Chapters 5 on citizenship, 7 on health, 9 on trafficking, 12 on poverty, and 13 on democracy touch on intersections that are less evident, perhaps because trade’s influence on these human rights is more difficult to capture in a two-second sound bite with a poignant image that can be carried on television stations around the globe. For example, trade is transforming the very idea of citizenship as a method of participation in the decision-making of the government. Trade is empowering massive transnational entities that, because of their purchasing power, can sway government policy on employment and the environment. Similarly, the concept of democracy, when analyzed in the framework of economic rights, entails much more than the ballot box. Trade in the context of democracy can be a double-edged sword. While the West has deployed its economic power to insist on democracy, sometimes taking a narrow view that over-simplistically equates democracy with elections, it has in so doing eroded democracy, wearing thin the social safety net that the most marginalized sorely need. As the chapter on poverty shows, trade’s promise of prosperity has not been realized for all, requiring measures to be adopted to ensure that those who have fallen through the cracks are also afforded some opportunity. Lastly, the trafficking chapter shows how trade, if carried out with blinders on, as a field in a vacuum, can unwittingly contribute to the most egregious of human rights abuses.
Chapter 14 on economic sanctions explains how a tool to enforce human rights sometimes causes human rights deprivations. This ostensible contradiction occurs because of the primacy given by the North/West to civil and political rights over social and economic rights. Inevitably, as in the case of Cuba, this divide creates apparently insurmountable conflicts.
In our conclusion, chapter 15, we try to pave the way for the future, where human rights and trade coexist as parts of a whole and thus must be cognizant and supportive of each other. Trade and human rights cannot possibly be perceived as isolated, as they have been for too long. Yet, the integration must be purposeful and proactive so that trade’s powerful reach can work not only for economic expansion and well-being but also for the flourishing of human rights. Well fed, healthy, educated, and fairly compensated workers are good for business. Trade can be good for people; people are necessary for trade. Social, cultural, economic thriving of the individual ought to be one of the focal points of trade—the best result trade can offer to confirm its promise of prosperity.
1
Global Concepts
International Law Primer
1.1 Overview
This chapter provides an overview of the sources of international law and the practice of international rule formation. These principles are central to the making both of trade and of human rights agreements, as well as to the development and evolution of trade and human rights norms, and thus serve as a prerequisite for the reader unfamiliar with, or in need of a refresher lesson in, the basic rules of understanding international law.
1.2 International Law and International Law-Making: General Concepts
In this first chapter, we aim to introduce international law and international law-making. This information is important because both human rights and trade treaties are international agreements that must be concluded pursuant to, as well as comport with, established international norms. We do not anticipate that readers will need to develop an expertise in international law to engage our materials, but we find this basic introduction advisable in order to provide a foundation for all readers, especially those not versed in international law. This is a straightforward and basic introduction; readers with a background or training in the international field may well opt to skip this opening chapter and start with chapter 2.
History traces the development of rules governing relations between or among different peoples to the end of the Roman Empire when the independent and separate states that emerged needed to develop rules for interaction. The system that emerged was largely founded on the Roman system. In fact, the Roman Empire developed a set of rules—the jus gentium—to govern the relations between Roman and non-Roman citizens, in contrast to the jus civile, which applied exclusively among Roman citizens. The jus gentium system incorporated principles of equity in natural law that contemporary scholars analogize to the source of international law called “general principles of law recognized by civilized nations” contained in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ).1 Thus, one can trace the roots of international law to the need that arose when the formerly unified Roman Empire splintered into diverse nation-states that had to interact on a basis of sovereign equality and mutual respect. Thereafter, increased trade, improvements in navigation, and the discovery of new lands accelerated the development of the new law of nations.2
The Thirty Years War (1618-48) in central Europe is a significant event in the history of international law as it signified the end of one imperial reign over all of Europe. Additionally, it marked the emergence of independent nation-states as the primary actors in the global setting. Such advent of independent sovereigns was key to the evolution of international legal principles as it exposed the need to create norms to govern interactions between and among equals.3
In The Law of Nations, Brierly defined international law as “the body of rules and principles of action which are binding upon civilized states in their relations with one another.”4 This definition reflected the early view that international law applies exclusively to states. The American Law Institute’s Restatement of the Law Third, Foreign Relations Law of the United States defines international law as “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”5 This definition reveals that international law no longer is the exclusive province of states and international organizations, but also deals with their relationships with individuals and corporations.
Article 92 of the United Nations Charter, itself a treaty ratified by Member states, establishes the ICJ as the principal judicial organ of the United Nations. The provisions of the Statute of the ICJ, a treaty to which all members of the UN are parties, set out the principles that constitute the ICJ and pursuant to which it functions.
Article 38 of the Statute sets out the four sources of international law:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations; [and]
d. … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.