Confronting trade-related human rights in a GATS-compatible world.

• Author: Kelsey, Jane

Abstract

Focusing on the 'services economy' and the General Agreement on Trade in Services (GATS) this article analyses the ideological, institutional, policy and operational layers of 'coherence' that advance the hegemonic power of the triumvirate of the Bretton Woods institutions and the WTO; revealing their distinct, yet synergistic, functions. Although these diverse levels rarely involve active collaboration, the cumulative effect is a seemingly impregnable edifice. The author contends that despite this 'impregnable' appearance, they have failed to drown out the dissident voices of the disempowered and dispossessed who demand alternatives to neoliberalism or to subdue those international organisations that still insist that services are inescapably social. This persistence suggests that the 'trade-related' human rights and development paradigm is more fragile than is often recognised. That, in turn, poses a challenge to articulate counter-hegemonic concepts of human rights and development in ways that can articulate an ideological platform for a post-neoliberal paradigm.

Keywords:

General Agreement on Trade in Services (GATS), Trade-Related Human Rights, Bretton Woods Institutions, World Trade Organisation, Millennium Development Goals, Neoliberalism

1. Introduction

   With remarkable prescience, Upendra Baxi observed in 1994 the 'emergence of a market-friendly (or specifically trade-related) human rights paradigm' that displaced 'human' human rights (Baxi, U, 1994). In a 'post-Dunkel' world, (1) states were becoming more the enablers of capital than the representatives of their citizens. Transnational corporations were the new recipients of internationally guaranteed and enforceable rights, with no corresponding legal responsibilities.

   Paradigm shifts as radical as this do not just happen. They are impelled by material forces, in this case the reorganisation of capital on a transnational scale from the 1960s, and legitimised by a new hegemony, being the ideology and policy prescription of neoliberalism. By the time Baxi made this observation in the mid-1990s, the 'services economy' constituted the major platform for this rapid transformation in the capitalist economy. Services ranging from the financial, telecommunications and transport infrastructure to education, health and water promised vast and expanding profits for transnational corporations. To maximise that potential, the entire spectrum of services had to be stripped of their social essence and reduced to commodities that could be freely traded within globalising markets. States had to be encouraged through binding international treaties to exercise their regulatory powers in the economic interests of transnational service suppliers.

   Those same services are the glue that binds our multiplicity of daily activities into a social existence and provide many of the necessities of life. The quality, affordability and accessibility of services like water, education, healthcare, electricity and communications hold the key to social wellbeing, cohesion and stability--and often the sustainability of life itself. They are at the heart of states' international human rights obligations, imposing priorities, processes and outcomes that are antithetical to trade in services agreements. Indeed, intervention in pursuit of those obligations is conceived as a potential barrier to trade.

   The paradigm shift from a social to a market conception of services was driven by the 'hierarchy of inter-state power with the USA at its apex, along with its G7 partners' who oversaw 'an increasingly global system of political economy that serves to redistribute power and intensify inequality' (Gill, S, 2003, p 189). This transition was achieved at the national level through neoliberal policies of liberalization, deregulation, corporatisation, privatisation and public/private partnerships. The primary catalysts were the International Monetary Fund (IMF) and World Bank in the global South and the Organisation for Economic Cooperation and Development (OECD), which acted as the policy incubator for Northern countries.

   The role of enabler, catalyst and enforcer of open international services markets fell to the General Agreement on Trade in Services (GATS), a multilateral regime within the World Trade Organisation (WTO) that binds all WTO members. The GATS was essentially the creation of, and for, the powerful US corporate services lobby under the patronage of US trade officials (Kelsey, J, forthcoming). More than any other WTO 'trade' agreement it reaches deep behind the border, guaranteeing rights of entry and commercial operation to foreign services firms and imposing market disciplines on the policy and regulatory choices of national governments. The GATS, in turn, sets the ideological parameters and minimum legal content for a plethora of bilateral and regional agreements that have increasingly superseded the multilateral regime in recent years.

