ࡱ> GIFy !/bjbj 4B{{!'00004d0}"ooo!!!!!!!$)$&L""ooooo""7"o !o!h4!Oyy"` !M"0}"p ''4'' 4!''4!ooooooo""""ooo}"oooo''ooooooooo : Dr. James Harrison, Associate Professor and Co-Director of the Centre for Human Rights in Practice, University of Warwick Beyond Fragmentation and Unity: Reconceptualising human rights as useful tools for solving justice issues in the trade arena I want to tackle three issues here today. 1. Outline the problems with much of the current thinking on trade and human rights. 2. Suggest how using human rights as analytical tools for solving fundamental justice issues in the trade arena might improve current practice. 3. Outline the possibilities for the Trade Policy Review Mechanism and ϲʹ Dispute Settlement processes of incorporating this approach into their current practices. 1. The Current Problems Both human rights actors and trade actors have good reasons to be concerned about the interaction between trade law and human rights law. Human rights actors view international trade rules as important because they are subject to binding and relatively strong forms of dispute settlement and because of their ability to potentially impact on the protection and promotion of a wide range of human rights, many of which have been discussed at this Forum. For instance: To what extent does patent protection of medicines under the TRIPS Agreement (and TRIPS-plus obligations in bilateral and regional trade agreements) have implications for the right to health and in particular the provision of essential medicines? To what extent do trade rules in agriculture appropriately take into account the human rights issues faced by small scale farmers, particularly in poor developing countries? And, to take a topical example, to what extent do technical trade rules allow governments to tackle health issues such as taking action against smoking in a way that protects the right to health of their populations? Trade actors, on the other hand, I would argue, have traditionally been concerned about human rights obligations because of their ability to undermine the legitimacy of trade rules. So for instance, if it can be demonstrated that an obligation of the TRIPS Agreement, TBT Agreement or Agreement on Agriculture violates relevant human rights rules that would be a big blow to the legitimacy of trade rules. This is therefore something to be guarded against. Much of the resulting debate about the interaction between trade rules and human rights rules has been primarily a lawyers debate. It is therefore largely about clashes of legal norms and is conducted at a very high level of abstraction. At its crudest, it involves those raising human rights issues arguing that human rights norms and standards are superior obligations - You must kneel at the feet of our legal obligations because ours are superior to yours! Trade lawyers respond that, to the extent that human rights standards do contain any clear obligations in the trade law context, they are either irrelevant or are completely compatible with trade law norms. This is a crude and un-nuanced depiction of the debate, but at its core, I think, it is largely a true depiction. As you may be aware, no parties have directly invoked human rights issues in a ϲʹ dispute. But there is an international investment law dispute where human rights issues have been raised by Argentina in relation to its treatment of foreign nationals providing water services after the economic crisis and the devaluation of the peso, Suez and Vivendi v Argentina (2010). And I want to quote directly from that case as it crystallises for me perfectly the limitations of much of the current human rights and trade discourse which I have outlined above: Argentina has suggested that its human rights obligations to assure its population the right to water somehow trumps its obligations under the Bilateral Investment Treaties and the existence of the human right to water also implicitly gives Argentina the authority to take actions in disregard of its BIT obligations. The Tribunal does not find a basis for such a conclusion either in the BITs or international law. Argentina is subject to both international obligations, i.e. human rights and treaty obligations, and must respect both of them. Under the circumstances of this case, Argentinas human rights obligations and its investment treaty obligations are not inconsistent, contradictory, or mutually exclusive.Argentina could have respected both types of obligations. In this small passage, I think we find all the problems of the wider trade/investment and human rights debate. This quote occurs at the end of the only section which deals with human rights in the judgment. Argentina claims the supremacy of human rights norms. The tribunal rejects this and asserts the compatibility of the two sets of legal norms. But no attempt is made anywhere to explore what the precise ramifications of the right to water might be. There is no attempt to use human rights norms and standards as a problem-solving tool to better understand what form of government response might or might not be justified by its right to water obligations. For instance does the right to water justify the government refusing to allow the company to charge higher prices for water, and if so, to which people, and in what circumstances. 2. Using Human Rights as Analytical Tools Speaking as a lawyer myself, I have seen how discussions that are controlled primarily by lawyers become dominated by concerns about supremacy and clashes of norms. To move on from this, we need a debate about how human rights norms can become analytical tools that can be utilised to problem-solve in the trade arena on some of its most contentious issues. Questions should be asked from a human rights perspective like: Are some safeguards on agricultural products justified in terms of their ability to protect the right to food of vulnerable populations, while other safeguards should be viewed merely as disguised protectionism? Are the implementation of some TRIPS and TRIPS-plus obligations to be viewed as breaching the right to health because they make essential medicines unaffordable and unavailable for sections of a countrys population? These type of questions can only be answered by serious analytical studies of the impact of trade law rules in individual countries. So far work in this area has largely been pioneered by NGOs and individuals. For instance we have studies of: The impact of TRIPS-plus provisions in the Central American Free Trade Agreement on the right to health and access to essential medicines in Costa Rica. The impact of liberalisation commitments on the right to food of farming communities in Ghana, Honduras, Indonesia and a range of other countries. Most recently, the Free Trade Agreement between Colombia and Canada now includes a separate side-agreement that calls for Canada and Colombia to produce annual reports on the impacts of their FTA on human rights in both countries. This is particularly important because it represents the first attempt by governments to undertake this kind of analysis. Lessons need to be learned from these kind of pioneering studies. This type of analysis could be undertaken on a much more widespread basis and could provide an important empirical basis both for negotiations of trade agreements and for a nuanced and sophisticated use of human rights norms in dispute settlement. 3. Incorporation of human rights in the Trade Policy Review Mechanism and ϲʹ Dispute Settlement processes The Trade Policy Review Mechanism would be one obvious place for the kind of human rights analysis described above to be undertaken in the trade law context. The reports produced under the TPRM seem to be viewed by many as lacking in analysis and not generating information that is specific to the needs of many developing countries. Using human rights norms as the basis for analysing issues such as the impact of rules on agriculture, intellectual property, trade in essential services and a range of other issues could be one mechanism for improving upon this practice. Human rights norms and standards should mandate a focus on the impact of trade rules on poor, vulnerable and marginalised groups that is often missing from standard forms of review and impact assessment. The ϲʹϒs dispute settlement process could also adopt this kind of analytical approach. But the opportunities for doing so are somewhat narrowed by a number of factors: First, States have to raise the human rights issues, they never have done, and there are significant reasons why they may not want to in the future (a topic for further discussion perhaps!). Second, dispute settlement is a tool which is not greatly used by smaller and poorer developing countries where some of the gravest human rights issues may occur. Finally, the EC Biotech Decision, appears to me to suggest only a very narrow entry point for international human rights norms into dispute settlement. Basically as a supplementary means of interpretation for individual words or phrases in ϲʹ Agreements. The approach of the dispute settlement bodies to this issue is in serious need of clarification in future cases. Having said all of this, were human rights arguments to be raised by States in dispute settlement proceedings, ϲʹ dispute settlement bodies could utilise human rights norms and standards adopting the analytical approach advocated above. But serious consideration would have to be given to how they would ensure that they had the requisite human rights expertise to make judgments on human rights issues. This is an area where investment law tribunals have already demonstrated serious shortcomings- primarily in their use of amicus briefs again an issue which I can talk about more in our discussions. 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