6th WTO Ministerial Conference in Hong Kong 13-18 December 2005

WTO Members Must Abide by their Human Rights Obligations For Human Rights Impact Assessments of Trade Agreements

Between 13 and 18 December 2005, WTO Member States will gather in Hong Kong to advance substantially on the , to be concluded in 2006.

States have reaffirmed the central importance of the development dimension in every aspect of the Doha Work Program. EU Trade Commissioner Peter Mandelson declared on 30 November 2005 that “The Doha Round is different from all previous trade rounds because it is focused on ensuring that the world’s poorest countries benefit from the global trading system. Any final outcome that does not reflect their needs will be unacceptable (...).”1

The FIDH welcomes these declarations about the final objective of trade, and recalls that the preambule of the Marrakech agreement establishing the WTO provides that “relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment.”

The FIDH recalls that the right to development “is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”2 Development cannot be separated from enjoyment of human rights and as stated by the Final Declaration and Programme of Action adopted by 171 States at the 1993 Vienna Conference on Human Rights “Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.”

However, though trade and respect for human rights are not necessarily inconsistent, the current trade regime has neglected its human rights dimensions and its human rights impact. Trade rules have affected enjoyment of human rights in many aspects under recent years. WTO members have and are still nego-tiating agreements that do compromise their own and others’ States capacity to respect, protect and fulfil human rights. The FIDH has been denouncing for the past years the schizophrenia of States binding themselves with one hand and untying themselves with the other. Time has come to overcome this contradiction.

The FIDH would like to recall member States of their obligations under international Human Rights Law while negotiating trade agreements.

Almost all WTO Member States are parties to international human rights conventions.3 They are all under the legal obligation to respect, protect and put into practice fundamental rights and freedoms.

1. Peter Mandelson, EU Trade Commissioner, Remarks to G90 Ministerial - Doha and development, G90 Ministerial Meeting, ACP House, Brussels, 30 November 2005. 2. Declaration on the Right to Development, adopted by General Assembly resolution 41/128 of 4 December 1986. 3. See annex 1 on ratification of ICCPR and ICESCR by WTO Member States.

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The primacy of Human Rights in International Law

Just as States are bound by negotiated bilateral and multilateral trade agreements and WTO legal regime, they are obliged by International Human Rights Law to fulfil concrete commitments. Legal arguments support the primacy of International Human Rights Law over all other legal norms. The primacy of international human rights law stems from the United Nations Charter alongside the Universal Declaration of Human Rights.

- The UN Charter

Article 1§3 of the UN Charter sets human rights as a founding stone, which must be abided by, as the privileged means of reaching the United Nations fundamental goals.

Article 55 (c) of the Charter provides that the United Nations will encourage: “Universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.” Article 56 defines a concrete obligation to cooperate to promote universal and effective respect for human rights: “all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”

Article 103 of the Charter confirms the pre-eminence of this obligation: “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

- The Universal Declaration on Human Rights

The 1948 Universal Declaration on Human Rights (UDHR) gives interpretation of the rights outlined by the UN Charter. The principle of pre-eminence concerns economic, cultural and social rights (articles 21 to 27 of UDHR) as well as civil and political rights.

The standing of the UDHR in the international legal framework is a special one---- it is considered as a principle of international customary law4 if not a peremptory norm (jus cogens) of international law. The constant references to the high status of the UDHR in multilateral discussions within the UN or other fora, the fact that a number of international treaties mention it as a fundamental source and that it features in the legislative and judicial proceedings of a good many countries: all contributes to show that the UDHR has become a part of international customary law. The Preambule to the Vienna Convention further notes the special status of the in international law, as does the Final Declaration and Programme of Action of the 1993 Vienna Conference on Human Rights which reaffirmed “that the promotion and protection of human rights is a matter of priority for the international community.”

In the last paragraph of its preamble, the UDHR refers to itself as “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society (...) shall strive to secure their universal and effective recognition and observance.”

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4. John Humphrey, The Universal Declaration of Human Rights, its History Impact and Judicial Character, in Ramcharan (Ed), Human Rights: thirty years after the Universal Declaration (1979).

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The WTO Member States obligations in the field of Human Rights

All human rights treaties, as well as ILO conventions, are relevant to discussions on trade. While negotiating trade agreements, States have to pay particular attention to general human rights principles and to economic, social and cultural rights (ESC rights) which are particularly affected by trade policies.

1) General principles

The principle of non-discrimination

Non-discrimination together with equality before the law constitute a basic and general principle relating to the protection of human rights. This principle is enshrined in the Universal declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, as well as the Convention on the Elimination of all forms of Racial Discrimination (CERD) and the Convention on the Elimination of of All Forms of Discrimination against women (CEDAW).

While negotiating trade agreements, States must pay attention to their potential impact on vulnerable population. We emphasize the importance of gauging the intentions, but also the results, of certain policies: for example, if the effect of a given policy is to disproportionately impoverish women, the indigenous, or other groups, what we have is plain discrimination, even if the policy in question did not specifically intend to discriminate against them.

