International Trade and Human Rights

by

Anthony E. Cassimatis, Catherine E. Drummond

• LAST REVIEWED: 12 May 2017
• LAST MODIFIED: 30 June 2014
• DOI: 10.1093/obo/9780199796953-0098

Introduction

Article 55(a) of the United Nations Charter provides that the UN shall promote “higher standards of living, full employment, and conditions of economic and social progress and development.” Article 55(c) goes on to commit the UN to the promotion of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” The preambles to the General Agreement on Tariffs and Trade (GATT) (1947) and the Agreement Establishing the World Trade Organization (WTO Agreement) (1994) both echo Article 55(a) of the Charter, referring to “raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand.” Notwithstanding the apparent link between the objectives of international trade and human rights in Article 55 of the Charter and international trade instruments, the relationship between international trade and human rights remains controversial. Indeed, globalization appears to have exacerbated this controversy. The functional specialization of different areas of international law (including international trade, human rights, and environmental regulation) has increased the potential for institutional and normative conflict and fragmentation. Inconsistency or incoherence in the application of international norms or the operation of institutions (institutionally, the WTO is not a specialized agency of the UN) in each of these functional areas is increasingly likely. Responses to these challenges have been disparate. Some international trade scholars have sought to limit recourse to international human rights standards, seeking instead to isolate international trade law from outside influences. Other trade law scholars have sought to expand the potential linkages between international trade and human rights by, for example, promoting the world trading system’s cornerstone principle of economic efficiency as a means to stimulate economic growth and increase resources for the pursuit of human rights. Some human rights scholars have sought to utilize the sophisticated dispute settlement mechanisms of international trade law in the service of ensuring greater respect for human rights. Other human rights scholars have attacked international trade law and institutions as potential sources of human rights violations, focusing, in particular, on the impact of trade liberalization on the human rights of those in extreme poverty. The disparate positions assumed by scholars appear also to be reflected in the varying positions assumed by states. Historically, a significant number of developing states advocated human rights–related trade measures as a response, for example, to colonialism and apartheid. More recently, a significant number of developing states have opposed the use of unilateral coercive trade measures as responses to alleged human rights violations. Concerns have been raised about intervention in the internal affairs of states and the use of trade measures for protectionist purposes (undermining the comparative advantage of developing states). Human rights concerns have also been raised. International trade restrictions on, for example, compulsory licensing regimes for pharmaceuticals have been seen as threats to effective responses by developing states to global and regional pandemics. While negotiated “political” solutions to these and related controversies appear essential, general international law also has a role to play in minimizing or avoiding normative and institutional fragmentation of international trade and human rights.

General Overviews

The framers of the UN Charter accepted that important linkages existed between economic and social issues. Howse (in Alvarez 2002) has, for example, identified the normative perspectives of important participants in the negotiations that established the post–World War 2 international regulatory system. During the Cold War and even more so today, the increasing functional specialization of institutions and instruments, economic and social, has made the identification and development of linkages between trade and human rights more complex. Functional specialization has also manifested itself in more detailed, complex regulation in the areas of trade, human rights, and the environment. The potential for conflicts and incoherence between these functional areas led scholars, at least as early as the 1980s, to begin addressing issues of linkage. In the 1990s, important collections of essays, such as Compa, et al. 1996, were published. The possibility of including in trade agreements a “social clause,” focusing predominantly on labor rights, was a major focus of the early literature. Labor rights as human rights were recognized by the international community as early as 1948 in the Universal Declaration of Human Rights. More recent scholarship has expanded to consider conceptual issues raised by linkage. Alvarez 2002; Abbott, et al. 2006; and Garcia 2003 are all important contributions to these conceptual inquiries. The exploration of conceptual and practical issues rose to a new level in Cottier, et al. 2005. While human rights and environmental regulation are not based on common principles and appear to be at different stages of development, similarities in terms of linkage with international trade are nonetheless apparent. This fact is illustrated in Francioni 2001. Another important perspective in the literature has been the scholarship focusing on the alleged perverse consequences of international trade regulation. Economists have tended to focus on allocational efficiency of trade liberalization, whereas more critical scholarship has emphasized distributional issues and inequalities (including in relation to gender) of the reduced regulatory autonomy of states that accompanies trade liberalization. Joseph, et al. 2009 is an important contribution in this regard.

