Human Rights-The Road Ahead

Naik, C. N. Krishna, Prabhakar, G. V., Bhargavi, G. Swapna, Forum on Public Policy: A Journal of the Oxford Round Table

Introduction

The issue of human rights has assumed great significance in the context of international trade off late. WTO principles seem to have interfered in numerous instances as in the case of right to health in the Thai Cigarettes case, the Hormone Beef case and the Asbestos case. The poor's right to affordable medicine has also been infringed by the TRIPS.

It is to be assessed whether trade related measures are supportive of human rights in a target country. For instance, prohibition of the import of goods using child labor seemingly is justified. However, this clause usually affects the target country and does in no way improve human rights. The industrialized and the developing countries are then at loggerheads at the WTO. Industrialized countries feel it necessary to have a social clause to protect human rights, to discourage social dumping, and to safeguard social standards. This is however seen as an excuse from the industrialized world to protect its own job market.

Presented in this paper are the existing trade related human rights measures, the legal framework of WTO, and the possibility of trade-related measures acting as catalysts in improving human rights situation. The UN framework of human rights approach is presented along with some measures to human rights.

Human Rights--The Concern:

Most member countries have in place certain measures concerning human rights that may contradict WTO agreements and influence international trade. These also impact countries internally and thereby affecting trans-national trade. Human rights are referred to all those rights enshrined in the International Bill of Rights that ensure social standards and are secured by the International Labour Organization (ILO).

Measures may be initiated through restrictive economic relations and may be imposed as a good related measure to a specific human rights violation or those that address human rights situation as a whole in the specific country. (1)

Trade restrictions are authorized as economic sanctions by the UN Security Council within the system of collective security under Chapter VII of the UN Charter, or they can be imposed unilaterally. Instances of such sanctions initiated by the UN Security Council are sanctions issued against Iraq, Sierra Leone, or Somalia. (2) Human Rights violations in a large scale were specifically targeted by the sanctions against Haiti, Rwanda, and Congo. (3) Under WTO law, such sanctions would qualify as discriminatory trade restrictions, which are prohibited according to Art. I and XI GATT. (4) They are however covered by Art. XXI (c) GATT, which allows deviating from GATT obligations, if in pursuance of a Member State's obligations under the UN Charter. (5)

The other possibility is that trade-related human rights measures are imposed unilaterally. This can be a unilateral trade embargo against a country where severe human rights violations take place. (6) In such cases the overall human rights situation is assessed and addressed specific to the target country. The Burma Law is maybe the most appropriate example of such unilateral sanctions where the State of Massachusetts enacted the law in 1996 as a reaction to the long history of violence and severe human rights violations by the Burmese Government (now Myanmar). (7) The law restrained the acquisition of goods or services by Massachusetts public authorities from any person--whether US or foreign national--doing business with Myanmar. This restriction on government procurement violated various provisions of the WTO Government Procurement Agreement (GPA). (8) The EC and Japan brought the case before the WTO; (9) however, the US Supreme Court struck down the Massachusetts law in June 2000 as unconstitutional, in violation of the federal exclusive powers to regulate foreign affairs. These cases illustrate the use of trade-related measures to improve human rights situation. The bigger problem that still goes unaddressed is that international human rights law and international trade law are not congruent though both enunciate rules that set out to achieve higher standards of living for everyone. (10) Globalization has only compounded this problem stemming from increasing globalization and interdependence on all levels, i.e. globalizing markets, but also the globalizing information and civil society, which points its fingers on the issues.11 Although international human rights instruments generally ensure compliance through monitoring and in some cases through individual complaint mechanisms, there are no strong enforcement measures, let alone trade measures, to make states comply with international standards.12 However neither the WTO nor the former GATT mention human rights.

Framework under the WTO

The WTO aims at establishing a trading system that is consistent, stable and allows transparency and fairness in rules for all member states involved in international trade. WTO does cover goods, services and intellectual property as well. The WTO is based on the economic model that each …

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Publication information: Article title: Human Rights-The Road Ahead. Contributors: Naik, C. N. Krishna - Author, Prabhakar, G. V. - Author, Bhargavi, G. Swapna - 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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