Human Rights and Customary International Law

Customary international law is that core of international law that binds all States regardless of the treaties they have ratifi ed.97 States generate customary

9³ Harrison, above n 1, 26 (noting but not agreeing with the argument). See, eg, ‘Human Rights Survey’ Th e Economist, 5 December 1998, at 9, suggesting that economic, social, and cultural rights are issues that ‘should be left to politics and the market’.

94 See, eg, Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753, 786–9; Jose E Alvarez, ‘How not to Link: Institutional Conundrums on an Expanded Trade Regime’ (2001) 7 Widener Law Symposium Journal 1, 10;

Harrison, above n 1, 234.

95 See Malcolm Langford, ‘Th e Justiciability of Social Rights: From Practice to Th eory’ in Malcolm Langford (ed), above n 88, 3, 4.

96 Robert Howse and Ruti Teitel, ‘Beyond the Divide: Th e Covenant on Economic, Social and Cultural Rights and the World Trade Organization’ in Sarah Joseph, David Kinley, and Jeff Waincymer, Th e World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009) 40.

97 Th ere is an exception for ‘persistent objectors’. According to the persistent objector doctrine, if a State persistently objects to an evolving rule of customary international law, it can avoid being

international law through State practice and opinio juris.98 Th ere is great contro-versy and speculation over the identity of the human rights that are protected under customary international law. Th is controversy is exacerbated by the general lack of binding decisions on the matter, so the topic is dominated by academic debate.99

Th e outer edge of likely customary international law seems to be the totality of rights in the UDHR,¹00 though some commentators have claimed that rights in the Declaration on the Right to Development¹0¹ and the DRIP¹0² are custom-ary too. A recent development in the UN Human Rights Council provides sig-nifi cant support to the notion that the UDHR in its entirety is part of customary international law. Under the new process of Universal Periodic Review, the human rights record of every State will be examined in accordance with the treaties it has ratifi ed, voluntary pledges, the UN Charter as well as the UDHR.¹0³ Th erefore, China, for example, has reported on its record regarding at least some civil and political rights, despite its failure to ratify the ICCPR.¹04 Th e reporting by States of their record regarding rights based only on the UDHR, as well as the scrutinizing of that record by other States, constitutes signifi cant State practice tending towards the customary status of the UDHR.¹05

Th e following seems to constitute the minimal position, in that there is little doubt the following rights are protected by custom: prohibitions on genocide, slav-ery, systemic racial discrimination, grave violations of international humanitar-ian law, murder, disappearance, torture and other cruel inhuman and degrading treatment or punishment, prolonged arbitrary detention, and consistent patterns of gross violations of internationally recognized rights, and the right of colonial peoples to self determination.¹06

Th at shorter list excludes economic, social, and cultural rights. However, Professor Philip Alston has convincingly argued that the inner core of economic, social and cultural rights captured within the Millennium Development Goals

bound by that rule. A State loses persistent objector status if it fails to object consistently over time once the rule is in place. See, generally, Jonathan I Charney, ‘Th e Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 British Yearbook of International Law 1.

98 Opinio Juris constitutes a belief by States that a norm is legally binding.

99 See also, generally, Anthony E Cassimatis, Human Rights Related Trade Measures under International Law (Martinus Nijhoff , Leiden, 2007) 72–91.

¹00 See, eg, Sohn, above n 26, 17. See also above, text notes 29 and 30.

¹0¹ See, eg, Mohammed Bedjaoui, ‘Th e Right to Development’ in Mohammed Bedjaoui (ed), International Law: Achievements and Prospects (Martinus Nijhoff Publishers, Boston, 1991); Philip Alston, ‘Making Space for New Human Rights: Th e Case of the Right to Development’ (1988) 1 Harvard Human Rights Year Book 3.

¹0² See, eg, Megan Davis, ‘Indigenous Struggles in Standard- setting: Th e United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 465–6, commenting on the arguments of others.

¹0³ See Human Rights Council, ‘Report to the General Assembly on the Fifth Session of the Council’, UN doc. A/HRC/5/21 (7 August 2007) 4.

¹04 See Human Rights Council, ‘National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1: China’, UN doc. A/HRC/WG.6/4/

CHN/1 (10 November 2008) paras 42–62.

¹05 I am grateful to Professor Robert McCorquodale for sharing this idea.

¹06 See Restatement of the Law Th ird, Foreign Relations Law of the United States (American Law Institute, St Paul, 1987) para 702.

(MDGs) is now protected under customary international law. Th e MDGs are the eradication of extreme poverty and hunger, the attainment of universal primary education, the promotion of gender equality, the reduction of child mortality, improvements in maternal health, the combating of HIV/AIDS and certain other diseases, the achievement of environmental sustainability, and the development of a global partnership for development. Th ese goals, the achievement of which are essential for the attainment of global human dignity, have been consistently

‘affi rmed, reiterated and restated’ by governments,¹07 which may constitute suf-fi cient State practice and opinio juris to elevate them to customary status.

Customary international law is of course particularly important in the context of a State that has not ratifi ed a relevant treaty which protects a particular human right: it provides an alternative source of obligation for that State with regard to that right. Where a State has ratifi ed a treaty, it is bound under international law by the treaty anyway, regardless of the customary status of the norms therein. Most Member States of the WTO are parties to both Covenants. Th e huge majority are also parties to the CERD, CEDAW, and the CRC.

E. Conclusion

Th e above commentary has introduced relevant rules and concepts in WTO law and international human rights law. WTO law will be further elaborated, par-ticularly in Chapter 4, so this chapter has focused more on international human rights law. Given that they are commonly misunderstood, and dismissed as ideal-istic goals rather than enforceable rights, this chapter has paid special attention to explaining economic, social and cultural rights. As highlighted in following chap-ters, particularly Chapters 5 to 7, economic, social, and cultural rights are particu-larly relevant to the debate regarding the human rights impact of the WTO.

¹07 Philip Alston, ‘Ships passing in the night: the current state of the human rights and develop-ment debate seen through the lens of the Millennium Developdevelop-ment Goals’ (2005) 27 Human Rights Quarterly 755, 774.

2

Relationship between the WTO and