Guest blogger Caroline Dommen offers her views on how human rights can help define priorities for the governance of global trade.
Developing countries have been struggling for years to have their trade-related concerns recognized and acted on by their developed country counterparts. In parallel, civil society groups have been calling attention to ways in which international trade policy can go counter to development, sustainability, and equity objectives.
The current financial crisis, following close on the heels of the food crisis, reveals structural problems with the global economic system. Governments have reduced their regulatory role, leaving many elements of the system to private actors. Whilst some people have profited handsomely from new trading opportunities opened up by technological advances and by liberalization policies, others have suffered.
Crises such as the one we are now experiencing have a disproportionate impact on the most vulnerable and already marginalized groups of society. The current crisis is undermining access to work, affordability of food and housing, as well as of water, basic health care and education. [1] For many countries and many people, the main problem is not so much the bursting of the financial bubble but the decline in trade and employment in all countries.
Today, more than ever, the multilateral trading system is needed to ensure that governments do not retreat into short-sighted, nationally-focused protectionism. Whilst the multilateral system needs to be strengthened and supported in order to play this role, now is also the time to adjust and improve it to address the criticisms it faces. The challenge will be to ensure that the trading system really does respond to the needs of the world’s people, whether rich or needy, and whether in prosperous or in poor countries. Only if it succeeds in this endeavor will the World Trade Organization (WTO) begin to enjoy the public support and credibility that it has lost through being perceived as an instrument for promoting the interests of the wealthy.
Bias in the favor of Special interests is one of the core criticisms that human rights advocates have directed at the WTO. Human rights critics point out that WTO-based liberalization has been driven by those who stand to profit most from it, and has generally not been shaped to support a country’s development, social or environmental objectives. They also argue that there is a lack of public information about, and participation in, formulating and applying trade policies.
Human rights-based criticisms of the multilateral trading system are often very similar to concerns that developing country delegates express. Human rights also encapsulate and elaborate each of the UN Millennium Development Goals (MDGs). Human rights go further however, in that they bring useful – legal, political and practical – tools to guide the international trading system towards better integration of development and social goals.
Before looking at these human rights tools in more detail, it is important to clarify some misunderstandings about human rights. [2] First, human rights are not necessarily a trade conditionality tool – whilst there are advocates of using trade sanctions to force countries to adopt particular labor or rights standards, this is not a majority view and not, in the view of this author, the best approach. Second, the human rights which are most affected by trade negotiations and trade policies – the rights to food or to health, women’s rights or the right to participate in policy formulation – have clear, enforceable legal content and are binding on almost all States of the world. [3]
Thirdly, a human rights approach is neither pro or anti liberalization or any other economic approach – human rights simply require that policies support rather than undermine human rights.
Following are four main contributions that human rights could make to strengthened trade policy making:
DEFINING THE OBJECTIVES OF TRADE POLICY
Human rights law recognizes that States may not be able to ensure realization of many rights – to food, to education, to health – in a short period of time, particularly due to resource constraints such as those faced by developing countries. But human rights law does impose immediate obligations on all States. One is to have a policy in place towards realization of the right. This includes the obligation to monitor the extent of the realization, or non-realization, of human rights, and to devise strategies and programs for their promotion.
Fulfilment of this obligation would require countries not only to have national development, health, food or other such policies, but also to ensure that these policies are fully integrated into and supported by trade policy. This approach would help ensure that trade policy is more responsive to social, development or sustainable development objectives. It also provides an argument that can be put forward in support of trade-related technical assistance that starts by assessing country’s needs and then assists formulating trade policy that responds to their needs – in contrast to technical assistance today which too often seeks to apply existing trade rules without regard as to whether these rules are the most appropriate.
ASSESSMENT
All human rights analysis concurs on the necessity to conduct impact assessments of trade policy. This is linked to the human rights obligation to have a policy in place for the realization of human rights. It is also linked to another immediately binding human rights obligation, which is to ensure nondiscrimination in the enjoyment of human rights.
