World Trade and
Protection of Human Rights-3
Prof. Mireille Delmas-Marty, University of Paris ,France
The covenant on economic, social and cultural
rights explains the civil and political aim of this program in its Article 13-1: "The
States Parties to the present covenant recognize the right of every one to education. They
agree that education shall be directed to the full development of human personality and
the sense its dignity and shall strengthen the respect for human rights and fundamental
freedoms.
They further agree that education shall
enable all persons to participate effectively in a free society, promote understanding,
tolerance and friendship among all nations and all racial, ethnic or religious groups, and
the further activities of the UN for the maintenance of peace."
There is also a theoretical argument: the
division is the result of a superficial classification without any genuine theoretical
reflection on each category. The reason for this division, which reflects the two possible
concepts on State’s role, i.e. the liberalism and socialism, may also be found in the
history. It is not sure that the division is based on a fundamental difference between the
rights it separates whereas in real life there is no such division. If the first category
is quite homogenous, the second one is rather a mixture.
The debate held in nowadays on the draft
Charter on Fundamental Rights of the European Union be a great leap forward if it rejects
the bipartite division in favor of an articulation between the equal dignity of all, basic
freedoms, civil, political or economic solidarity in all fields, the solidarity which
paves the way to the full integration of social rights and the justice which refers to
procedural rights.
It would therefore be possible to claim a
binding power upon economic actors.
The question of the acquisition of binding
power upon economic actors and in particular upon multinational enterprises requires a
debate on the nature of the legal and political means, the use of market mechanisms to
compel them to respect human rights.
Legally, a link has to be established between
the ‘hard law’ and the ‘soft law’, i.e. the self-regulation by way of
ethical rules or codes of conduct and compulsory rules sanctioned under the law. The
self-regulation which was qualified by Susan George as ‘unpleasant joke since no
external instance would be there to compel an enterprise to respect its
undertakings’, would not be credible unless it is reinforced by certification
procedures which would lead to the establishment of an external independent and impartial
control. Such procedures might facilitate the acceptance of the legal effects: at the
"micro-judicial" level, through the integration of these codes of conduct or
rules of ethics into the interpretation of traditional legal categories such as the right
to work ( in case where the violation of the code would considered to be as a reason for
the immediate termination of a contract for ‘ juste motif’) and the right to
competition ( the legislation on unfair competition may be applied to enterprises which
falsely seem to resect the code)0, and also to the notion of error on the reasons which
could justify the termination of the contract and the granting of the damages. The effects
at ‘macro-judicial’ level, the ethics would then be integrated into the
transnational public order and be considered as such on the occasion for example of an
international arbitration procedure.
In political terms, the binding character of
the human rights over the economic actors seems be impossible to achieve without the civil
society. Even if it has many definitions and is considered to be a legend, the civil
society remains indispensable to the construction of a "third reliable and coherent
sector" which would create "a space of confrontation", provided that it
would not be confronted to State. It should rather be considered as a "milieu",
as stated by Patrice Meyer-Bisch, which would be at the same time a center and something
in-between, which links, and not confronts, the private sphere to the public one.
This is the condition to be fulfilled at a
global level in order to establish a social link, which is not reduced merely to its
merchant component. A condition in which human rights leads to an alternative
globalization, already qualified as "cooperative" by some organizations.-concluded |