   The triumvirate of the Bretton Woods institutions and the WTO effectively trumps any other international organisation that champions a competing human rights and development paradigm. Their hegemonic power is advanced under the rubric of 'coherence'. This article analyses the ideological, institutional, policy and operational layers of 'coherence' to reveal their distinct, yet synergistic, functions. Although these diverse levels rarely involve active collaboration, the cumulative effect is a seemingly impregnable edifice. Despite this appearance, they have failed to drown out the dissident voices of the disempowered and dispossessed who demand alternatives to neoliberalism or to subdue those international organisations that still insist that services are inescapably social. This persistence suggests that the 'trade-related' human rights and development paradigm is more fragile than is often recognised. That, in turn, poses a challenge to articulate counter-hegemonic concepts of human rights and development in ways that can articulate an ideological platform for a post-neoliberal paradigm.

2. Ideological Coherence

   The Post World War Two era of international law was dominated by the human rights and development agenda. Anghie persuasively argues that dominant Western values and concepts of individual rights and sovereign statehood were challenged, but not rejected, by vocal Southern governments and activists (Anghie, A, 2005). The resulting international legal instruments were highly imperfect and provided sites for ongoing contest over gender, culture and indigeneity, religion, collectivity versus individualism, decolonisation, self-determination and more. Despite these tensions, there was a common basic premise that the individual or collective possessor of rights was a social being and that states had a positive duty to regulate and actively intervene to achieve socially infused development objectives. The resulting international obligations that were imposed on states were often incorporated into domestic constitutions, bills of rights and other legal norms. Services were at the core of these obligations, variously described in terms of human rights, public goods or universal service obligations.

   The trade in services regime conceives of those same services solely as immaterial commodities that are exchanged between buyers and sellers within increasingly borderless markets. Binding trade in services agreements constitute what Bronwyn Morgan calls 'meta-regulation': by regulating the process of regulation itself, they aim to institutionalize the presumption of pro-market governance within every-day routines of governmental policymaking (Morgan, B, 2003). Their 'constitution-like' characteristics pre-commit governments to maintain a regime of embedded neoliberalism, thereby depriving themselves and their successors of the autonomy to explore alternative ways of regulating their countries' services (Schneiderman, D, 2000). From a neoliberal perspective, governments emulate Ulysses by tying 'themselves to the mast to escape the siren-like calls of pressure groups' (Hoekman, B, and Kostecki, M, 1995, p 25). Development' becomes synonymous with facilitating the participation of poorer countries within this global services market.

   When the social and market prescriptions for norms, instruments and institutional mandates conflict in this way, they must either co-exist in an uncomfortable disjuncture or be reconciled by subordinating one to another. From the mid-1990s the human rights and development discourse has been progressively co-opted within the 'trade-related' paradigm. The former has not disappeared. Rather human rights has been reinvented through the medium of the Millennium Development Goals (MDGs) and the claims of the IMF and World Bank to advance 'pro-poor' policies through their Poverty Reduction Strategies, and are embedded within the trade-related notion of 'development'.

   The primacy of 'trade-related' over 'human' human rights required legitimation. Three months after the WTO, and hence the GATS, came into being on 1 January 1995 a UN Summit on Social Development was convened in Copenhagen. In the opening paragraph of the Copenhagen Declaration the assembled heads of state and ministers promised to 'promote dynamic, open, free markets, while recognizing the need to intervene in markets' and committed their governments to full implementation of the Uruguay round agreements. While the governments resolved in paragraph 9(q) to 'monitor the impact of trade liberalization on the progress made in developing countries to meet basic human needs', they would pay 'particular attention to new initiatives to expand their access to international markets.' (WSSD, 1995)

   Prior notions of social development were being turned on their head. The future of the world's poorest people in Africa and other continents was now tied to free markets and free trade and the fostering of international cooperation to implement the macroeconomic...