INTERNATIONAL

World Trade and Protection of Human Rights

Prof. Mireille Delmas - Marty, university of Paris, France

The context has changed over the past fifty years. Human Rights are now considered within the framework of an economic globalization characterized by an unprecedented development of exchanges. No one knows whether this factor of social transformation will bring us closer to the human rights by constrain States to abandon part of their sovereignty, or move us away from human rights by imposing a kind of might is right rather than a state governed by human rights.

The answer can not be given in advance. It is true that the ‘world’ trade has something in common with the ‘Universal’ Declaration of Human Rights; it entails the internationalization of the law i.e. the extension of legal norms outside national frontiers, and even the globalization of the law, if we consider that these norms are not anymore confined to the ‘international’ field-that of the relationships between states- having therefore ‘supranational’ particularities.

Trade and human rights belong to two apparently separate processes. With regard to commercial trade, historically, there are different globalizations, ‘the specificity of the ongoing globalization is known by all of us, even if there is no consensus on what are its characteristics’. A specificity which would probably result into ‘the victory of networks over the territories’, in an era where frontiers continue to delimit States’ territories like a puzzle, trade networks which are genuinely transnational, are structured by and involve economic actors with world-wide strategic impact. It is a specificity which stems from the new way of functioning of multinational or transnational enterprises which privileges a global strategy, for example, with regard to investments or personnel recruitment, as well as from the new world finance frame which is highly independent from States. Hence, in daily speaking, the word ‘mondialisation’ has become synonymous to economic globalization, as the English language, which is ‘the’ global language uses only the word ‘globalization’. It is clear that it refers primarily to the globalization of the economy and of the market. Legally, it is far after the establishment of monetary-the IMF- and financial-the World bank- organizations that the World Trade Organization came into being in 1994 as a follow-up to the GAAT Agreements together with the Dispute Settlement Body. The paradox lies in the fact that the globalization ‘incites to the regionalization’-the EU and other judicially less integrated organizations, such as the North American Free Trade Association-NAFTA, the Association of South Eastern Asian Nations, ASEAN, the MERCOSUR or Western Africa Economic Community. The main aim of these organizations is being the liberalization of markets and the extension of trade exchanges.

In parallel, a genuine law of human rights is being developed since the last world war, which professes a completely different concept of globalization, which is the ethical universalism as stated in the Universal Declaration of 1948. The Preamble proclaims the human rights as ‘a common ideal to be reached by all the people and all the nations, for all the individuals and all the bodies of the society’. The way from the proclamation to the practice is a tough one. With the signature and the ratification of the UN Covenants and of the regional and global conventions of human rights’ protection together with the creation of the progressively judiciarised control mechanisms, it is now possible to oppose human rights to States and sometimes obtain the condemnation of a State for human rights violations. It is possible to speak about a supranational law in this field.

The existence of two separate processes is symbolized by the creation, within the EU and the Council of Europe, which are two main European Organizations, of two supreme courts; one in Strasbourg for human rights and the other in Luxembourg for the European Union. But in a global scale, the existence of two processes seems to be inevitable with the increasing influence of the WTO compared to that of the UN which deals with the protection of human rights and of the International Labor Organization established in the early 20th century and they will be called upon to play an increasing role in the negotiations on the social clause.

With the development of each normative entity, it appears that their combination leads into a kind of normative mixing up. The debate on the social clause or more broadly on the social exclusion or of questions related to biotechnology, the maintenance of the law into two separate spheres –WTO and ILO or UN and WTO- seems to be old-fashioned, a fortiori in Europe.

It is too early to guess what would be the status of the future Charter of Fundamental Rights of the European Union. It is nevertheless clear that it will not have any real sense unless it is based upon the interdependence of the two spheres rather than on the inclusion of human rights within a framework dominated by economics, which subordinates the former to the market and to economy.

The interdependency is implicitly included in the preamble of the Universal Declaration of 1948, which professes the liberation of men from fear and misery. The fear refers to civil and political rights and the misery to situations of extreme poverty, which is an ever-pressing social and economic reality. In spite of a recent mobilization in favor of the newly industrialized countries, there is an ‘increase in social inequalities not only in prosperous countries but also in most of the emerging countries’. One quarter of the humanity live under the threshold of extreme poverty and the gap between the wealthiest 20% and the poorest 20% has more than doubled during the last three decades. This situation raises serious doubts about the capacity of economic liberalism to promote the general wealth.

From the legal point of view, it is possible to reconcile the world trade with the protection of human rights due to the principle of the indivisibility of all fundamental rights. The drafters of the Declaration had this in mind when they privileged the principle of the fraternity and inserted certain economic, social and cultural rights besides civil and political rights.

Reaffirming and ensuring the efficiency of the fundamental rights is therefore of utmost importance to the full respect of the principle of ‘equal dignity’ which is stated at the very beginning of the Universal Declaration-Art 1. In time of economic globalization, it would be an error to criticize the world trade and to pretend abandoning the market economy. Better to take advantage of its ‘dynamism’ and its ‘overture’ effect while trying to eliminate its perverse effects through a due application of the equal acknowledgement of all fundamental rights; this is what the principles of indivisibility really means.

It is therefore a three folded dynamics that the title of this course ‘World trade and the protection of human rights’, inspires to me: from the ‘juxtaposition’ of two separate processes and the internationalization of the law (I) to the tangling up of normative groups II, the movement would be uncompleted if the indivisibility of the fundamental rights III would not be there to reconcile the still unequal and unsymmetrical forces of the market and of the human rights in order to achieve a common law of humanity. Whatever may be the achievements in the field of the economy, the indivisibility is the condition, which guarantees the leading role of human rights.

The Juxtaposition: The world trade on the one hand, and the human rights on the other, would be the first act, providing their complementarity. Through their legal consequences, each of the process lead, through different ways and taking different risks, towards the internationalization and even the globalization of the law.

With regard to World Trade, the main risk would be that of the hegemonic globalization: there are many legal techniques which could lead in to this fact. Each important State took part into the phenomenon-the colonial powers in the past, the Soviet Union later on, and the United States now. A first technique is the extraterritoriality of the national law. The extraterritoriality which is legitimate in case of the existence of a reasonable link with the State, i.e. in case of the sanctions concerning facts even committed by non-nationals abroad, and which bears ‘substantial effects’ on the national territory. When this is not the case, the extraterritoriality becomes contrary to the international law (see the example of the US laws of 1996 which prohibited trade with Cuba, the Helms-Burton law and the law d’Amato-Kennedy concerning Libya and Iran). In fact, this kind of extraterritoriality may lead in to the globalization of the US law. The hegemonia may also result into the export of the national law to notably Eastern European countries. It may therefore become possible to determine the culture and the economy of other nations without having recourse to any territorial occupation or even any investment in the economic development, by importing there the legal system which would influence the social organization in its totality. In the financial field, on the contrary, a number of States try to attract foreign investments through the adoption of most favorable legislation to the particular interests of the latter. In this case, the law becomes a financial instrument. A last category of hegemonia which is more radical, may stem from the weakening of the legal system by the market with the emergence of zones without law which are submitted to the international capital: ‘the market takes the place of the nation, imposes itself to the State and becomes itself the law’.