• Abbott, Frederick M., Christine Breining-Kaufmann, and Thomas Cottier, eds. International Trade and Human Rights: Foundations and Conceptual Issues. Ann Arbor: University of Michigan Press, 2006.

  NNNThis collection and Cottier, et al. 2005 are the fruit of a large research project on trade and human rights supported by various philanthropic institutions and the American Society of International law. This collection brings together the writings of scholars who examine the theoretical and practical foundations of linkages between trade and human rights.

• Alvarez, José, ed. Special Issue: Symposium: Boundaries of the WTO. American Journal of International Law 96.1 (2002).

  NNNA valuable examination of competing theoretical legal and economic considerations relevant to “trade and . . .” debates. Includes Kyle Bagwell, Petros C. Mavroidis, and Robert W. Staiger, “It’s a Question of Market Access” (pp. 56–76), which applies a “law and economics” methodology to assess linking trade with other areas of legal regulation; and Robert Howse, “From Politics to Technocracy—And Back Again: The Fate of the Multilateral Trading Regime” (pp. 94–117), which examines the dominant political perspectives of the drafters of the GATT and the institutional development of the GATT system.

• Compa, Lance A., and Stephen F. Diamond, eds. Human Rights, Labor Rights, and International Trade. Philadelphia: University of Pennsylvania Press, 1996.

  NNNA collection of essays from the 1990s providing a useful background on the “Social Clause” debate in relation to GATT. Chapter 4, Philip Alston, “Labor Rights Provisions in US Trade Law: ‘Aggressive Unilateralism?’” (pp. 71–98), is a valuable analysis and critique from an expert human rights scholar of US legislation linking trade- and labor-related human rights.

• Cottier, Thomas, Joost Pauwelyn, and Elisabeth Bürgi Bonanomi, eds. Human Rights and International Trade. Oxford: Oxford University Press, 2005.

  DOI: 10.1093/acprof:oso/9780199285822.001.0001

  NNNAn important collection of papers by leading scholars on the interrelation of trade and human rights, writing from many perspectives. For example, important reflections on differences between legal and international relations scholarship are offered by Laurence R. Helfer, “Mediating Interactions in an Expanding International Intellectual Property Regime” (pp. 180–191).

• Francioni, Francesco, ed. Environment, Human Rights & International Trade. Oxford: Hart, 2001.

  NNNA collection of essays by trade, human rights, and environmental scholars on trade measures for environmental and human rights purposes. It includes, Christopher McCrudden and Anne Davis, “A Perspective on Trade and Labor Rights” (pp. 179–198) and Sarah H. Cleveland, “Human Rights Sanctions and the World Trade Organisation” (pp. 199–262).

• Garcia, Frank J. Trade, Inequality, and Justice: Toward a Liberal Theory of Just Trade. Ardsley, NY: Transnational, 2003.

  NNNAn application of Rawlsian normative theory to international trade.

• Joseph, Sarah, David Kinley, and Jeff Waincymer, eds. The World Trade Organization and Human Rights: Interdisciplinary Perspectives. Cheltenham, UK: Edward Elgar, 2009.

  NNNEdited by legal scholars specializing in international trade and human rights, and contributed to by economists, political scientists and philosophers, this collection of essays draws together the multidisciplinary strands of the debate on human rights and international trade. The interdisciplinary approach allows readers to comprehend the depth of complexity entailed in assessing whether human rights and trade are compatible and how to bridge the current divide that exists.