The WTO as a node of global governance: economic regulation and human rights discourses.

AuthorPicciotto, Sol

Abstract

The WTO acts in a number of ways as a global governance node, a point of intersection of a variety of regulatory networks. The interaction of WTO rules with human rights norms is both another example of such normative interactions, as well as raising more general questions about the relationship of the discourses and practices of economic regulation and those of human rights. The article examines first the procedural and institutional question of the possible inclusion of human rights principles explicitly within the WTO framework; secondly, the more substantive question of the relationship between the perspectives and discourses of trade and human rights and whether and how they could be reconciled, discussed in the context of two salient examples, medicine and food. In conclusion, it returns to the institutional issues by discussing the strategic aspects of the trade-human rights debates in the context of the role of the WTO as a node of global governance, and the critiques and challenges to it.

Keywords: World trade organisation, human rights, medicines, food, global governance.

  1. Introduction: Collision or Complementarity of Discourses? In the past few years there has been impassioned debate about the compatibility of the agenda and principles for trade liberalisation pursued by the World Trade Organisation (WTO) with international human rights norms. Some critics of the WTO have attacked both its general orientation to trade liberalisation and specific WTO rules, as undermining human rights. Specific issues which have been said to demonstrate the conflict between trade liberalisation and basic human rights include restrictions placed by WTO rules on economic boycotts of countries on the grounds of violations of human rights standards, the impact on access to medicines of strong patent rights under the WTO's agreement on Trade Related Intellectual Property Rights (TRIPS), and the effects of liberalisation commitments under its Services agreement (GATS) on essential services such as water.

    At the same time, there have been significant initiatives and proposals, both political and academic, for a rapprochement of the free trade and human rights agendas. From the academic perspective the most fervent advocate of the complementarity of these two approaches has been Ernst-Ulrich Petersmann, who has for some years and in many repeated writings proposed a combination of trade and human rights from a social-market perspective based on ordo-liberal theory. (2) This led to a memorably vehement clash with Philip Alston in the pages and on the website of the European Journal of International Law, in which Alston described Petersmann's approach as an attempt to 'hijack ... international human rights law in a way which would fundamentally redefine its contours'. (3)

    Institutional initiatives have come from the UN High Commissioner for Human Rights (UNHCHR) and the Commission on Human Rights (CHR), who have produced a series of reports both on the general theme of the impact on human rights of globalisation and on the effects of specific aspects of the WTO agreements, notably of the agreements on agriculture, intellectual property (TRIPS), and services. (4) Although these exercises seem to have been viewed initially with some suspicion and concern by the trade community, it seems that, as they have proceeded, some fruitful interchange of views has developed between the human rights and trade perspectives. (5) This article explores the implications of introducing human rights discourses and principles into the framework of economic regulation institutionalised in the WTO. The WTO acts in a number of ways as a global governance node, ie a point of intersection of a variety of regulatory networks (Picciotto, forthcoming). These include preferential trade and investment agreements between two or more WTO members, which have begun to proliferate as the momentum for multilateral negotiations has been lost, as well as a range of regulatory arrangements governing substantive matters, such as health and environmental protection standards, or intellectual property rights. Thus, the interaction of WTO rules with human rights norms is both another example of such normative interactions, as well as raising more general questions about the relationship of the discourses and practices of economic regulation and those of human rights.

    The article will examine three aspects. First is the procedural and institutional question of the possible inclusion of human rights principles explicitly within the WTO framework. This leads on to the second and more substantive question of the relationship between the perspectives and discourses of trade and human rights and whether and how they could be reconciled, which will be discussed in the context of two salient examples, medicine and food. In conclusion, I will return to the institutional issues by discussing the strategic aspects of the trade-human rights debates in the context of the role of the WTO as a node of global governance, and the critiques and challenges to it.