The Committee on Economic, Social and Cultural Rights has noted that poverty is closely linked to discrimination: “sometimes poverty arises when people have no access to existing resources because of who they are, what they believe or where they live. Discrimination may cause poverty, just as poverty may cause discrimination.”5

The principle of participation in decision making

The international human rights normative framework includes the right of those affected by key decisions to participate in the relevant decision-making processes. The right to participate is reflected in numerous international instruments, including article 21 of the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Declaration on the Right to Development.

Thus, States negotiating trade agreements at the multilateral or bilateral level should make sure that they are consulting with those affected by their decisions. If transparency has improved at the WTO these last years, decisions are still mainly being taken behind closed doors in mini-ministerial meetings, or country group meetings. Moreover, the right to participation at the national level needs to be improved.

Further, the offer and request approach in certain negotiations at the WTO does not always enable States to be fully aware of the impact of the agreements they will be bound to respect.

2) Obligations derived from the International Covenant on Economic, Social and Cultural Rights

International obligations

In the context of trade, States have to pay particular attention to their “international obligations.” Article 2.1 of the International Covenant on Economic Social and Cultural Rights (ICESCR) provides that each State party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization” of ESC rights.

5. Poverty and the International Covenant on Economic, Social and Cultural Rights: 10/05/2001. E/C.12/2001/10.

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International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of ESC rights in other countries.6 Thus there is a negative obligation, not to create----de facto----negotiating conditions that undermine the capacity of other States to fulfil their human rights obligations. With regard to the conclusion and implementation of trade agreements, States should take steps to ensure that these instruments do not adversely impact upon human rights.7

Further, “international cooperation” provides that developed States also have a positive obligation to assist developing countries. This obligation has a particular meaning within the WTO where there is still little technical assistance to developing countries.

Economic, social and cultural rights

Certain substantive rights protected by the International Covenant on Economic, Social and Cultural Rights are particularly relevant to discussions on trade. Indeed, negotiators on Agriculture should be particularly attentive to the right to food; Trade in essential services should not overlook the right to water, the right to education, the right to health; Intellectual Property protection rules should take into account the right to health as well as cultural rights and the rights of indigenous people; Non-Agricultural Market Access negotiations should consider impact on workers’ rights.

Immediate obligations

While the Covenant provides for progressive realization of ESC rights and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations such as the guarantee that the right will be exercised without discrimination of any kind and the obligation to take concrete steps towards the full realization of ESC rights. Retrogressive measures are prohibited under the Covenant.

Minimum core content of ESC rights

States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. The FIDH would like to recall some core obligations----which are non derogable---- regarding some of the most fundamental rights, affected by trade policies.

The right to food

It is a fact that the WTO is inextricably linked to the ability of States to ensure the right to food. Indeed millions of people depend on agricultural production for their livelihoods.

The right to adequate food is considered as part of customary law. The right to be free form hunger is a fundamental rights under the ICESCR. The right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights.

The core content of the right to adequate food implies: the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.8

Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hungers.

6. Committee on Economic, Social and Cultural Rights, General Comment No. 15, the right to water, art. 11 and 12 (ONU E/C.12/2002/11, 20 january 2003), para. 35. 7. See Committee on Economic, Social and Cultural Rights, General Comment No. 13, The right to education (doc. ONU E/C.12/1999/10), para. 56; Committee on Economic, Social and Cultural Rights, General Comment No. 14 (Article 12), The right to the highest attainable standard of health (ONU E/C.12/2000/4) para. 39; Committee on Economic, Social and Cultural Rights, General Comment No. 15, The right to water, Art. 11 and 12 (ONU E/C.12/2002/11, 20 janvier 2003), para. 36. 8. Committee on Economic, Social and Cultural Rights, The right to adequate food (Art. 11), General Comment No. 12, May, 1999, UN Doc E/C.12/1999/5.

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The right to water

Liberalization of water supplies under the General Agreement of Trade in Services is affecting the human right to water. The human right to water9 entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.

Core obligations of States with regard to the right to water include: to ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease; to ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups; to ensure physical access to water facilities or services that provide sufficient, safe and regular water (...).

The right to health

The effects of TRIPS (Trade-related aspects of Intellectual Property) on the right to health, in particular on the access to medicines, have been widely documented. The right to health is also affected by the liberalization of water supplies, sanitation services and health care services under the GATS.

The right to the highest attainable standard of physical and mental health10 is a fundamental human right indispensable for the exercise of other human rights. Minimum core obligations under the right to health include among others (a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups; (b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone; (c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; (d) To provide essential drugs, as defined under the WHO Action Programme on Essential Drugs; (e) To ensure equitable distribution of all health facilities, goods and services.

The right to education

The right to education may be affected by liberalization of education services under the GATS. Minium core obligations regarding the right to education imply: to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis; to provide primary education to all, to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education (...).

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9. Committee on Economic, Social and Cultural Rights, The right to water, General Comment No. 15, 26 November 2002, E/C.12/2002/11. 10. Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, 11/08/2000, E/C.12/2000/4.

