Dialogueon OCCASIONAL PAPERS Globalization GENEVA N° 30 / April 2007 Robert Howse and Ruti G. Teitel Beyond the Divide The Covenant on Economic, Social and Cultural Rights and the World Trade Organization Dialogue on Globalization Dialogue on Globalization contributes to the international debate on globalization – through conferences, workshops and publications – as part of the international work of the Friedrich-Ebert-Stiftung (FES). Dialogue on Globalization is based on the premise that globalization can be shaped into a direction that promotes peace, democracy and social justice. Dialogue on Globalization addresses “movers and shakers” both in developing countries and in the industrialized parts of the world, i.e. politicians, trade unionists, government offi cials, businesspeople, and journalists as well as representatives from NGOs, international organizations, and academia. Dialogue on Globalization is co-ordinated by the head offi ce of the Friedrich-Ebert-Stiftung in Berlin and by the FES offi ces in New York and Geneva. The programme intensively draws on the international network of the Friedrich-Ebert-Stiftung – a German non-profi t institution committed to the principles of social democracy – with offi ces, programmes and partners in more than 100 countries. This Occasional Paper is published by the Geneva offi ce of the Friedrich-Ebert-Stiftung. April 2007 Table of Contents: 1. Preface 3 2. Executive Summary 4 3. Introduction 5 4. Domestic Policy Space 12 4.1. The Direct Effects on Social, Economic and Cultural Rights of Reduction in Trade Barriers 13 5. The Rights to Work, Health and Food in Interaction with the WTO Regime 14 5.1. The Right to Work 14 5.1.1. Human Security, International Trade, and Worker Dislocation 14 5.1.2. Subsidies 15 5.1.3. Human Security, Trade in People, and the General Agreement on Trade in Services 18 5.2. The Right to Health 20 5.2.1. Trade in Goods 20 5.2.2. Domestically-Prohibited Products 21 5.2.3. The Right to Health, the TRIPS Agreement, and Access to Essential Medicines 22 5.3. The Right to Food 25 6. Conclusion 28 7. List of Abbreviations and Acronyms 29 ISSN 1614-0079 ISBN 978-3-89892-662-1 © Friedrich-Ebert-Stiftung. All rights reserved. The material in this publication may not be reproduced, stored or transmitted without the prior permission of the copyright holder. Short extracts may be quoted, provided the source is fully acknowledged. The views expressed in this publication are not necessarily the ones of the Friedrich-Ebert-Stiftung or of the organization for which the author works. Friedrich-Ebert-Stiftung 1. Preface Trade Policies and Human Rights issues are usually discussed in isolation. Yet, the mutual impact is not deniable, which makes it mandatory for researchers and politicians in both areas to strengthen their awareness of the existing links. Often a discussion of those links ends up in dogmatic positions. One side declares the blessing of free markets in a frame of “rising tide” theories, which see the promotion of human rights as an automatic result of economic growth. The other side sees this “rising tide” rather like a tsunami, washing away every boat that is not strong enough to withstand the colossal changes. Therefore, for some, markets are the solution for the promotion and protection of Human Rights, while others see a free market as the reason of all evil, calling for an abolition of the World Trade Organization and international free trade agree- ments without looking thoroughly into their substance. Robert Howse and Ruti Teitel deliver in this paper a discussion of specifi c features of the International Covenant on Economic, Social and Cultural Rights and the regulatory framework of the World Trade Organization. They analyze the possible negative impacts the international trade system may have on the enjoyment of economic, social and cultural rights and show ways to avoid those negative effects within the existing trade system by means of applying WTO rules. This paper resulted from a workshop, which was jointly organized by the Secre- tariat of the UN Committee on Economic, Social and Cultural Rights and the Geneva Offi ce of the Friedrich-Ebert-Stiftung. The workshop aimed at strengthening the impact of the Committee on trade policies and was exploring possibilities for the Committee, to take an active role and enclose trade issues into their revision of State’s reports on their compliance with the Covenant. It also represents a further continuation of the collaboration between the Committee on Economic, Social and Cultural Rights and FES Geneva. At FES Geneva, we attach high importance to the achievement of a bridging between the topics of human rights and trade, which both form major pillars of our work. In this respect, the authors provide important fi ndings for human rights advocates and trade politicians alike. The major strength of their paper is that it shows problems which may arise from trade agreements but at the same time points out