Democratic Defi cit Argument
C. Democratic Defi cit, the WTO, and the International Human Rights Law Regime: A Comparison
WTO membership removes certain policy choices from Member States under international law, as is the case with most international law regimes. Furthermore, other international regimes also allocate power and decision- making ‘upwards’ to international bodies, which are more remote from people than their own national bodies. Th erefore, it is arguable that most if not all international legal regimes impact negatively on the participatory rights of national populations. Th e United Nations has noted the paradox that the substance of politics has internationalized (for example, in the areas of trade, human rights, and the environment), while political processes and institutions have remained largely national.¹³8
Is the democratic defi cit within the WTO a ‘worse’ threat to democratic rights than democratic defi cit in other international bodies? Is the allocation of power to the WTO as an international institution more or less appropriate than comparable allocations of power to other international bodies? I will make some observations on this issue by comparing the WTO with international human rights regimes.
Democratic defi cit and the international human rights regimes
Like the WTO, international human rights regimes have also been portrayed as threats to the legitimate regulatory power of States and the democratic choices of a State’s population. For example, there has been outrage in the UK regarding cer-tain decisions of the European Court of Human Rights, which have found British counterterrorism measures (in the context of Northern Ireland) to breach inter-national human rights standards.¹³9 In Australia, the government has commonly impugned fi ndings of violation against Australia by the HRC and other human rights bodies on the basis that those decisions lacked legitimacy and undermined policies and laws adopted via Australian democratic processes.¹40 Furthermore, the claims by certain States, such as China, Malaysia, and Singapore, that human rights are sovereign domestic matters, are well known and persistent, even if legally incorrect.
¹³7 See UNHCHR, above n 44, 15. See generally, Chapter 7.
¹³8 UNGA, ‘We the Peoples: Civil Society, the United Nations and Global Governance: Report of the Panel of Eminent Persons on United- Nations Civil Society Relations’, UN doc. A/58/817 (11 June 2004) 8, paras 7–10. See also Stiglitz, above n 21, 291.
¹³9 See Kieran McEvoy, ‘Law, Struggle, and Political Transformation in Northern Ireland’ (2000) 27 Journal of Law and Society 542, 557; Sarah Joseph, ‘Denouement of the Deaths on the Rock: the Right to Life of Terrorists’ (1996) 14 Netherlands Quarterly of Human Rights 5, 6, 22.
¹40 See, generally, David Kinley and Penny Martin, ‘International Human Rights Law at Home:
Addressing the Politics of Denial’ (2002) 26 Melbourne University Law Review 466.
Th e purpose of international human rights law is in many ways majoritarian. Th ough all people have human rights, they are probably most important for vulnerable minorities. In democracies, majorities are generally able to take care of themselves.¹4¹ Minorities, however, are in greater need of the sup-port of international human rights regimes to guard against the arbitrary exercise of power by majorities. Majority rule per se is unlikely to cater for the human rights of unpopular minorities such as new refugee arrivals, suspected (and actual) criminals, or vulnerable minorities whose interests do not coincide with those of the majority or whose interests do not attract majority attention.¹4² Th e notion of individual human rights would be considerably undermined if their extent was ultimately determined merely by the exercise of majority choices. Indeed, a key limit to the right of political participation is that majorities cannot compel gov-ernment policies that breach other human rights. Th erefore, there is signifi cant justifi cation for the removal of regulatory power from States under international human rights law (that is, its output) despite claims that such removal undermines majority rights.
In any case, the extent of the interference by international human rights law with State regulatory power is quite weak. Th e fi ndings of the human rights bod-ies at the global level are not legally binding, though they have persuasive value.
Numerous States have impugned the fi ndings of these bodies on the basis of their non- legal status.¹4³ Indeed, it is arguable that enforcement under the global human rights treaties has been delegated ‘almost exclusively’¹44 to the municipal systems of States given the lack of strong international enforcement.
Th e negotiation of global human rights treaties is an open process, with sig-nifi cant NGO participation in bodies such as the Human Rights Council and its predecessor, the Commission on Human Rights. Th ere is also ongoing civil society involvement in global human rights bodies. NGOs are permitted to participate in debates within the Human Rights Council. NGOs also commonly brief and sub-mit information to the human rights treaty bodies.
