World Trade amd Protection
of Human Rights - 2
The answers are simultaneously emerging at
regional and global level but the legal approach adopted is not the same, due to the fact
that the needs of harmonization which emerge with the regional integrations are for the
moment ignored by the WTO, a classical interstate organization which privileges the
technique of "millefeuilles", a network of agreements with many appendices. To
put it in an other way, the ‘world trade law’ is constituted of a mosaic of
polymorphous and moving normative entities which facilitate what is called a
‘shopping forum’ consisting of selecting the most favorable system of rules to
commerce and not the most favorable system to the human rights.
With regard to human rights, it should be
kept in mind that the universal character of the 1948 Declaration has been contested by
those who considered it as a proof of the Western cultural hegemony. But the 18 members of
the HR Commission of the UN were of different origins and if through Eleonor Roosevelt or
Rene Cassin, there have been any western influences, the final text does not contain any
idea of hegemony. On the contrary it offers a nonexclusive ‘universe’ which
recognizes all cultures, to the condition that the latter recognize the equal dignity of
all human beings.
In fact, the pluralism of human rights is
more directly linked with the risk of fragmentation or bursting rather than hegemony. This
fact could be observed through different legal techniques. The fragmentation comes firstly
from the emergence of regional instruments of the protection of human rights. Here again,
the regionalization is not opposed to the globalization, providing that the texts are
compatible.
The UN declaration on Social Development
adopted in 4 December 1986 states that ‘the development is a global economic, social,
cultural and political process’. Hence, ‘all human rights and all fundamental
freedoms are indivisible and interdependent; the achievement, the protection and promotion
of civil, political, economic, social and cultural rights deserve equal attention and have
to be dealt with equal urgency’. In other words, human rights have to be interpreted
and applied as a coherent and indivisible whole, they are coherent because indivisible.
The indivisibility implicitly expressed in
the Universal Declaration is primarily an achievement to be consolidated by the
acquisition of binding force for all fundamental rights. It is clear that the new
challenge would be the acquisition of such forces not only over States but also over
economic actors.
Reinforcement of control mechanisms for
economic, social and cultural rights is necessary for all fundamental rights to become
binding over states. There are at least two options: Maintaining the division between the
two categories while creating judicial mechanisms of control for economic, social and
cultural rights in line with those already existing for civil and political rights. The
additional protocols to the European Social Charter or to UN covenants are significant
examples. This way is nevertheless time-consuming and increases the existing division
between the two categories of rights.
Or, rejecting the division and trying to
reunite the two categories into a whole. There are many arguments in favor of this option.
First, in practice, the creation of one category of rights is not possible without the
others. Without the right to housing, for example, most of the civil and political rights
such as private and family life, right to vote, etc, are inaccessible. The suppression of
the main civil and political freedoms has well known consequences on the economic dynamism
and social cohesion. It is also the method employed by the European Court of Human Rights,
which has the competence to control only respect for civil and political rights, to
indirectly extent its protection to economic, social and cultural rights as well. For
example, through the right to fair trial or more recently through the non-discrimination
principle which the Court applied to certain social rights.
There are also a number of rights
unclassified into the one or the other category, such as the trade union freedom, freedom
of association or of assembly, or the right to property which is civil and economic,
individual and collective, and which remains so unclassifiable that it had been omitted in
both Covenants of the UN whereas it is stated in the Universal Declaration.
Another such example is the children’s
rights. In Article 24-1 of the UN Covenant for civil and political rights a social program
in favor of children is foreseen. The article reads as follows:; "Every child shall
have, without any discrimination, the right to such measures of protection as are required
by his status as minor, on the part of his family, society and the State". |
