favour, none against and eight abstentions. (8) But it took another 18 years to adopt the binding treaties (both the ICCPR and the ICESCR were adopted on 16 December 1966) and nearly a further 10 years for the treaties to take effect (the ICCPR took effect on 23 March 1976 and the ICESCR on 3 January 1976). While one may argue that countries are rather cautious about making legally binding treaties, the emerging East-West Divide (and the subsequent Cold War) played a rather decisive role in the delay and in the adoption of two Covenants, instead of one as originally contemplated. (9) This East-West Divide then largely dominated the UN human rights discourse and development, until the end of the Cold War when the North-South Divide took over the dominating role in international affairs.

In relation to international trade and global economic cooperation, the North- South Divide played a much earlier role than it did in human rights development, (10) and this Divide ultimately led to the call for an NIEO and the proclamation of the RtD.

The end of World War II led to the emergence of many newly independent states on the world stage, most of which were, and still are, economically poor countries. At the same time, as just mentioned, the international economic order, through the imposition of multilateral rules, was created and maintained by developed countries. Thus, the demand for new rules or at least changes to existing rules was to be expected. It did not take very long for the UN to adopt the now well-known Resolution 1803 in 1962. (11) While the substance of the Resolution was to grant States the right to nationalise foreign holdings, on condition that compensation was provided according to international law, its principal purpose was to establish an international economic order of mutual benefit. (12)

The Resolution or its practice did not fulfil the expectations of the Third World countries. Instead, the gap between them and the industrialised countries became wider despite efforts to the contrary. (13) This then led to concerted new measures, vigorously promoted by the nonaligned developing countries at the UN, to address the existing inequalities between the richer and poorer nations, and for this purpose the establishment of an NIEO. (14) With their comfortable majority at the UN General Assembly, these efforts led to some results at the UN in the form of Resolutions adopted at the General Assembly and in other UN Forums, that expressly call for an NIEO.

In May 1974 the Sixth Special Session of the General Assembly adopted a Declaration and Programme of Action on the Establishment of a New International Economic Order (NIEO), (15) and in December of the same year, the Charter of the Economic Rights and Duties of States was also adopted. (16) These documents laid down some twenty principles for a new economic order to be founded, such as a co-operative fight against inequality, better prices for raw materials and primary commodities, the elimination of political conditions in foreign assistance, and the reform of the international monetary system, etc. Significant as it may have been, and though supported by no less than 120 countries, the Charter was opposed by six of the developed countries, (17) with another 10 abstaining, (18) the majority of them being major international donors. As a result, the Charter remains a piece of paper of academic interest with little practical effect. (19)

It is however wrong to assume that there has been no impact of the notion of the NIEO upon international economic relations. In fact, the notion of a human right to development emerged directly out of this struggle for an NIEO.

In response to the NIEO Resolutions, the UN adopted two further Resolutions (20) the first of which states that the realisation of a new economic order is 'an essential element for the effective promotion of human rights and fundamental freedoms', (21) and the second emphasises that the right to development is a human right, and that equality of opportunity for development is as much a prerogative of nations as of individuals within nations. (22) Since then the RtD has been proclaimed as a human right by virtually every region (except Europe) and in universal human rights-related declarations, resolutions and conventions, leading ultimately to the adoption of the Declaration of the Right to Development in 1986. (23) Thereafter, the existence of such a right has been re-affirmed by all UN authorities, including the General Assembly, the Commission on Human Rights (now the UN Human Rights Council), the Conference of Heads of State of Non-Aligned Countries, the Assembly of Heads of State and Government of the Organisation of African Unity (now the African Union), and the UN High Commissioner for Human Rights.

2.3. The NIEO and the S&D

The push for an NIEO, through the United Nations Conference on Trade and Development (UNCTAD), also led to some concessions granted to less developed countries in the global trade regime.

The UNCTAD, established on the basis of ad hoc alliances among Third World countries pursuing a common goal of establishing an NIEO, (24) is described as 'a child of the era of decolonisation--the first institutional response in the economic sphere to the entry of the Third World on the international scene.' (25) The governments that established UNCTAD were committed 'to lay the foundations of a better world economic order'. (26) The first UNCTAD, held in Geneva in 1964 and attended by over 2,000 delegates from 120 countries, was the first major international conference at which the North-South divide began to obscure the East-West conflict and eventually relegated the latter to a secondary position within the framework of the UN, (27) as it has remained for more than 40 years.

Although the UNCTAD is constitutionally required to act as a coordinating centre in the UN system in respect of international development policy, (28) it has no formal rule-making powers, nor many specific implementing measures, nor is it particularly liked by developed countries which were and still are content with the Bretton Woods system as the principal force for global regulation of international economic relations. Though acting as the driving force for the claims of the Third World, only relatively few of its initiatives have borne fruits, (29) among which are the inclusion of Part IV into GATT in 1964, (30) and the establishment of a Committee on Trade and Development in the same year to oversee the implementation of Part IV and the International Trade Centre (now a joint agency of UNCTAD and WTO) to promote the trade of developing countries. (31) Essentially, the effect of Part IV and later concessions (32) is to waive certain GATT principles in favour of less developed countries. (33) These 'special' treatments under GATT eventually become to be known as 'special and differential' treatment (S&D) for developing countries. (34)

Clearly the S&D treatment first emerged in a political rather than a trading context, and was seen, and still largely is seen, as a political right. (35) As such, its contents make sense only in the politico-economic context of the NIEO. Further, S&D can be seen essentially as the first expression in global trading rules of a political RtD, (36) though the two eventually took separate paths in development, with different political and philosophical orientations.

3. A Troubled Life Shared by the RtD and S&D

3.1. RtD as a 'Human' Right and Its Philosophical Underpinnings

The basic thinking for the establishment of an NIEO and, especially, the RtD, was that, though human rights are of a moral/an ethical and legal nature, their actual enjoyment requires an economic foundation and social and political stability that, unfortunately, does not exist in many poor countries. (37) This thinking clearly was different from the then laissez-faire market ideology and the traditional thinking on civil and political rights as being 'negative' rights that demand the absence of the states in the exercise of such rights.

As a legal concept, the notion of RtD was first advanced by a Senegales jurist, Keba M'Baye, in 1972, (38) and later popularised by a French jurist, Karel Vasak, formerly UNESCO Legal Adviser, in his theory of the 'three generations of human rights'. (39) Vasak examined the problems (e.g. famine, illness and ignorance) in developing countries and concluded that in many African countries governments preoccupied with these problems tended to overlook the classic liberties. His view was that when economic and social developments were achieved, then general respect for rights and liberties would be secured. And from this he deduced a 'right to development' as a necessary corollary of the other fundamental rights recognised in international texts. (40)

The initial recognition of the connection between human rights and economic development was made at the International Conference on Human Rights in Tehran in 1968 in its

Resolution XVII:

   The enjoyment of economic and social rights is inherently linked
   with a meaningful enjoyment of civil and political rights, and ...
   there is a profound interconnection between the realisation of
   human rights and economic development. (41)

Thereafter, as mentioned, the notion of RtD was eventually established by the 1986 Declaration on the Right to Development, and the African Charter of …

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Publication information: Article title: Fairer Trade & the Human Right to Development-A Perfect Match or Misconceived Twins. Contributors: Chen, Jianfu - Author. Journal title: Forum on Public Policy: A Journal of the Oxford Round Table. Publication date: Summer 2008. Page number: Not available. © 2008 Forum on Public Policy. COPYRIGHT 2008 Gale Group.

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