4.2 Philosophical and Structural Divides
(A) Introduction
Commentators perceive a fundamental tension between international human rights law and international trade law based on their supposed commitment to different values. For example, international trade law is utilitarian—devoted to the most economically efficient outcome and to the satisfaction of market preferences—while human rights law is deontological—premised on minimum standards of treatment that recognize the moral worth of each individual.1 For example, the WTO TRIPS Agreement employs a cost-benefit approach to balance the need to encourage invention (by giving patent holders monopolistic rights) against the conflicting need to ensure wide dissemination of technology to permit fast development in the Third World and deliver lifesaving medicines to the sick (by allowing compulsory government licensing and actions against anticompetitive practices). The WTO’s SPS Agreement balances the interest in food safety against the policy of unrestricted trade by requiring solid scientific evidence to justify import restrictions.
Even so, characterizing the WTO as utilitarian and human rights law as doctrinal is far too simplistic to withstand scrutiny. Human rights law is indeed deontological, in that exploitative child labor does not become valid when the scale of economic benefits reaches a certain point—for example, by attracting foreign direct investment that otherwise would not bring its job-creating project. Torture cannot be justified under human rights treaties by the importance of the information to be obtained. But this does not mean that human rights law is immune to trade-offs, as most clearly demonstrated in the environmental protection movement. The concept of “sustainable development” itself, which is the central paradigm of the mainstream environmental protection movement, assumes that growth will continue, if for no other reason than to eliminate poverty.
One also should characterize as compromise on the part of human rights law the acceptance, and even promotion, of market systems and economic growth in democratic societies, despite the imperfections of globalization in realization of human rights goals.2 The human rights policies given priority over trade’s fundamental maxims by GATT Article XX, including health, public morals, and natural resources, put the lie to claims that trade policies cannot be normative and nonutilitarian. Hence, the purpose of this volume: to show that it is neither trade’s utilitarianism nor human rights’ humanitarianism that governments and civil society should pursue as if they were unrelated. Rather it is the utilitarianism and idealism of both, working with their synergies and strengths, that should be the focus of policy development. These are disciplines that, when approached together, can indeed make the world a better and more prosperous place.
(B) WTO as Separate Entity from UN Structure
One also is asked to accept that the WTO’s ideological placement, spinning unfettered outside the protective galaxy of the UN system, where human rights law revolves around a unifying centrality, severely handicaps trade’s ability to act with human rights motivation. To be sure, the three legs of the Bretton Woods “stool” of international economic and financial entities were established outside the firmament of the United Nations by conscious design, with the Bretton Woods entities as the private, economic arm to the public, political United Nations. Architects of post–Second World War international institutions saw great danger in the decisions by politicians following the First World War to erect high tariff barriers, manipulate exchange rates, and otherwise create the isolation that made possible the rise of demagogues amid the squalid economic conditions of the Great Depression.3 Thus, the political institutions whose charge was to secure the peace revolved around the public United Nations, while the international economic institutions of the World Bank, the IMF, and GATT would be established as private entities with a purely economic role and run by technocrats, not diplomats.4
One might also identify a critical difference in the evolution of trade and human rights rules. Within a very few years after the Second World War, the modern human rights regime had mushroomed into a comprehensive, revolutionary, holistic codification of human rights that an outside observer might characterize as burdened with unrealistically high expectations. Trade rules began with humble promises and built their foundation with small steps over fifty years of nearly continuous rounds of multilateral negotiations, each proclaiming slightly more ambitious measures to counteract the natural inclination of states to protect their national industries. In addition, because the trade rules began without an institution to house them (the WTO created in 1995 is the deferred realization of the “International Trade Organization” first proposed in 1947), the institutional framework that emerged a half century later boasted an effectiveness born of five decades of experience with administering global trade rules without an infrastructure.
To be sure, this classical view of the separation of economic institutions from public international law held little promise for integration of human rights, as reflected by the Articles of Agreement of the World Bank, which provide that loans shall be used only for “economy and efficiency and without regard to political or other non-economic influences or considerations.”5 In the early days, the Bank’s General Counsel went so far as to opine that the Bank was prohibited from compliance with UN decisions on human rights because the objectives of the International Bill of Human Rights were contradictory to the Bank’s financial and economic mandates.6 The IMF reached a similar conclusion.7
Of course, these views have dramatically changed. The World Bank’s definition of poverty is evidence of the transformation (see epigraph to Chapter 12). Yet, these early traditional views are similar to those of the GATT classicists, who hold that the WTO is a self-contained entity that human rights advocates must allow to pursue its free trade mission unburdened by other public international law, including human rights claims.8 This view was difficult to maintain even at GATT’s beginning, because it was forced to coexist with the inescapable reality that GATT’s drafters had accorded overriding importance to certain explicitly exempted human rights policies, such as protection of public health, prisoner rights, and the environment.9 Nonetheless, the private, classical view received further impetus from the failure of the International Trade Organization to receive approval, which meant that until 1995, the GATT existed as a contract instead of a treaty.10
With this isolationist structure built into their foundations, each of the economic institutions has been forced to take sometimes wrenching measures to reverse course on the role of human rights. Even so, the World Bank and the IMF have taken notable recent steps to polish their human rights reputations.11 As to the WTO, in its first decision, the Appellate Body of the Organization debunked the notion that trade treaties operate in a vacuum separate from other public international law by pointing out that “the GATT is not to be read in clinical isolation from public international law.”12 Like international human rights law, WTO law is a branch of public international law,13 which is sufficient to dismiss the classical view that the WTO is a self-contained body of law that constitutionally can ignore human rights.
The origin of the WTO and the other economic institutions in a non-UN context surely has handicapped their human rights records, but only in the sense that history has delayed their recognition of the need to come to terms with the human rights consequences of their actions. The Bretton Woods entities may no longer claim a constitutional or other legal debarment from human rights concerns.
(C) Statist WTO Structure Versus Individualistic Human Rights Regime
The WTO assumes without inquiry that a state’s titular leaders are the appropriate representatives for the state. WTO’s rules directly impose disciplines on states, so the officials who can implement these prescriptions are accepted at the WTO. The result is that any form of political or social organization is acceptable to the WTO, as well as any treatment of a state’s