|Book Title||The Human Rights Impact of the World Trade Organisation|
|Book Author||Harrison, James|
|Bibliographic Information||Hart Publishing Ltd., 2007, Pages : 276, $100.00, ISBN 9781841136936|
The Human Rights Impact of the World Trade Organisation. By James Harrison. Portland: Hart Publishing, 2007. Pp. 276. $100.00.
Reviewed by Anna Pitaraki.
The relationship between trade and human rights has long been disputed. Yet, the yield remains minimal, perhaps because the relationship between these two regimes is only one aspect of a wider debate “about the extent to which international trade law rules are adequately considering [...] legitimate social justice concerns” (p.5). Some believe that WTO obligations somehow encourage or otherwise tolerate human rights violations[i]
; others argue that a country which systematically violates basic human rights cannot be expected to faithfully execute and implement the processes that WTO agreements require[ii]
, whereas some utilize human rights as a justification for deviations from WTO rules, and compliance with human rights as a prerequisite for the granting of preferences and other privileges[iii]
. Harrison posits his book in the center of this conundrum. His stated objective is “the examination of the impact of international trade rules on the promotion and the protection of human rights”(p.2).
Harrison attempts first, to analyze the current policies and practices of the WTO with regards to human rights; second, to set out a legal framework for analyzing different types of issues that arise in the international trade law context from a human rights perspective; and third, to provide an in-depth analysis of how trade measures impact the protection and promotion of human rights. In the last three chapters of his book, Harrison presents future strategies for the amelioration of human rights within the WTO (p.2). The author employs human rights as a methodological approach to examine the breadth and the width of issues that potentially surface in the context of the WTO, particularly within of the Dispute Settlement System, and he assesses the interaction between the two regimes with an eye towards conflicts.
However, often enough, the distinction between the object of scrutiny and the methodology of scrutiny gets blurred with the methodology becoming the object of investigation and vice versa. The title of the book tacitly betrays this confusion. An unsuspected reader would normally expect to read about the impact of trade law on human rights: when and how the two sets of rules intersect, when and why the trade rules take precedence, etc. Instead, there are parts of the book wherein the reader is faced with an account of the impact of human rights on trade law and the contribution of human rights to the construction of optimally functioning economic markets (pp. 44-48).
With regards to human rights, Harrison tries to maintain two “balls in the air”: the “ball” of legal positivism, as a token of those human rights that are embedded in international treaties and covenants (p.17), and the ball of cultural relativism, as a signifier of the local perceptions of human rights (p.18). Also, the author claims to have a holistic conception[iv]
of human rights, “which places human beings in the center of the moral system, and human rights as accruing to each human being by the very nature of their human personhood”[v]
(p.20). This proclaimed holistic approach seems to be out of sync with the author´s decision to practically confine his inquiry only to those rights that are codified in international law instruments, since these are the least contestable. In reality, Harrison focuses on the following types of rights: i) labor rights, especially in the context of trade restrictions imposed on the part of one country in order to counteract violations of labor rights at the stage of production in another state (Chapters 5 and 6); and ii) the right to health and access to medicines and their relationship with the TRIPS and the Doha Declaration (Chapter 8 and 9).
Harrison explains the reasons why he selects to examine WTO and Human Rights as a dyad: “a regulated system of world trade which aims at the reduction of national barriers to trade between countries can be beneficial to the promotion and protection of human rights as long as it is also constructed in such a way that the unacceptable negative social consequences of regulation and liberalization can be detected and acted upon” (p.38). With the enmeshment between methodology and object of examination in the background,Harrison clarifies that, in his view, the trade regime does not have the inherent potential to protect human rights. He suggests, though, that in the event that trade rules get paired up with human rights principles, the economic welfare of market participants will increase. This proposition pushes Harrison´s analysis in a direction opposite from the one taken by all these commentators who profess that free trade can only increase the aggregate welfare of a state but the distribution of this wealth is a matter to be decided upon domestically.
After laying out his methodology, Harrison proceeds with the main part of his scholarship. He categorizes human rights measures into three broad groups: i) first, conditionality-based trade-related measures defined as measures taken by one WTO Member State in order to promote and protect human rights of persons in another Member State, usually in the form of either trade restrictions of trade incentives (Chapters 5 and 6); ii) second, compliance-based trade related measures, meaning all the trade-related measures a WTO Member State takes in order to protect and promote human rights of persons in their own country, such as, for instance, trade restrictions in order to protect the human rights of domestic workers from unfair competition, lower salaries etc. (Chapters 8 and 9); and iii) third, cooperation-based trade-related measures, comprising trade measures adopted by a WTO Member State in collaboration with another WTO Member State for the protection and promotion of human rights in that other Member State such as, for example, the various types of international assistance towards developing countries in accordance with the right to development (Chapters 8 and 9).
