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. …