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INTERNATIONAL TRADE AND WORLD HEALTH POLICY: HELPING PEOPLE REACH THEIR FULL POTENTIAL（2） |
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INTERNATIONAL TRADE AND WORLD HEALTH POLICY: HELPING PEOPLE REACH THEIR FULL POTENTIAL（2）
III. International Bill of Rights
The first half of the 20th century was riddled with inhumanity, death, and violence. [FN97] As a result, the international community began to work together to find ways to ensure that *252 such atrocities [FN98] would be avoided in the future. [FN99] In 1947, these initial efforts culminated in the drafting and adoption of the Universal Declaration of Human Rights (UDHR) - the foundation for what would become the International Bill of Rights - by the United Nations (U.N.). [FN100] Next, came the creation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) during the 1960s. [FN101] Following this was the development of the International Covenant on Civil and Political Rights (ICCPR). [FN102] Together these international human rights documents, spurred by the UDHR, form what is now known as the International Bill of Rights. [FN103]
A. Universal Declaration of Human Rights
Shortly after the creation of the United Nations in the mid 1940s, delegates from around the world met in San Francisco to find a way to ensure respect for the sanctity of human life. [FN104] These delegates, led by Eleanor Roosevelt, created the Universal Declaration of Human Rights (UDHR). [FN105] The UDHR established fundamental rights that all people have a privilege to attain and that all countries must respect. These include the right to equality before the law, freedom of religion, and the right to medical care. [FN106] The UDHR was a declaration created *253 and adopted by the U.N. as a standard by which all its members were to strive to achieve. [FN107] In 1948, the UDHR was adopted with overwhelming support as a foundational pillar of the United Nations. [FN108]
Among the many rights the UDHR recognized, health rights were specifically established as a human right. [FN109] The preamble of the UDHR simply and clearly states:
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. [FN110]
Article 25 of the UDHR goes further to state that a person has a "right to a standard of living adequate for the health and well-being of himself and of his family, including . . . medical care and necessary social services, and the right to security in the event of . . . sickness [or] disability." [FN111] Article 22 states that a person is "entitled to realization . . . of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." [FN112] As evidenced by these passages, the right to health is a core element of the UDHR that must be respected as any other human right.
B. The International Covenant on Economic, Social, and Cultural Rights
Enacted in 1976, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) [FN113] protects the right to an adequate standard of living, [FN114] the right to physical and mental *254 health, [FN115] the right to participate in cultural life, [FN116] and the right to education. [FN117] While the goal of the ICESCR is to protect important human rights, it is weak in the sense that there are no mechanisms in place to enforce the implementation of these rights. [FN118] The ICESCR simply states that nations must work within their resources to achieve the realization of the rights contained therein, thus giving parties to the covenant a way out of their ICESCR obligations. [FN119] Despite these implementation and enforcement hurdles, the ICESCR remains one of the most important covenants protecting human rights.
Through the incorporation of international human rights law, the ICESCR is able to act as the backbone for the right to health. [FN120] Article 12(1) declares that "[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." [FN121] Article 12(2) goes on to recommend changes States should make in their endeavor to attain the "highest attainable standard" possible. [FN122] While Article 12(1) provides the fundamental backdrop for the recognition and respect of the right to health, Article 12(2) lends support by addressing health of children, environmental health, "prevention, treatment and control" of disease, and the assurance of medical care. [FN123] Article 12(2) also goes on to recommend that, in a State's endeavor to attain the "highest attainable standard" possible, it should take *255 on steps to improve "industrial hygiene." [FN124] Also, Article 11 discusses human rights in the context of employment safety. [FN125] These articles are particularly relevant because they address areas that impact economic activity within a member State and ultimately that State's trade activity.
