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Just Trade

Just Trade: A New Covenant Linking Trade and Human Rights

Berta Esperanza Hernández-Truyol
Stephen J. Powell
Copyright Date: 2009
Published by: NYU Press
Pages: 416
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  • Book Info
    Just Trade
    Book Description:

    Documents Annex: modern trade law and human rights law constitute two of the most active spheres in international law, follow similar intellectual trajectories, and often feature the same key actors and arenas, neither field has actively engaged with the other. They co-exist in relative isolation at best, peppered by occasional hostile debates. It has come to be a given that pro-trade laws are not good for human rights, and legislation that protects human rights hampers vibrant international trade.In a bold departure from this canon, Just Trade makes a case for reaching a middle-ground between these two fields, acknowledging their co-existence and the significant points at which they overlap. Using examples from many of the 35 nations of the Western Hemisphere, Berta Esperanza Hernndez-Truyol and Stephen J. Powell combine their expertise to examine human rights policies involving conscripted child labor, sustainable development, promotion of health, equality of women, human trafficking, indigenous peoples, poverty, citizenship, and economic sanctions, never overlooking the very real human rights problems that arise from international trade. However, instead of viewing the two kinds of law as polar and sometimes hostile opposites, the authors make powerful suggestions for how these intersections may be navigated to promote an international marketplace that embraces both liberal trade and liberal protection of human rights.

    eISBN: 978-0-8147-9086-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-xii)
  3. Acknowledgments
    (pp. xiii-xiv)
  4. Acronyms
    (pp. xv-xviii)
  5. Getting Started: A General Introduction
    (pp. 1-12)

    Just as Homer identified trade with the very concept of civilization, we seek by our analysis to identify just trade: specific paths that governments must follow to use trade’s enormous power for the advancement of human rights. The realities and the consequences of leaving undisturbed the profound disconnect between human rights law and international trade law are heartbreaking. For example, India’s historic opening to freer international trade in the 1980s brought huge gains to a middle class that in essence did not exist in the 1960s and now numbers more than three hundred million¹ newly prosperous Indians. Against this inarguably...

  6. 1 Global Concepts: International Law Primer
    (pp. 13-25)

    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.

    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...

  7. 2 Pillars and Escape Hatches: Basic Concepts of International Trade Law in the Americas
    (pp. 26-48)

    This chapter discusses the fundamental premises and economic underpinnings of the global trading system that are necessary for the reader to appreciate the varied interactions of trade and human rights law.¹

    We described the General Introduction how trade law and human rights law developed along parallel tracks after the Second World War. The same horrors of war that inspired the founding of the United Nations and the development of modern human rights law, discussed in chapter 3, also led finance ministers of the world’s leading trading nations to gather in Bretton Woods, New Hampshire, in 1947 to establish global cooperative...

  8. 3 Global Laws, Local Lives: Basic Concepts and Legal Regimes of Human Rights Law in the Americas
    (pp. 49-61)

    International human rights are essential predicates to life for human beings.¹ They are rooted in moral, social, religious, legal, and political concerns for respect and dignity of individuals.² Such rights are vital to personhood, to a human being’s identity.³ The human rights idea is a relatively recent one. There are strong disagreements regarding whether there is a single, universally applicable concept of human rights. While some insist on such universality, others urge a culturally relative view.⁴

    The evolution of international rights of persons dates to the 19th and early 20th centuries. At that time, particularly with shifting national borders, states...

  9. 4 Splendid Isolation’s Progeny: The Intersections of Trade and Human Rights
    (pp. 62-74)

    Having presented in the opening segments the foundational principles of international law-making and the basic concepts of both trade and human rights norms and structures, this chapter turns to an overview of the relationship between human rights and international trade. The chapter begins by exploring the philosophical differences in the approach of the two disciplines and their structural placement in public international law in order that the reader may gain a better understanding of their commonalities. In searching for resolution of conflict, the chapter next analyzes the hierarchy of these fields under international legal principles. To prepare the reader for...

  10. 5 Who Belongs, Who Rules: Citizenship—Voice and Participation in the Global Marketplace
    (pp. 75-85)

    Globalization is changing the nature of citizenship. What used to be considered a legal status now becomes more of a social bond. What used to be a particular relationship of an individual to the state may now be a relationship of an individual to multiple states. A status that once defined national belonging may now signify marginalization. Moreover, the power that individuals derived from citizenship to define the political, social, and cultural landscape now has been shifted to corporate entities whose loyalties lie in economic well-being as defined by the bottom line. This chapter will explore these new meanings, and...

  11. 6 Ecosystem Degradation and Economic Growth: Trade’s Unexploited Power to Improve Our Environment
    (pp. 86-113)

    Governments committed to ensuring the human right to a healthy, sustainable environment for their citizens increasingly face limitations from trade rules that dictate unconditional nondiscrimination and distinguish products based on their physical characteristics instead of whether their production or harvesting methods cause environmental damage. In this chapter, we examine trade’s inflexible commitment to outdated interpretations that, in any event, GATT’s actual provisions never demanded. We suggest approaches to the linkage between the environment and trade that promote sustainable development, including protection of nonrenewable resources as part of the common heritage of humankind, without sacrificing economic progress.

    When trade or environmental...