the fl exibilities given in WTO rules which, if interpreted correctly, allow for an effective protection and active promotion of human rights. Felix Kirchmeier Geneva Offi ce Friedrich-Ebert-Stiftung OCCASIONAL PAPERS N° 30 3 Friedrich-Ebert-Stiftung 2. Executive Summary The legal, institutional and policy cultures of international human rights law and of international trade, fi nancial and investment law have developed largely in isolation from one another. At the same time, as a matter of international law, both the International Covenant on Economic, Social and Economic Rights (ICESCR) and the World Trade Organization (WTO) are, in the fi rst instance, treaty regimes. Treaty norms in the ICESCR have an equal legal status to those in the WTO. A large majority of states are signatories to both the core WTO treaties (the so-called Covered Agreements) and the ICESCR. Reconstructing globalization on the basis of a human rights consciousness, and in particular with a view to fully realizing the vision of the ICESCR is a daunting task, which would need to engage many policy disciplines and many institutions. A short to medium term strategy is needed to identify some fairly precise and specifi c interconnections between the legal concepts and doctrines in the treaty texts of both regimes. As international lawyers whose collective expertise extends across both regimes, the authors conceive the challenge as a legal question of the interaction of treaty norms. The authors focus on those aspects of economic, social and cultural rights that are most directly linked to human security, a fundamental value also acknowledged in various ways in the WTO Agreements and their interpretation. Accordingly, they examine aspects of the right to work, the right to health and the right to food and the impact of WTO rules and their interpretation. 4 DIALOGUE ON GLOBALIZATION Friedrich-Ebert-Stiftung 3. Introduction Since the end of the Cold War, two main visions have guided the evolution of international law and institutions – the vision of human rights and humanity and that of economic globalization. Both visions have offered challenges to traditional understandings of sovereignty: both have given a new signifi cance to non-state actors in the evolution and implementation of international law. Both have often given rise to demands and aspirations to global politics and/or constitutionalism as well as new relationships between local, national, regional and global levels of governance. However the legal, institutional and policy cultures of international human rights The legal, institutional law and of international trade, fi nancial and investment law have developed and policy cultures of largely in isolation from one another. international human rights law and of As a matter of international law, both the International Covenant on Economic, international trade, Social and Economic Rights (ICESCR) and the WTO are, in the fi rst instance, fi nancial and investment treaty regimes. A fundamental structural characteristic of the international legal law have developed system is that of decentralization without hierarchy.1 Treaty norms in the ICESCR largely in isolation from have an equal legal status to those in the WTO. A large majority of states are one another. signatories to both the WTO Single Undertaking (the core WTO treaties) and the ICESCR. The principle of decentralization without hierarchy, along with that of giving full effect to international obligations, implies the need to interpret and to develop these regimes in a complementary and consistent fashion to the extent possible. As the Report of the International Law Commission (ILC) on fragmenta- tion of international law notes: “In international law, there is a strong presumption against normative confl ict.”2 Since the WTO Seattle Ministerial, now almost a decade ago, there has been a con certed effort in the international human rights community, by activists, aca- demics, and the Offi ce of the High Commissioner to overcome this isolationism, attempting to understand how trade affects the realization of human rights and what implications human rights obligations have for the interpretation and nego- tiation of trade agreements.3 It is fair to say that these efforts have not been matched by a comparable openness WTO negotiations in the on the part of the international trade law and policy community: WTO negotiations Doha Round are occurring in the Doha Round are occurring without any explicit reference to human rights. without any explicit reference to human rights. 1 See generally, International Law Commission, “Fragmentation of International Law: Diffi culties Arising from the Diversifi cation and Expansion of International Law,” Report of the Study Group of the Inter national Law Commission, fi nalized by Martti Koskenniemi. 2 Ibid., paragraph 37. 3 See for example Liberalization of trade in services and human rights, Report of the High Commissioner for Human Rights (E/CN.4/Sub.2/2002/9).