Th ough commercial bodies have generally not been so involved, they have par-ticipated in the areas of greatest interest to them. Corporations, for example, have been heavily involved in consultations with the UN’s Special Representative on Business and Human Rights since that mandate was created in 2005, and have been generally supportive of his reports. Similarly, the Special Rapporteur on the
¹4¹ Of course, human rights are precarious for majorities in non- democracies, governed by dicta-torships, such as Burma, or minority rule, such as apartheid South Africa. International human rights law of course also seeks to curb the arbitrary exercises of power of non- democratic governments.
¹4² Indigenous peoples in Australia are an example of this latter group. Th ey are not ‘unpopular’, but their interests (eg land rights, compensation for past wrongs) are sometimes perceived to run counter to those of the majority, or are simply of insuffi cient importance to the majority to infl uence the latter’s political choices.
¹4³ See, eg, Australia’s response to the adverse fi nding of the HRC in A v Australia, UN doc.
CCPR/C/59/D/560/1993 (30 April 1997) (HRC): Darryl Williams MP, Attorney General,
‘Australian Government responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997).
¹44 Douglas Lee Donoho, ‘Relativism versus Universalism in Human Rights: the Search for Meaningful Standards’ (1991) 27 Stanford Journal of International Law 345, 372–3.
Right to Health consulted extensively with pharmaceutical companies before devising guidelines for such companies with respect to access to medicines.¹45
Despite arguments that human rights are imbued with ‘Western’ concepts, developing States have played a signifi cant role in drafting human rights trea-ties.¹46 Th ey have more seats on the Human Rights Council than developed States.
In any case, no State has to ratify a human rights treaty even if it agrees to the texts thereof, and it can normally enter reservations thereto.
Most UN intergovernmental human rights activity takes place in Geneva dur-ing meetdur-ings of the Human Rights Council, so the problem regarddur-ing the absence of certain permanent State missions, noted above regarding the WTO, is repli-cated. However, the General Assembly, which sits annually in New York, is able to reopen Council debates. Furthermore, treaties might be drafted by the Council, but are ultimately adopted by the General Assembly. All UN Members have per-manent missions in New York.
States have considerable discretionary room for manoeuvre with respect to the implementation and enforcement of most internationally recognized human rights. Economic, social, and cultural rights are inherently fl exible, as a State’s obligations under the ICESCR are constrained by a State’s ‘maximum available resources’ and by the progressive nature of most aspects of those rights. Most civil and political rights are constrained by concepts such as proportionality and reason-ableness.¹47 For example, the right to freedom of expression in Article 19 ICCPR may be limited by measures that are ‘provided by law and are necessary’ to protect national security, public order, public health, public morals, and/or the rights of others. As another example, certain limited impacts on cultural practices entailed in the implementation of economic development programmes are permitted under Article 27 of the ICCPR.¹48
Individuals can access grievance procedures under some human rights treaties, such as the Optional Protocol to the ICCPR. Hearings in regional courts are pub-lic, but deliberations over individual complaints at the global level are not. All fi nal decisions are publicly available. A human rights complaint will often already have been litigated at the national level, where there may be an opportunity for interested parties to submit amicus briefs to national courts. Material from those national decisions is made available to the international body. Th ere is considerable deference to national authorities in international human rights decision- making,
¹45 See General Assembly, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, UN doc. A/63/263, 11 August 2008.
¹46 See, eg, Susan Waltz, ‘Universalizing Human Rights: the Role of Small States in the Construction of the Universal Declaration of Human Rights’ (2001) 23 Human Rights Quarterly 44.
See also Chapter 2, pp 44–6.
¹47 Th ere are, exceptionally, some absolute rights, which may never be qualifi ed in any circum-stance, such as rights to freedom from torture and freedom from slavery.
¹48 See Joseph, Schultz, and Castan, above n 107, 772–9. See also, eg, the HRC decisions in Jouni Länsman, Eino Länsman and the Muotkatunturi Herdsmen’s Committee v Finland, UN doc. CCPR/C/83/D/1023/2001 (15 April 2005), Jouni Länsman et al v Finland, UN doc. CCPR/
C/58/D/671/1995 (22 November 1996), and Ilmari Länsman et al v Finland, UN doc. CCPR/C/52/
D/511/1992 (8 November 1994).
with the utilization of doctrines such as the margin of appreciation,¹49 the need for complainants to exhaust domestic remedies before seeking international remedies, and the fact that the international bodies will normally defer to local fi ndings of fact and evidence.¹50
It is concluded that it is appropriate to delegate certain decision- making powers
‘upwards’ to international human rights bodies. A balance is maintained between national decision- making powers and the competence of international bodies.
