Underlying Values

Although they arguably have deeper and more universal, cross- cultural roots dat-ing back to the earliest conceptions of law, modern notions of human rights are often traced back to Western liberal philosophies of the seventeenth and eight-eenth centuries.¹ Specifi cally, John Locke’s ‘Second Treatise of Government’

speculated that men in a ‘state of nature’ had ‘natural rights’ to life, liberty and property.² Similar ideas emerged in the Age of Enlightenment in France with the ideas of Rousseau, de Montesquieu and Voltaire, though the continental European theorists qualifi ed rights more with limitations, duties, and ideas of fra-ternity and equality along with liberty.³ Natural rights theorists argued that such rights were rooted in the inherent dignity and rationality of human beings (or rather, ‘men’), a departure from the predominant but irrational religious dogma of the time.4 In classical Lockean theory, societies were formed under a ‘social contract’, under which ‘men’ retained their natural rights subject to the qualifi ca-tion that they did not threaten or harm each other’s rights. Th e role of government was minimal, and was essentially confi ned to enforcement of that social contract.

Th erefore, early conceptions of human rights construed them as a narrow range of civil and political freedoms from government action and protections from others, rather than entitlements to government- provided goods or services. Th ese early

¹ Th e following commentary is adapted from Sarah Joseph, ‘Civil and political rights’ in Mashood Baderin and Manisuli Ssenyonjo, International Human Rights Law: Six Decades after the UDHR (Ashgate, Surrey, 2010) 89–106.

² John Locke, ‘Th e Second Treatise of Government’, reprinted in Peter Laslett (ed), Locke, Two Treatises of Government, 2nd edn (Cambridge University Press, Cambridge, 1988) 265ff .

³ Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, New York, 2001) xvii.

4 See Burns Weston, ‘Human Rights’ (1984) 3 Human Rights Quarterly 257, 259.

conceptions of human rights law, which infl uenced the earliest Bills of Rights in the US and France, focused on libertarian negative rights rather than positive claim rights.

Despite numerous criticisms of natural rights theories from thinkers such as Karl Marx5 and Jeremy Bentham,6 natural rights theories endured and domi-nated the drafting and language of the UDHR in 1948.7 However, by 1948, conceptions of natural rights had evolved far beyond their early libertarian roots to encompass rights for women and minorities, workers’ rights, and rights to some minimum levels of material security in the form of welfare rights,8 and the need for persons to function as members of society, rather than as mere individuals.9

Th e following values are articulated in the UDHR and encapsulate the values which underpin the modern international human rights system: universality, dignity, freedom (or liberty), justice, equality (or fairness, including distribu-tive fairness), accountability (of governments), participation, empowerment, and brotherhood (or solidarity) amongst people.¹0

Th e Director- General of the WTO, Pascal Lamy, has proclaimed that trade rules, including WTO rules, are based on the same values as human rights:

‘individual freedom and responsibility, non- discrimination, rule of law, and welfare through peaceful cooperation among individuals’.¹¹ Th e infl uential WTO scholar Ernst- Ulrich Petersmann has also stated that the WTO regime promotes freedom (in removing restrictions on trade), non- discrimination (in the form of MFN and national treatment), the rule of law (in committing WTO Members to transparent obligations and an enforceable rules- based international trading system), and economic effi ciency leading to enhanced welfare.¹² All of those values, as proclaimed by Lamy and Petersmann, seem congruent with the promotion of human rights principles until subjected to greater scrutiny.

5 Marx dismissed natural rights as egoistic and based on anti- social premises pitting man against man: see, eg, Karl Marx, ‘On the Jewish question’, reprinted in David McClellan (ed), Marx: Selected Writings (Oxford University Press, Oxford, 1977) 51–7.

6 Bentham famously dismissed natural rights theories as ‘anarchical fallacies’ and ‘nonsense upon stilts’: see Jeremy Bentham, ‘Anarchical Fallacies’, reprinted in Jeremy Waldron (ed), Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen, London, 1987) 46ff .

7 Johannes Morsink, ‘Th e Philosophy of the Universal Declaration’ (1982) 4 Human Rights Quarterly 391.

8 See Henry Shue, Basic Rights (Princeton University Press, Princeton, 1980) 24–5; Matthew Craven, Th e International Covenant on Economic Social and Cultural Rights (Oxford University Press, Oxford, 1995) 13. Indeed, Morsink traces support for economic, social, and cultural rights to an early proponent of natural rights, Th omas Paine, at Morsink, above n 7, 326.