Further on, Harrison illustrates the intricacies present in each of the above mentioned clusters of measures, laying particular emphasis on the conditionality-based trade-related measures. The latter are, in practice, the most controversial ones, since they bring into question fundamental notions of international law, such as state-sovereignty, competence of international organizations and resulting conflicts, erga omnes obligations and finally the right to countermeasures. In Harrison´s view, the problematic character of these measures is further compounded by the fact that their consequences spill onto the civilian population of the targeted state. With respect to the remaining two clusters of trade-related measures, Harrison seeks to balance out states´ obligations to protect and promote human rights of their own population with their obligation for international cooperation and assistance[vi]
with the commitments the same states have undertaken under the WTO.
Harrison´s analysis boils down to the frictions that inevitably arise between the two regimes, frictions with deep ideological and normative roots. One of the solutions traditionally recommended is that of recourse to good faith interpretation of WTO norms in accordance with human rights principles. Harrison embraces the interpretative method of avoiding and resolving conflict but he tacitly acknowledges all the practical difficulties that lurk on the way. He frequently refers to the Kimberley Waiver[vii]
as a good example of Member States´ determination to secure a “proper disapplication” of the GATT disciplines for reasons of “legal certainty,” rather than attempting any interpretative maneuvers to justify deviations from fundamental principles of the GATT.
In the third part of his book, Harrison proposes strategies for the protection and promotion of human rights in the trade law context. His most audacious claim is with regards to mainstreaming human rights within the Dispute Settlement System. Harrison proposes an infusion of human rights considerations through article XX(a) GATT in conjunction with article 31.3(c) of the Vienna Convention on the Law of Treaties. He aligns himself with Howse by suggesting that the “public morals” exception is, by nature, broad and versatile enough “to include concern for human personhood, dignity, and capacity reflected in fundamental rights.”[viii]
Harrison draws particularly from the practice of the European Court of Justice, as well as from the ICCPR, and the ECHR approach towards the notion of “public morals.” He concludes that in all three cases, the interpretation of public morals has been extended, first, to include human rights and, second, to allow deference[ix]
to domestic constituents. In other words, the author invites the WTO to be much more deferential in its attitudes to states taking measures to protect and promote human rights of their own populations and states cooperating to achieve human rights objectives (p.212).
Ancillary to the direct insertion of human rights into the WTO system, Harrison maps out some secondary and rather vague measures for the proper consideration of human rights. He welcomes the introduction of human rights expertise and evidence in the processes before panels and the Appellate Body (p.220). Additionally, he encourages the development of indicators that could be utilized to monitor consequences of states´ international trade law commitments or to clarify the impact of the WTO Agreements on the protection and promotion of human rights, and he applauds the engagement in assessments that identify social, economic, and environmental impacts on all countries (pp.228-229).
In this book Harrison delivers a thorough discussion of an undeniable truth: trade policies and human rights are co-centric circles and therefore should no longer be reviewed in isolation from one another. Harrison engages in an interesting systematization of all the trade-related measures thereby substantiating that human rights-friendly measures are beneficial in a dual way: they bolster both trade and human rights. However, where Harrison´s thesis falls short is with regards to the practicalities of human rights enforcement not in general, but within the WTO context. Various monitoring devices or a reading of the WTO Agreements in accordance with the human rights principles are positive steps, infant steps nevertheless. Harrison steers away from perhaps the most acute problem and that is the procedural and normative inadequacies of the WTO as a regime to consistently and sufficiently consider human rights.
G. Marceau, ´WTO Dispute Settlement System and Human Rights´, 13 European Journal of International Law, 2002 (at 3).
In page 26 of the book the author argues for a conception of human rights that recognizes the equal importance of protecting and promoting economic, social and cultural rights alongside civil and political.
R.Howse,´Back to Court after Shrimp/Turtle? Almost not quite yet: India´s short lived challenge to labour and environmental exceptions in the European Union´s Generalized System of Preferences´, 18 American University International Law Review, 2003 (at 1368).
“Margin of appreciation” in the parlance of the European Court of Human Rights.