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Recommendations: Trade rules must be consistent with human rights obligations

1) States should use WTO general exceptions to protect human rights

WTO agreements never refer to the notion of human rights as such. Yet, the preamble of the Marrakech Agreement establishing the WTO recognised trade as a means towards “raising standards of living.” Moreover, certain mechanisms taking into account non-trade concerns within the WTO may be used by member States to preserve their ability to respect their human rights obligations.11

Article XX of the 1994 GATT, lays out a number of specific instance in which WTO members may be excepted from GATT rules. These include protection of public morals (XX.a), protection of human or animal life or health (XX.b). Similarly, other WTO agreements (Agriculture, GATS...) enable countries to take into account “non-trade concerns.” The Declaration on TRIPS agreement and adopted in Doha in 2001 affirms that “the TRIPS Agreement does not ans shouldnot prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health, and, in particular, to promote access to medicines for all.”

- States should make use of general exceptions under WTO agreements to protect human rights when the implementation of trade agreements threatens human rights.

- The Panels and the Appelate Body set up under the WTO Dispute Settlement Understanding should be receptive to human rights arguments in the context of dispute settlement, including through the possibility for human rights organizations to submit amicus curiae briefs.

- Human rights concerns should be included in the reports of the WTO Trade Policy Review Mechanism.

2) Independent and participatory human rights impact assessments should be conducted

In order to preserve their capacity to respect their human rights obligations, States should commit to independent and participatory human rights impact assessments12 being conducted before (ex ante) concluding new agreements or revisions of existing trade agreements and after (ex post) such agreements have entered into force.

Human rights impact assessments should look at the outcomes of trade policies on the enjoyment of human rights, and also at the process through which such trade agreements have been agreed upon. Indeed, as underlined above, the right to information and the right to participate in decision-making are fundamental human rights. Human rights impact assessments should also look at impact in particular on ESC rights guaranteed by the International Covenant on Economic, Social and Cultural Rights.

Such impact assessments should benefit from the input and experience of international and regional human rights mechanisms. Such assessments should be conducted by independent experts, in transparency and in consultation with all relevant actors, including civil society representatives.

11. For an in-depth analysis on general exception clauses and human rights, see Human Rights and World Trade Agreements, Using general exception clauses to protect human rights, Office of the High Commissioner for Human Rights, 2005. 12. See S. Walker, Human Rights Impact Assessments of Trade-Related Policies, in Sustainable development and trade, Center for International Sustainable Development Law, 2005.

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- WTO member States should commit to participatory human rights impact assessments being conducted before concluding new trade agreements or revisions of existing trade agreements, as well as in the course of implementing existing agreements.

- International and regional human rights mechanisms should provide guidance for conducting such assessments.

- States should establish effective mechanisms within government to enhance policy coherence between human rights and trade. Trade ministries and trade representatives should receive human rights information and assessments from both governmental and non-governmental sources, in order to formulate and advocate for coherent policy decisions in international economic forums.

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Ratification of International Human Rights Conventions by WTO Member States

WTO Member States Ratification Ratification WTO Member States Ratification Ratification of ICESCR of ICCPR of ICESCR of ICCPR

Albania + + Denmark + + + + + + Antigua and Barbuda Dominica + + Argentina + + Dominican Republic + + Armenia + + Ecuador + + Australia + + + + Austria + + El Salvador + + Bahrain, Kingdom of Estonia + + + + European Communities Barbados + + (see member states) Belgium + + Belize + Finland + + + + Former Yugoslav Republic Bolivia + + of Macedonia + + + France + + Brazil + + + + Brunei Darussalam + + Bulgaria + + Georgia + + + + Germany + + + + + + + + Greece + + + + Grenada + + Canada + + Guatemala + + + + + + + + Guinea Bissau + No Chile + + + + China + + + Colombia + + Honduras + + Congo + + Hong Kong, China Costa Rica + + Hungary + + Côte d’Ivoire + + Iceland + + Croatia + + India + + Indonesia Cyprus + + Ireland + + Czech Republic + + Israel + + Democratic + + Italy + +

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Ratification of International Human Rights Conventions by WTO Member States

WTO Member States Ratification Ratification WTO Member States Ratification Ratification of ICESCR of ICCPR of ICESCR of ICCPR

Jamaica + + Japan + + Paraguay + + Jordan + + Peru + + + + Philippines + + Korea, Republic of + + Poland + + Kuwait + + Portugal + + Kyrgyz Republic + + Qatar Latvia + + Romania + + + + + + Liechtenstein + + Saint Kitts and Nevis Lithuania + + Saint Lucia Luxembourg + + Saint Vincent & the Grenadines + Macao, China + + + + + + + + Singapore Malaysia Slovak Republic + + Slovenia + + + + + Malta + + + + + Spain + + + + Sri Lanka + + Mexico + + Suriname + + Moldova + + Swaziland + + Mongolia + + Sweden + + + + Switzerland + + + Chinese Taipei + + + + Thailand + + + + + + Netherlands - For the Kingdom Trinidad and Tobago + + in Europe + + and for the Netherlands Antilles + + Turkey + + New Zealand + + + + Nicaragua + + United Arab Emirates + + United Kingdom + + + + of America + Norway + + Uruguay + + Oman Venezuela (Bolivarian Republic of) + + Pakistan + + Panama + + + +

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