9 Morsink, above n 7, 334. ¹0 See UDHR, especially Preamble and Article 1.

¹¹ Pascal Lamy, ‘Towards shared responsibility and greater coherence: human rights, trade and macroeconomic policy’ (Speech at the Colloquium on Human Rights in the Global Economy, Co- organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January 2010) <http://www.wto.org/english/news_e/sppl_e/sppl146_e.htm> accessed 18 September 2010.

¹² Ersnt- Ulrich Petersmann, ‘Time for a United Nations “Global Compact” for integrating human rights into the law of worldwide institutions: lessons from European integration’ (2002) 13 European Journal of International Law 621, 636.

Freedoms and rights under trade law and human rights law

Th e freedoms promoted under the WTO lie exclusively in the international eco-nomic sphere, such as the rights of exporters to peaceful enjoyment of property and freedom of contract, non- discrimination in relation to other like industries (discussed below), and freedom of movement of goods and services across borders.

Th is list of freedoms is very narrow compared to the freedoms promoted under human rights law. Furthermore, WTO law supports rights with respect to a few, namely foreign traders, while human rights law recognizes rights for all. Th e nar-rowness of the range of benefi ciaries under the WTO gives rise to the danger that those benefi ciaries are unduly privileged when their interests clash with those of others, such as, for example, local competitors or consumers, in a way that under-mines the human rights of the latter.

As noted above, John Locke’s theory of natural rights has profoundly infl uenced the development of human rights law. Locke was also one of the fi rst modern phi-losophers to provide a justifi cation for the right to private property. Nevertheless, in modern international human rights law, the right to property is heavily quali-fi ed. For example, Article 1(1) of the First Protocol to the ECHR outlines the right as follows:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the con-ditions provided for by law and by the general principles of international law.

Th e preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Th e right is heavily qualifi ed by the second paragraph, and by the fact that one can be deprived of one’s property ‘in the public interest’ subject to domestic and inter-national law.¹³

Th e right to property was not in fact transposed at the global level from the UDHR to either Covenant, largely due to the socialist bloc’s opposition during the drafting thereof.¹4 Th at is not to say that property rights are totally unpro-tected under the Covenants. Th e right to property must, for example, be enjoyed on a non- discriminatory basis. In a number of cases against the Czech Republic under the ICCPR, the HRC has found that the conferral of rights of restitution on citizens only, with regard to property confi scated by the previous communist regime, was a breach of the right of non- discrimination on the basis of nation-ality.¹5 However, the right to property per se is not protected: no violation of the

¹³ On relevant ECHR case law, see Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak (eds), Th eory and Practice of the European Convention on Human Rights, 4th edn (Intersentia, Antwerp, 2006) Chapter 17.

¹4 See Audrey Chapman, ‘Approaching intellectual property as a human right (obligations related to Article 15(1)(c))’ (2001) XXXV Copyright Bulletin 4, 12.

¹5 See, eg, Simunek v Czech Republic, UN doc. CCPR/C/54/D/516/1992 (19 July 1995) and Adam v Czech Republic, UN doc. CCPR/C/57/D/586/1994 (25 July 1996) (both Human Rights Committee).

ICCPR would have arisen in the Czech cases if no restitution rights had been granted to anybody.¹6

Th e promotion of property rights within the context of economic globalization (moving beyond the realm of the WTO) tends to focus on security of transac-tions and protection for foreign investors, rather than property rights as human rights enjoyed by all regardless of one’s economic utility.¹7 Ultimately, that lop-sided promotion and protection of property rights can prompt the corrupt and forced transfer of lands to those who can pay more for that land, and/or those who can make the land more profi table, at the expense of indigenous peoples and the poor.While such transfers may be economically benefi cial, at least in the short term,¹8 they do not conform to international human rights norms. For example, land registration systems are generally designed to ensure secure property rights, and their introduction has been funded in some developing States by the World Bank. Unfortunately, such systems have on occasion fostered corruption and human rights abuses, whereby traditional land- owners such as indigenous peo-ples have been arbitrarily evicted, with their lands transferred to rich speculators and developers. For instance, a land titling project in Cambodia has entrenched inequality by exacerbating the vulnerability of poor householders in comparison with rich developers.¹9

Th ere is no free- standing right to freedom of contract in international human rights law, apart from Articles 15(2) and 16 of the Charter of Fundamental Rights of the European Union. Th e commercial origins of the EU were undoubtedly infl uential in generating those provisions, which came into force in most EU coun-tries on 1 December 2009.²0 At the domestic level, freedom of contract has had a chequered history under the Fourteenth Amendment to the US Bill of Rights.