Human rights are particularly concerned with those very people who trade policy often forgets: the most vulnerable and marginalized. Ex ante assessments would require countries to take a disaggregated look at the likely impacts on vulnerable segments of society – minorities, those living in geographically remote areas, women or children, for instance – to ensure that the new trade policy does not risk leaving them worse off. This is rarely done today, resulting in trade policy that often results in de facto discrimination against vulnerable groups.
In the case of trade rules affecting access to food, the UN Special Rapporteur on the Right to Food has noted that mapping food insecurity and identifying actions to combat it will make it possible for those negotiating trade agreements to ensure that their trade commitments facilitate, rather than impede, efforts towards the fulfilment of the right to food. [4]
This approach can strengthen a government’s trade negotiating position, particularly since the right to food is a legal obligation on all States, not just with respect to the rights of persons on their territory but also with respect to international cooperation. The Special Rapporteur on the Right to Food has observed that impact assessments also have a powerful democratizing effect, since they provide an opportunity for civil society to participate in the elaboration and evaluation of trade policies. Trade policies that take into account the needs of a whole society – and not just the most vocal elements of it – will be more robust, and will also have more credibility.
OBLIGATION TO COOPERATE INTERNATIONALLY
Whilst human rights law recognizes that rights may not be realized within a short time, it also requires States to take steps towards their realization to the maximum of available resources, including those available through international assistance and cooperation. This provides a powerful argument in favor of international cooperation for a rules-based multilateral system that can insulate weaker players from external shocks or from the excesses of the powerful. It also provides an argument in favor of a trading system that reflects the needs of the poorer countries – even by permitting differential rules for them when necessary – and of the poorest people within them.
HOLDING PRIVATE ACTORS ACCOUNTABLE
Much of the current crisis is due to reckless behavior in a few specialized private business sectors. Human rights law requires States to adequately regulate private actors. In addition, many private businesses themselves have agreed to be bound by human rights standards. Therefore under human rights law there is an emerging obligation on private actors, including financial institutions, to ensure that their operations do not violate human rights. [5] States have a further obligation to provide justice when abuses do occur. Although the mechanisms for doing so at the international level are as yet underdeveloped, human rights law, and companies’ voluntary agreement to stand by it, could provide the basis for developing rules for firms conducting international trade activities, and accountability mechanisms for those who cause harm.
The global economic crisis has highlighted the need to strengthen and support multilateral trade institutions. The way to do this may or may not lie in reviving the Doha talks. What we do know for certain, however, is the importance of identifying the needs and entitlements of vulnerable groups and individuals, emphasizing the need for participation and accountability in the negotiation and implementation of trade policy, and the need for trade rules that reflect the needs of different countries and the people within them. Human rights can provide unique tools for devising such policies and benchmarks for assessing them.
Caroline Dommen is the Quaker UN Office’s (QUNO) Representative for Global Economic Issues in Geneva. The opinions expressed in this paper are those of the author and do not necessarily represent the views of the Quaker UN Office or of other Quaker bodies.
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[1] Human Rights Council, The impact of the Global Economic and Financial Crises on the Universal Realization and Effective Enjoyment of Human Rights, Statement of Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights, February 2009, http://www2.ohchr.org/ english/bodies/hrcouncil/specialsession/10/index.htm.
[2] For more details, see 3D THREE, Defining a People-Centred and Development-Oriented Trade Policy: Can a Human Rights Approach Help? Report of a Session at the 2008 WTO Public Forum, September 2008, http://www.3dthree.org/pdf_3D/3D_WTOPublicForum2008.pdf
[3] By March 2009, 160 States had ratified the International Covenant on Economic, Social and Cultural Rights; all but two States have ratifi ed the Convention on the Rights of the Child.
[4] Human Rights Council, Olivier de Schutter, Report of the Special Rapporteur on the right to food, Mission to the World Trade Organization, A/HRC/10/5/Add.2, 4 February 2009, http://ap.ohchr.org/documents/dpage_e.aspx?m=101
[5] Human Rights Council, The impact of the Global Economic and Financial Crises on the Universal Realization and Effective Enjoyment of Human Rights, Statement of Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights, February 2009, http://www2.ohchr.org/ english/bodies/hrcouncil/specialsession/10/index.htm.
