3.4 Connecting international trade and development to human rights law
Beyond State-Centric Law and Legal Doctrine. New Actors and Determinants.
Key words: Social clause; WTO; human rights; development; poverty reduction
Besides domains closely related to international criminal law, international law is generally 'on the move' in many ways. Think of the assurance of international peace and security (ius ad bellum), the regulation of international and national conflicts (ius in bello) and, out of many other examples, the strengthening of the supervisory procedures in international trade law. In addition, there are some trends in general international law which transcend specific fields. The diversification of the sources of international law (for instance soft law as a contribution to and 'evidence' of the creation of customary law), the extension of the number of subjects of international law (for instance minorities and indigenous peoples and to some extent companies) and the growth of institutionalised procedures for the peaceful settlement of disputes (see the just-mentioned procedures, developed in the framework of international trade law, the WTO Panels and Appellate Body are a few examples).
Despite all these developments, one can also state that developments in international law are not taking place very consistently. The evolution in specific fields depends largely on coincidences: personal interest of major players, States willing to do a) but refusing to do b), or major crises leading to change. Against this backdrop, the central question of this part of the research program is: in what ways are conceptual as well as practical developments in the field of the protection of human rights - which in many ways can be seen as landmark developments - really influencing the development of international law in fields such as poverty alleviation and international economic law (the activities of the World Bank, the IMF, the ILO and the WTO)? The research relates to questions de lege lata and de lege ferenda, studied from a Western as well as a non-Western perspective.
Special attention will be paid to the issue of the 'social clause'. There is a growing consensus that States participating in the free trade agreements of the WTO, should not be able to take advantage (economically or otherwise) of human rights abuses like child and forced labour. Products manufactured under such conditions should not be allowed to enter international markets. This discussion is normally referred to as 'the social clause debate'. Since the inception of the WTO, in 1994/5, this debate has not, however, lead to any serious results: it has become fully politicised and it is not to be expected that the WTO Member States are prepared and able to make any progress on this issue in the near future.
Nevertheless, the issue is still extremely important, from a scientific as well as a social point of view. Therefore another path - a 'bypass' operation - will be sought in order to integrate respect for human rights, including the ILO core labour standards, into the work of the WTO. This will be done, by looking at the legal obligations of the WTO, conducting detailed research as to the links between human rights and trade standards and tabling practical solutions which make use of these findings.
Key words: Right to development; economic and social rights
Development is still on the international agenda, as both the Millennium Development Goals and the Monterrey consensus of March 2002 illustrate. States and peoples from the South have been looking for solid arguments to bolster their claims for a fairer world economic order and the transfer of financial and other resources from North to South, to make their development feasible. In the 1970s, a comprehensive claim for development was framed using the concept of a New International Economic Order. More recently, reparation for slavery and colonialism has been demanded. Since the 1980s, a human right to development has been advocated. This human right to development is, however, fraught with difficulties from a legal point of view, and highly contended politically. In order to be relevant for development, the human right to development has to be defined in an innovative way, but the more it is defined in an innovative way, the more it becomes politically contested. Moreover, claims made under the heading of a right to development are inevitably comprehensive in scope, and therefore often rather vague and undetermined.
The legitimate claims to fairer international economic relations and a transfer of resources from North to South still lack a solid legal ground. The need for such a legal foundation has become all the more crucial since the idea of contracting for development (by means of development compacts) entered into thinking on development co-operation. As the Contracting Parties (receiving and donor countries) are per definition in an unequal bargaining position, a legal framework setting the minimal obligations of the donor countries may become all the more important.
Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - which spells out the general obligation to take steps in order to achieve progressively the full realisation of the rights in the Covenant - contains a reference to international assistance and co-operation. Article 11 too, dealing with the right to an adequate standard of living, including the right to food, refers to international co-operation. The question arises whether the identification and development of third State obligations based on the above-mentioned provisions of the ICESCR - i.e. obligations incumbent on other States parties than the domestic State party - could be a more fruitful way to underpin the claims for a more equitable world order and the transfer of resources.
Unlike attempts to ground claims for global social justice in the right to development, addressing the issue in terms of international obligations under the ICESCR makes legal sense. Useful analytical tools and concepts have been developed over the last twenty years to analyse and clarify the meaning of economic, social and cultural rights, and to define the scope of obligations incumbent on the domestic State (hereafter called 'domestic obligations'). The third State obligations approach is also to be preferred because it starts from a legally binding, major international human rights treaty that was signed in 1966, that has meanwhile been ratified by 148 States, and the implementation of which is supervised by a Committee on Economic, Social and Cultural Rights (ESCR-Committee). The human right to development is at best a highly contested new human right that is only emerging and may never gain full recognition. The identification of third State obligations ensuing from the ICESCR has the additional benefit of leading to disaggregated, tangible and concrete obligations in specified circumstances. Such clearly delineated and identifiable obligations may prove to be politically more acceptable than the ones stemming from a human right to development.
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