  12. 7 Not Just a Question of Capital: Health and Human Well-Being
    (pp. 114-135)

    International trade and other manifestations of globalization have unmatched potential to spread the benefits of the transnational interchange of goods, services, and knowledge. In fact, the link between personal wealth—a factor strongly influenced by trade—and health is indisputable: trade creates wealth and wealth produces health.¹ Concerns about international trade’s adverse effects on health, however, particularly in the poorest nations and as to food safety, environmental toxins, and access to lifesaving medicines, have fed doubts about the value of globalization.²

    Chapter 6 showed that WTO Members have used the General Exceptions of GATT’s Article XX effectively to immunize from...

  13. 8 Exploitation or Progress? Terms and Conditions of Labor
    (pp. 136-169)

    After centering the debate by inquiring into the problematic question of how to identify the labor rights that trade should use its power to advance, we examine in this chapter which labor standards qualify as fundamental human rights and the extent to which workers and labor organizations successfully use existing trade agreements to protect core labor rights. In particular, we will evaluate the potential for advocates of worker rights to use GATT Article XX’s exceptions for public morals and health and welfare. We also will examine the labor side agreement of the NAFTA and the labor chapters of the U.S.-Chile...

  14. 9 Human Bondage: Trafficking
    (pp. 170-191)

    In this chapter, we will look at a different type of trade—the trade in persons. Some of such “trade” inextricably is linked to trade regimes, bolstered by their demand for cheap labor. With the objective of convincing officials to make necessary changes, we examine the way that trade rules have heedlessly promoted a modern form of slavery.

    The modern-day prohibition against trafficking is couched in explicit international human rights documents protecting freedom and personhood. The Universal Declaration and ICCPR prohibit servitude, slavery, and the slave trade in all its forms (art. 4 and art. 8(1) and (2), respectively). The...

  15. 10 Bebel Redux: The Woman Question
    (pp. 192-205)

    In 1910, Bebel first asked “the woman question.”¹ He examined the social location and role of women with the aim of maximizing women’s participation in and contributions to society, especially in the political and economic spheres. The mere asking of the question, however, underscores the reality of the ubiquity of gender gaps. Indeed, at times women are simply invisible. As an example, in 1993, at the World Conference on Human Rights in Vienna,² women were not even on the agenda. At the conference, women’s NGOs from all locations, representing women from Asian, Arab, Northern, Southern, African, and Latin American states,...

  16. 11 First Peoples First: Indigenous Populations
    (pp. 206-230)

    Globalization has exacted massive and lopsided economic and cultural costs from indigenous populations.¹ In rewarding work that is inconsistent with the nature-sensitive ways of subsistence lifestyles, by promoting unsustainable resource use, and through diversion of governments from long-range infrastructural priorities with the promise of quick riches, international trade has despoiled and degraded indigenous cultures and robbed native populations of their ability to hand down adequate resources for survival of future generations. Because trade rules give teeth to intellectual property protections, multinational companies have expropriated to great profit traditional knowledge essential to indigenous culture. These same trade rules, however, deny communal...

  17. 12 From Excess to Despair: The Persistence of Poverty
    (pp. 231-249)

    Part of the promise of a trade system was the spread of capitalism and capital to effect an improvement in the standard of living of persons worldwide. Yet it is unclear whether indeed such an improvement in wealth has arrived. Current figures on the wage gap show increasing distances between the rich and the poor, as well as growing income and purchasing

    power disparities. While the poor of the world may starve or die from curable illnesses, the rich spend millions on cosmetics and pet food. This chapter explores whether the trade regime as it has evolved has in fact...

  18. 13 Freedom from Famine and Fear: Democracy
    (pp. 250-260)

    The emerging right to democratic governance is closely linked to economic rights. As Nobel Prize–winning economist Amartya Sen observed, “Famines have never afflicted any country that is independent, that goes to elections regularly, that has opposition parties to voice criticism, that permits newspapers to report freely and to question the wisdom of government policies without extensive censorship.”¹

    There is ongoing debate about whether trade promotes or inhibits democracy. One side cites provisions in trade agreements that allow suits by private investors that invade regulatory arenas, which are traditionally within the sole national discretion of governments—such as labor, health,...

  19. 14 Imperial Rules: Economic Sanctions
    (pp. 261-274)

    Much of our discussion in previous chapters centered on the ability of states to avoid WTO sanctions for border measures taken in support of human rights principles. Now we address the normative justification and viability of such measures beyond the context of their GATT consistency. Just as international trade laws are a subset of a state’s foreign policy, so too are economic sanctions¹—that is, actions taken by a government that directly restrict the transnational flow of goods, services, or capital. By raising the cost of commercial activities by a foreign government, or its businesses or citizens, an economic sanction...

  20. 15 Recognizing Indivisibility, Bridging Divides: Visions and Solutions for the Future of the Trade and Human Rights Relationship
    (pp. 275-298)

    As the forces of globalization continue to explode into ever more intrusive corners of our lives, the splendid isolation of the human rights and trade regimes is in fact no longer possible, even if it were desirable. The question that we have tried to answer in this volume is whether that integration will be purposeful, conspicuous, proactive, and ingenious—that is, splendid in both design and reach, or more of the ad hoc mélange of superficial and isolated duct-tape “solutions” that we have had so far to endure. Economic expansion not only is consistent with responding to human rights obligations,...

  21. Notes
    (pp. 299-366)
  22. Index
    (pp. 367-389)
  23. About the Authors
    (pp. 390-390)