A Human Rights Critique of the WTO: Some Preliminary Observations

A HUMAN RIGHTS CRITIQUE OF THE WTO: SOME PRELIMINARY OBSERVATIONS1 A recent United Nations (U.N.) Report by jurists J. Oloka-Onyango and Deepika Udagama entitled The Realization of Economic, Social and Cultural Rights: Globalization and its impact on the full enjoyment of human rights (the U.N. Report) concludes that the World Trade Organization (WTO) is a "veritable nightmare" from a developing countries perspective.2 This pronouncement has been dismissed by the WTO, but hailed by anti-globalization bodies.3 The criticisms contained in the U.N. Report provide a glimpse of the Southern4 distrust engendered by the inevitable expansion of the WTO trade mandate into areas such as labor, the environment, and human rights. The U.N. Report opposes the expansion of the trade mandate and, specifically, the tying of trade to human rights. Although the U.N. Report supports active participation by civil society groups at the WTO level, it remains unclear whether its opposition to the tying of trade to human rights is based solely on lack of such participation. Governments of the South, on the other hand, oppose any form of direct participation by non-governmental organizations (NGOs) and other non-state actors. They see this opposition as an inevitable extension of their continuing resistance to the tying of trade to issues of primary concern to the NGO community, such as environmental, labor, and human rights. This short essay explores some possible reasons for the opposition to the WTO expressed in the U.N. Report. The first part reviews the criticism of the WTO as the "practical manifestation of globalization in its trade and commercial aspects,"5 and the opposition of the U.N. Report to the tying of trade to human rights. It also reviews the WTO response to the U.N. Report. The second part looks at the historical opposition of the United States towards economic, social, and cultural rights. The third part contrasts the U.N. Report with the position of developing country governments on the issues of linkages and the participation of international civil society at the WTO. Finally, concluding remarks raise as future "trade" issues the possible effect of the increasing recognition of economic, social, and cultural rights on the interpretation and application of WTO obligations by member states. I. WTO AS AN INSTRUMENT OF GLOBALIZATION-FROM-ABOVE The U.N. Report was prepared pursuant to a U.N. resolution by the Sub-Commission on the Promotion and Protection of Human Rights (the Sub-Commission). It builds upon the two authors' prior work on globalization and human rights,6 and it forms part of a general mandate by Secretary General of the United Nations Kofi Annan to look at the human rights "fall-out" of economic liberalization.7 In his report to the Millennium Summit, Annan stated: [G]lobalization is the single most important factor defining the quality of human existence. Unbridled economic liberalization has the potential to wreak havoc on human rights unless checked in a timely manner. It is therefore imperative that all human rights organs of the United Nations focus heavily on the human rights `fall-out" of free market forces and adopt appropriate mechanisms for dealing with resulting obstacles to the enjoyment of human rights, especially insofar as they relate to their respective mandates.8 The U.N. Report is the outgrowth of the Sub-Commission's interest in two areas: the realization of economic, social, and cultural rights, and the "global ramifications of various non-State actors and their influence over the realization of such rights."9 The U.N. Report recognizes that the WTO, unlike its predecessor, the GATT, has a broader mandate than trade alone.10 It argues, quite correctly, that the expansion of the trade mandate under the Uruguay Round agreements made the WTO a powerful institution and, for the first time, brought within the purview of international trade "broad questions of human rights and the North/South geopolitical divide. …