Furthermore, the outputs of human rights bodies are justifi ed by the extent of the inputs. In fact, a common criticism of human rights is that the enforcement powers of international bodies are too weak rather than too strong.
Comparison with the WTO
Let us compare that short overview of human rights systems with the WTO. Trade law does not have the same counter- majoritarian purpose as human rights law.¹5¹ One argument in favour of an international trade organization is to prevent capture of the State by protectionist producer interests that seek to undermine the utilitar-ian benefi ts of a liberalized economy for all.¹5² Protectionist producer interests are often concentrated and politically mobilized, and are therefore able to manipu-late the domestic political process.¹5³ Th e WTO is said to help States to reinforce rational majority interests by protecting consumers (a disparate group who often lack a coherent political voice), who benefi t from access to cheaper goods, and, according to the theory of comparative advantage, the economic interests of the importing State as a whole as its industries become more competitive and effi -cient.¹54 However, as seen in Chapter 5, the argument that free trade and WTO rules benefi t majorities by promoting economic growth is in fact contestable with respect to some developing States.
Th e WTO also helps to protect the interests of overseas traders from State B who might otherwise be at the mercy of populist decision- making by State A. Th e WTO enhances the participatory rights of those traders, who are particularly vulnerable to being abused as political pawns as they are excluded from State A’s political community.¹55 Under international human rights law, only citizens have rights of political participation in a particular State. However, modern global eco-nomic interdependence dictates that the right may be permissibly limited in order to prevent undue harm to the interests, including human rights, of non- citizens,
¹49 Th e ‘margin of appreciation’ is a doctrine used by the European Court of Human Rights in interpreting the ECHR. It is akin to a ‘benefi t of the doubt’ given to the State party in implementing certain human rights. If a certain measure is deemed to fall within a State’s margin of appreciation, no violation is found.
¹50 Joseph, Schultz, and Castan, above n 107, 22–3.
¹5¹ Dunoff , above n 3, 758.
¹5² Raustiala, above n 8, 854–5, 864–7. ¹5³ Narlikar, above n 55, 5; Esty, above n 8, 11.
¹54 Narlikar, above n 55, 5; Raustiala, above n 8, 864.
¹55 Raustiala, above n 8, 873–4. See also Joel Trachtman, ‘Legal Aspects of a Poverty Agenda at the WTO: Trade Law and “Global Apartheid” ’ (2003) 6 Journal of International Economic Law 3, 18.
such as foreign exporters whose livelihoods might depend on access to State A’s markets.¹56
However, there are fears that the WTO itself has been captured by special inter-ests. Th e domestic power of protectionist interests in the developed world shrunk with each round of GATT talks, with a corresponding increase in the infl uence and power of their exporter competitors.¹57 It is arguable that the WTO serves to reinforce the power of multinational corporations, who are the major direct bene-fi ciaries of world trade.¹58 It does not enhance participatory rights if the WTO is eff ectively promoting the interests of the already powerful. For example, the Special Rapporteur on the Right to Food has reported on a particular power imbalance, which has had consequences for the structure of trade rules regarding agriculture, with knock- on eff ects for the right to food:
It is well known that, in developing countries, small- scale farmers form a large but geo-graphically dispersed group, with little or no access to resources for political lobbying, and face prohibitive transaction costs in the organization of collective action. Urban groups, in contrast, fi nd it easier to mobilize through public protests; so do farmers in industrialised economies.¹59
So too, of course, do large agribusiness fi rms.
Th e WTO Panels and its Appellate Body do not defer to national regimes in the way that international human rights institutions do. For example, there is no requirement to exhaust domestic remedies or explicit use of any doctrine of a mar-gin of appreciation. Furthermore, WTO norms are less fl exible than most human rights norms. Most human rights norms can be limited in proportionate or reason-able circumstances to achieve a number of broad objectives, including protection of ‘the rights of others’. In contrast, WTO exceptions, such as those listed in Article XX of the GATT, seem to cover a narrower range of objectives. Th e Panels and the Appellate Body have arguably been stricter in interpreting and applying limita-tions to WTO norms than have human rights bodies in interpreting and applying limitations to human rights norms. As discussed in Chapter 4, an exception must overcome two hurdles before it will be acceptable under WTO law: it must satisfy a test of ‘necessity’ in achieving the desired objective and it must satisfy a second strict test of non- discrimination imposed under the chapeau of Article XX. Th e single hurdle human rights test of ‘proportionality’ is a less onerous barrier for the
¹56 See also Chapter 4, p. 119 and generally, Chapter 8.
