Imbedded in WTO: Human Rights for Some

Does the WTO promote human rights? No, it does not. At least that would be the unqualified answer of the WTO and trade experts generally. But that answer should be qualified, and one trade expert, Susan Ariel Aaronson, nails down a partial qualification in a new study.

“Human rights are seeping into WTO deliberations and activities,” says Aaronson, associate professor in the business and international affairs schools at George Washington University and co-author of "Trade Imbalance: the Struggle to Weigh Human Rights in Trade Policymaking" (Cambridge 2008).

Aaronson makes clear that the WTO has no mandate on human rights and that the various trade and investment agreements under its umbrella make no explicit mention of human rights as such. Yet “a wide range of human rights concerns” arise in day-to-day WTO operations, and she documents examples in the following categories:

-- “Members use trade waivers and exceptions to promote human rights at home or abroad.”
-- “They occasionally bring up human rights during accessions and trade policy reviews.”
-- “They have amended the TRIPS agreement to make it clear that nations can use the public health exception to TRIPS in times of public health emergencies.”
-- “Human rights concerns have even entered into trade negotiations (e.g., food security).”

John Ruggie, the UN secretary general’s special representative on business and human rights, who is preparing a report on business and human rights for the UN Human Rights Council, commissioned Aaronson’s study. Her overall conclusion is that although nation-states are limited by WTO agreements in their ability to advance human rights, they still have a good deal of leeway to do so at home and abroad.

Outside the paramaters of this study is another fascinating dimension to the global network of trade and investment agreements. Here, too, there is no explicit mention of human rights, but that doesn’t mean they are non-existent.

Actually, human rights linkages are evident in a surprising number of WTO trade agreements. That’s especially so for two major WTO concerns: the protection of intellectual property rights and the protection of the rights of foreign investors. Check the Universal Declaration of Human Rights. Its article 27 proclaims the right to the protection of various types of intellectual property; and article 17, “the right to own property alone as well as in association with others” and the right not to be arbitrarily deprived of property.

These particular human rights are implemented at the WTO (or multilateral) level by two key global agreements: more than amply by the “Trade-Related Aspects of Intellectual Property Rights” (TRIPS) agreement and, less satisfactorily (from the typical investor’s perspective) by the “Trade-Related Investment Measures (TRIMs)” agreement.”

Country-to-country (bilateral) agreements carry this implementation even further, with TRIPs and TRIMs protections strengthened beyond WTO requirements. Take, for example, the administration’s trade agreement with Colombia, which Congress has just shelved. The Colombia FTA devotes

-- 33 pages to protecting intellectual property rights, 11 of them on enforcement alone
-- 35 pages to protecting foreign investment, very broadly defined, 13 of them on enforcement through dispute settlement procedures in which only the investor can bring a claim.

Again, there is no mention that the rights involved are human rights. That omission holds true for a bundle of other WTO-protected rights in this FTA, as well as across-the-board in all multilateral and bilateral trade agreements.

This is not a semantic quibble. It is an issue that leads to a fundamental question: is the present global trade regime serving the common good or not?

In response to demands that the WTO start protecting the human rights of workers, the usual answer is that the WTO does not do human rights. The truth is otherwise. The WTO does indeed do some human rights, and that limited mission is imbedded in the policies and rules of the whole trade and investment regime.

Open acknowledgment of this fact – by putting an end to mislabeling – would turn the spotlight on who now benefits from the human rights provisions that the WTO promulgates globally, but under other names. Such transparency would reveal the way that selected human rights are woven into the very fabric of the WTO. It would expose the inequity, the lack of inclusiveness, of a WTO system that ignores the human rights of stakeholders indispensable to the global economy – the world’s working men and women.

My congratulations to Professor Aaronson for her provocative study. It should be complemented by an analysis on how extensively the WTO and its agreements support the human rights of global business without acknowledging the human rights principles of the enterprise.


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