Document Type

Article

Publication Date

Winter 2012

Abstract

As World Trade Organization ("WTO") Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade's huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade's adverse effects. Employing the perspectives both of trade negotiators and students of this halting progress toward the integration of trade and human rights, we have concluded that the single greatest barrier to engaging in regional trade agreements ("RTAs") openly and unequivocally to reduce global poverty through human rights implementation is the near-impenetrable complexity of human rights norms.

Captured within dozens of United Nations human rights treaties and a growing corpus of customary international norms, human rights law embraces literally hundreds of specific entitlements, each by U.N. guarantee designated as indivisible, interdependent, and interrelated. This foreboding array of obligations, each ostensibly of equal rank, whose legal intricacies are sometimes beyond the experience and training of trade ministries, explains the reluctance of trade negotiators to undertake the responsibility for further integration of trade rules with human rights, and does so more credibly than the oft-cited reason that trade rules succeed only when they single-mindedly pursue economic growth.

The breakthrough in worker rights may be attributed directly to the International Labor Organization's ("ILO's") endorsement, at WTO urging, of four core human rights standards inarguably tied to international trade. The ILO's Work Declaration chooses those core standards for workers that are inarguably and inextricably linked to trade without downplaying the importance of the hundreds of worker protections identified in dozens of other ILO conventions. This choice has freed trade negotiators to concentrate on incorporating these core worker rights in regional trade agreements, a manageable task that has met with great success.

Encouraged by the ILO precedent, we identify those core standards in each of six categories of human rights that are so closely linked to trade and so fundamental in importance that their exclusion from RTAs cannot reasonably be argued. We justify in some detail our selection of those core aspects of the human rights of women, indigenous cultures, health, the environment, and democratic governance that stand at the same level of importance to trade as do the four core labor standards identified by the ILO. With respect to the core labor standards, we explain in greater detail the specific obligations placed on states for implementation of worker rights in RTAs.

By identifying a limited and manageable body of fundamental human rights standards in those human rights fields most closely affected by trade, we believe that trade negotiators may more successfully use RTAs to accomplish the symbiosis of trade and human rights that is inherent in their basic objectives. This symbiosis can accomplish the goal of increased economic growth together with increased standards of well-being of civil society.

We begin our study with the most difficult case to make: that there are core standards in the emerging right to democracy that must be included in RTAs regardless of the form of governance of the parties. We next take up the human rights of women most often implicated by trade liberalization and proceed, in turn, to treat the core human rights of health, of indigenous populations, and of workers. We conclude by identifying core standards of the emerging human right to a healthy environment.

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