¹57 Keohane and Nye, above n 2, 6.
¹58 Atik, above n 64, 459; Esty, above n 8, 11. See also E- U Petersmann, ‘Th e Human Rights Approach Advocated by the United Nations High Commissioner for Human Rights and by the International Labour Organisation: is it relevant for WTO law and Policy?’ (2004) 7 Journal of International Economic Law 605, 611. Of course, the interests of multinational corporations and those of consumers can coincide. Eg, the entry of corporations into a market can give consumers access to cheaper goods. However, their interests can diverge, eg, over measures designed to ensure product quality, and arguably over intellectual property laws (see Chapter 7 for discussion of intel-lectual property).
¹59 Human Rights Council, ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter: Building resilience: a human rights framework for world food and nutrition security’, UN doc. A/HRC/9/23 (8 September 2008) para 17. See also Chapter 6 below.
application of exceptions or qualifi cations than the double- barrelled test applied by the Appellate Body and Panels.¹60
Th e process of negotiating WTO treaties and human rights treaties is not com-parable. WTO negotiations are conducted in secret. A State’s negotiating stance can change markedly in the closed environs of the negotiating rooms. Trade nego-tiations are characterized by trade- off s of interests: one WTO member might for example trade off its domestic sugar interests in order to gain advantages for its domestic cotton interests. WTO Members do not wish to visibly ‘sell out’
a domestic industry.¹6¹ In contrast, human rights treaties are negotiated in open meetings, often with NGO participation.¹6² Th ere is no comparable ‘give and take’: a State does not for example trade children’s rights for the rights of political prisoners. Furthermore, less is at stake when negotiating a human rights treaty. A State can vote to adopt a treaty yet never ratify it, or, in most cases, ratify it with reservations. In the WTO, negotiations yield ‘all or nothing’ propositions. States negotiate treaties and then must sign up to the ‘single undertaking’, that is the entire package deal, generally without reservation.¹6³
Finally, the WTO is a stronger regime than most international human rights regimes in terms of enforcement. Breach of WTO obligations can expose a State to economic countermeasures from an aggrieved State. In contrast, if a State is found in violation of a UN human rights treaty and fails to take remedial action, it will rarely suff er consequences beyond condemnation and shame, if that. Such con-sequences simply do not compare to the eff ects of punishment within the WTO system.
It must be noted that the decisions of regional human rights courts are bind-ing. Europe, through the mechanisms developed under the ECHR, has the most developed regional system. Execution of judgments is supervised by the Committee of Ministers within the Council of Europe, which can exert heavy political pressure in the case of non- compliance. In general, the Committee has been able to secure execution of judgments through ‘constructive and coopera-tive dialogue’ with States.¹64 In this regard, one may note that the European human rights system stands alongside a very strong regional free trade system, the EU, which also incorporates some coordination and harmonization on eco-nomic and social rights.¹65 Human rights agendas have not been marginalized during the process of European economic integration. Indeed, EU members are
¹60 See United Nations Offi ce of the High Commissioner for Human Rights, Human Rights and World Trade Agreements: Using General Exception Clauses to Protect Human Rights (Offi ce of the High Commissioner for Human Rights, New York and Geneva, 2005) 15 <http://www.fao.org/
righttofood/kc/downloads/vl/docs/AH311.pdf> accessed 20 September 2010.
¹6¹ See Sutherland Report, above n 25, 45; Keohane and Nye, above n 2, 19.
¹6² See Robert McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden Journal of International Law 477, 493–4.
¹6³ Narlikar, above n 55, 31–2.
¹64 Council of Europe, ‘Human Rights and Legal Aff airs: Frequently Asked Questions’, <http://
www.coe.int/t/e/human_rights/execution/01_Introduction/02_FAQ.asp> accessed 14 August 2008.
¹65 In respect of the latter, see Bob Hepple, Labour Laws and Global Trade (Hart, Oxford, 2005) Chapters 8–9. See also Dillon, above n 20, 123 (fn 140).
now bound by a new Charter of Fundamental Rights of the European Union and the EU is, at the time of writing, on the verge of becoming a party to the
now bound by a new Charter of Fundamental Rights of the European Union and the EU is, at the time of writing, on the verge of becoming a party to the