Notoriously, in Lochner v New York,²¹ the Supreme Court of the United States struck down a New York law which limited the number of hours a baker could work in one day (10 hours) and in one week (60 hours). Th at law was designed to promote labour rights, but was found to undermine individual freedoms of con-tract. Lochner clearly demonstrated the tension that can exist between labour regu-lation, and indeed economic reguregu-lation, and the laissez- faire principle of freedom

¹6 Th e ICCPR did not apply to the original confi scations, which discriminated against persons on the basis of their political opinion, as they predated the entry into force of the ICCPR for the Czech Republic.

¹7 See also James Harrison, Th e Human Rights Impact of the World Trade Organisation (Hart, Oxford, 2007) 47.

¹8 See, eg, Ha- Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective (Anthem Press, London, 2003) 82–3.

¹9 See Natalie Bugalski and David Pred, ‘Land Titling in Cambodia: Formalizing Inequality’

(2010) 7 Housing and ESC Rights Law Quarterly 1. See also Nicola Colbran, ‘Indigenous Peoples in Indonesia: at risk of disappearing as distinct peoples in the rush for biofuel?’ (2010) International Journal for Minority and Group Rights, forthcoming, paper on fi le with the author, for a discussion of the eviction of indigenous peoples in Indonesia to make way for palm oil and jatropha plantations (partially for biofuel production), especially at 11–15.

²0 Th e Charter came into force with the Lisbon Treaty, which reformed the European Union. Th e Charter will not apply in full in the UK, Poland, or the Czech Republic.

²¹ 198 US 45 (1905) (Supreme Court of the United States).

of contract.²² Freedom of contract and other economic liberties can be abused where the relevant parties have unequal bargaining power.

Th e right to freedom of movement of goods and services is not per se relevant to human rights, as opposed to a right of freedom of movement of persons, which barely exists under the WTO.²³ Human rights attach to individuals and occasion-ally groups;²4 they do not attach to economic commodities. Th ere has been robust debate over the merits of a ‘right to trade’, epitomized by the exchange of views between Petersmann and Philip Alston in 2002.²5 Such a right is of course heavily facilitated at the international level by the WTO. Indeed, a WTO panel has stated that ‘one of the primary objectives of the GATT/WTO as a whole is to produce certain market conditions which would allow this individual [trading and busi-ness] activity to fl ourish’.²6 In contrast, no right to trade as such is recognized in human rights law.

Despite the comment in the WTO panel decision cited immediately above, the WTO does not confer property, contractual or trading rights as individual rights. Individuals do not have direct rights under the WTO; only Member States have rights (and duties). However, such rights are indirectly if not directly granted:

States bring claims essentially on behalf of their traders. Th ese claims are usu-ally brought on behalf of large corporations; it seems doubtful that a State would engage in the time and expense of WTO litigation on behalf of small traders in an economically insignifi cant sector.²7 Corporations are not generally recognized as having human rights under international human rights law.²8

Th e divergence of WTO values from human rights values is more profoundly illustrated by the diff ering purposes underlying the rights recognized. Alston has cogently argued that WTO rights are simply not analogous to human rights due to their fundamentally diff erent rationale:

Human rights are recognized for all on the basis of the inherent human dignity of all per-sons. Trade- related rights are granted to individuals for instrumental reaper-sons. Individuals

²² Lochner has not been explicitly overruled, but has been wound back in cases such as West Coast Hotel Co v Parrish 300 US 379 (1937) (Supreme Court of the United States).

²³ Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 European Journal of International Law 815, 825. Th e GATS presages some liberalization in the movement of mobile labour forces under Mode IV of GATS, but few commit-ments in this regard have been made. It may be noted that international human rights law rarely recognizes a right of human beings to enter a foreign State, except under international refugee law and systems of complementary protection.

²4 Most internationally recognized human rights attach to individuals, though some collective rights are also recognized, such as the right of self determination in Article 1 of both Covenants.