  2. Law and Human Rights in the Legitimation of the WTO

    2.1. The Rule of Law in the World Economy

    The legitimacy of the WTO is seen to derive from law, demonstrated by the great stress placed on the WTO as embodying the Rule of Law in world trade. Thus, after the organisation was shaken by the debacle at Seattle in December 1999, the then Secretary-General Mike Moore delivering a speech on 'The Backlash against Globalisation?' concluded as follows:

    'The WTO is a powerful force for good in the world. Yet we are too often misunderstood, sometimes genuinely, often wilfully. We are not a world government in any shape or form. People do not want a world government, and we do not aspire to be one. At the WTO, governments decide, not us.

    But people do want global rules. If the WTO did not exist, people would be crying out for a forum where governments could negotiate rules, ratified by national parliaments, that promote freer trade and provide a transparent and predictable framework for business. And they would be crying out for a mechanism that helps governments avoid coming to blows over trade disputes. That is what the WTO is. We do not lay down the law. We uphold the rule of law. The alternative is the law of the jungle, where might makes right and the little guy doesn't get a look in.' (Moore, 2000).

    The theme of the WTO as an institutionalisation of the rule of law in the world economy has been debated among academic commentators under the rubric of the 'constitutionalisation' of international economic law. The term was applied to its predecessor, the General Agreement on Tariffs and Trade (GATT) by the doyen of trade lawyers, John Jackson, who coined the term the 'trade constitution' in the following terms:

    It is a very complex mix of economic and governmental policies, political constraints, and above all ... an intricate set of constraints imposed by a variety of "rules" or legal norms in a particular institutional setting. ... This "constitution" imposes different levels of constraint on the policy options available to public or private leaders. (6) The current WTO Director-General, Pascal Lamy, has stressed the 'integrated and distinctive' nature of the WTO's legal order, and has considered its relationship to the legal systems of other organizations with sensitivity to accusations of being hegemonic (Lamy, P, 2006, p 977). However, he is forthright in stating the WTO's basic philosophy as being that 'trade opening obligations are good, and even necessary, to increase people's standards of living and well-being' (Lamy, P, 2006, p 978), and although he points to various means by which the WTO legal system contributes to an overall coherence of international law, he accepts that there are 'cracks' in that coherence (Lamy, P, 2006, p 982).

    From a political perspective, Stephen Gill has attacked the 'new constitutionalism' represented not only by the WTO but other institutions of global governance as a 'project of attempting to make transnational liberalism, and if possible liberal democratic capitalism, the sole model for future development' (Gill, S, 2003, p 132). Gill argues that the global constitutionalisation project is well under way, and headed in a clearly undesirable, neo-liberal direction. A detailed study by Deborah Cass, however, suggests that it is inappropriate or premature to assume that the constitutionalisation of the WTO is a fait accompli (Cass, D, 2005). She identifies six core elements of the accepted meaning of the term, and outlines three models or 'visions' of WTO constitutionalisation: (i) institutional managerialism ('management of policy diversity between states by institutions and rules'), (ii) rights-based constitutionalisation (recognition of a right to trade, enforced in national laws) and (iii) judicial norm-generation (development of a WTO constitutional system by the Appellate Body, adopting constitutional procedural rules and incorporating domestic subject matters such as health) (ibid., pp 21-22). The formal inclusion of human rights into the WTO could form part of the latter two models. This poses the additional question of whether, if the WTO were to evolve in a 'constitutionalising' manner, the inclusion of human rights in its core principles might ameliorate, or only enhance, the neo-liberal dominance denounced by Gill and others. The next two sections will consider the implications and prospects for inclusion of human rights within a project of WTO constitutionalisation, first via judicial norm-generation, and then in a more formal rights-based system.

    2.2. Judicial Constitutionalisation: WTO Rules OK?

    Constitutional norms could emerge through the potential role of the WTO's Appellate Body (AB), as the apex of its dispute settlement system (DSS), in developing the jurisprudence of the WTO. This would follow the trail blazed by the European Court of Justice, which...

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