²5 See Petersmann, above n 12, and Alston, above n 23; see also Robert Howse, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’ (2002) 13 European Journal of International Law 651.

²6 United States—Sections 301–310 of the Trade Act of 1974, WTO doc. WT/DS152/R (22 December 1999) (Report of the Panel) para 7.73.

²7 See also Caroline Dommen, ‘Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies’ (2002) 24 Human Rights Quarterly 1, 47.

²8 Exceptionally, artifi cial entities such as corporations may bring claims for human rights abuses before the European Court of Human Rights. See generally, Marius Emberland, Th e Human Rights of Companies: Exploring the Structure of ECHR Protection (Oxford University Press, New York, 2006).

Corporations are recognized as having rights under some domestic Bills of Rights, such as those in Canada or the US.

are seen as objects rather than as holders of rights. Th ey are empowered as economic agents for particular purposes and in order to promote a specifi c approach to economic policy, not as political actors in the full sense and nor as holders of a comprehensive and balanced set of individual rights. Th ere is nothing per se wrong with such instrumentalism but it should not be confused with a human rights approach.²9

Alston concedes that an exception to his proposition lies in the (indirect) intellec-tual property rights conferred under TRIPS, which arguably correlate with rights recognized under Article 15(1)(c) of the ICESCR. Ironically however, TRIPS has probably attracted the most sustained criticisms for its eff ects on human rights, as is discussed in Chapter 7.

Th e emphasis on freedom in WTO law is generally aimed at freeing trade from the constraints of government. Of course, much of human rights law is also aimed at freeing people from unreasonable government restrictions. However, as noted in Chapter 1, human rights obligations also entail positive duties to protect and fulfi l which require action, regulation and intervention by States. Constraints (or perceived constraints) on State capacities to implement their positive human rights duties give rise to one of the biggest perceived challenges posed by WTO rules to human rights. As stated by Dr Andrew Lang:

Th e international trade regime, it is said, has imposed new constraints on states’ policy choices, so that they are now less able to intervene in the economy to fulfi l their human rights obligations. Th e primary mechanism by which the human rights system achieves its objectives, the story goes, is losing its effi cacy in the face of a newly powerful and newly dominant neoliberal international economic order.³0

For example, States may wish to introduce price caps with regard to essential utilities, such as the provision of water or electricity, which limits the economic freedoms of water and electricity companies, in order to guarantee the right to an adequate standard of living for the poor under Article 11 of the ICESCR. Th ere is a suspicion, the merits of which will be discussed in ensuing chapters, that WTO rules unduly undermine the ability of States to adopt such measures.³¹

Indeed, Petersmann has criticized the ICESCR for its ‘neglect for economic lib-erty rights and proplib-erty rights’ as refl ective of an anti- market bias.³² However, Petersmann is possibly falling into the common trap of assuming that the ICESCR is solely premised on government control of the means to provide for economic and social rights. As noted in Chapter 1, governments have duties to respect ICESCR rights, and thus to refrain from measures which harm enjoyment of those rights, including unreasonable interferences with persons’ livelihoods and abilities to improve their own economic situation.³³ As an example relevant to free trade, Oxfam has cited a high tariff by some African countries on mosquito nets

²9 Alston, above n 23, 826.

³0 Andrew Lang, ‘Inter- regime Encounters’ in Sarah Joseph, David Kinley, and Jeff Waincymer, Th e World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar, Cheltenham, 2009) 184. Ironically, intellectual property protection requires considerable state intervention: see also p. 293.

³¹ See also Andrew Lang, ‘Th e GATS and regulatory autonomy: a case study of social regulation of the water industry’ (2004) 7 Journal of International Economic Law 801–38.

³² Petersmann, above n 12, 628–9. ³³ See also Chapter 1, text at notes 64–5.

as a measure that costs lives by increasing the exposure of the poor to malaria, in breach of the right to health in the ICESCR (and probably the right to life in the ICCPR).³4 From a human rights point of view, the key is in part to ensure an appropriate balance between regulation and non- interference. Also from a human

as a measure that costs lives by increasing the exposure of the poor to malaria, in breach of the right to health in the ICESCR (and probably the right to life in the ICCPR).³4 From a human rights point of view, the key is in part to ensure an appropriate balance between regulation and non- interference. Also from a human