C. International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) was enacted in 1976 and protects against abuses of fundamental civil and political rights. [FN126] Like the ICESCR, the ICCPR essentially evolved from the UDHR. [FN127] The ICCPR protects freedom of expression, [FN128] freedom from unlawful arrest and detention, [FN129] the right to vote, [FN130] and most importantly here, the right to life. [FN131] The ICCPR also makes sure that the rights the covenant sets out for the territories that are parties to the covenant enjoy such rights while no individuals of such territories are denied such rights on the basis of race, sex, nationality, beliefs, and social or economic standing. [FN132] The ICCPR also contains two optional protocols that nations may sign in addition to the main covenant. [FN133] The first optional protocol protects individuals from human rights violations by enabling both States and citizens to lodge complaints about human rights violations. [FN134] The second optional protocol strives to eliminate the death penalty altogether. [FN135]
*256 The ICCPR primarily protects rights and freedoms that are included in the U.S. Constitution's Bill of Rights. For example, the ICCPR protects the right to religion, [FN136] freedom of association, [FN137] and protection against cruel and unusual punishment. [FN138] However, the ICCPR also references rights that can be directly used to support the right to health. For example, the Preamble of the ICCPR references economic, social, and cultural rights [FN139] which together and individually impact the right to health. The reference to economic, social, and cultural rights directly implicates the notion of health as a fundamental right to be protected by the nations that ratify the covenant. [FN140] While the ICCPR does not elaborate on the protections that must be afforded to individuals with regard to health, it is important to recognize it does acknowledge the importance of the protection of economic, social, and cultural rights, which encompass the right to health. [FN141]
IV. The World Trade Organization
"[T]he WTO is not just about liberalizing trade . . . ." [FN142]
As the central international organization on trade, the World Trade Organization (WTO), not only influences and controls international trade, but the WTO plays a key role in ensuring that international trade improves humanity. [FN143] Specifically, the WTO must promote the value and necessity of health rights, especially in regards to international trade. [FN144] However, neither the former General Agreement on Tariffs and *257 Trade (GATT) agreements nor the WTO recognize the link between basic human rights and trade. [FN145]
The WTO's multilateral trading scheme is complex and faces many shortcomings. [FN146] The WTO is constantly criticized by other international organizations, States, non-governmental organizations (NGOs), and scholars for not addressing human rights related concerns that are directly impacted by the actions of the WTO. [FN147] Many of the problems confronting the WTO stem from the dissatisfaction of the WTO's position against addressing human rights. [FN148] The WTO has faced a combination of external and internal pressures to change, both of which have acted to undermine the legitimacy of the WTO in the eyes of the international community. [FN149] To better address such issues, the WTO must make internal changes, not only to better adapt to the current global climate regarding international trade, but also to ensure its future success and its long-term legitimacy. [FN150]
The WTO has made the obvious statement that it is a trade organization and not a human rights organization. [FN151] While true, such a position fails to recognize the undeniable link between international trade and social policy. [FN152] Human rights should be recognized by the WTO for both the betterment of international trade and the betterment of humankind. [FN153] Through the recognition of human rights, the WTO can better *258 address health-related issues as they apply in regard to international trade. [FN154] With this understanding, the WTO should recognize basic human rights and incorporate them into its multilateral trading structure. [FN155]
In adopting such a position, and more importantly here with the incorporation of health policy goals into its trading system, the WTO must require that its member States be a party to the major international human rights covenants that form the International Bill of Rights. [FN156] Following such action, the WTO must then be willing to enforce the provisions of these covenants and not allow member States to use the organization as a haven for ignoring their human rights obligations. Ultimately, by making such changes, the WTO will be recognizing that international trade can reduce poverty and that human rights atrocities are a result of poverty. Thus, the WTO must recognize, incorporate, and enforce international human rights within its multilateral trading regime.
A. The WTO and Human Rights
As of May 16, 2008, the WTO consists of 152 member States. [FN157] Three-fourths of those member States are designated as developing countries. [FN158] According to the Preamble of the Marrakesh Agreement (the agreement that established the WTO), [FN159] the WTO was founded upon the premise of liberalizing trade amongst nations, with a specific goal of opening up world markets to developing countries in order for those nations to decrease poverty and become developed. [FN160] The Preamble of *259 the Marrakesh Agreement specifically states that the purpose of the WTO revolves around:
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of an trade in goods and services, while allowing for the optimal use of the word's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development. [FN161]
The ideals behind the WTO are clearly in line with goals of developing countries, in that it was meant to help raise standards of living and increase employment through liberalized trade. [FN162] However, this has not become a reality. [FN163]
The General Agreement on Tariffs and Trade (GATT) laid the foundation for the establishment of the WTO and the rules that govern its multilateral trading system. [FN164] The GATT was created to help liberalize trade between countries [FN165] and aimed to improve the flow of commerce between nations. [FN166] This agreement established the unofficial, de facto international organization, GATT. [FN167] GATT largely focused on the trade of goods, but during the last round of GATT trade negotiations, known as the Uruguay Round, member States decided to expand the areas to which GATT would be applied. [FN168] The WTO was created during the Uruguay Round to take over the role of GATT [FN169] and covered additional areas, including intellectual *260 property and trade in services. [FN170] In 1995, the WTO came into effect and immediately became the controlling organization of the international multilateral trading system established by GATT. [FN171] The WTO began creating agreements that covered, among other things, product safety issues, food sanitation, anti-dumping issues, and subsidy concerns. [FN172] By the mid-1990s, through the efforts of GATT, and now the WTO, industrialized member States had reduced their tariff rates on industrial goods to below four percent, [FN173] proving that enhanced trade relations between member States was desired. [FN174]
In promoting economic activity, the WTO aims to reduce various trade barriers, such as tariffs and subsidies. [FN175] These actions by the WTO promote not only interaction between countries, but also interaction between corporations and countries. [FN176] Countries can benefit from one another by focusing on the things they produce efficiently, then trading with other countries accordingly. [FN177] As a consequence, countries may become dependent on one another for the products each exports and on companies for the production of such goods. [FN178] Likewise, companies rely on an efficient work force to produce the specific products that they sell in various markets. [FN179] Therefore, two separate entities, States and companies, are dependent upon the production of goods and the labor rights required for the production of those goods. [FN180]
Countries and companies both have tremendous amounts to gain by opening themselves up to the international market. [FN181] At the same time, both also make themselves vulnerable to devastating harm, such as the loss of current and future investors. *261 [ FN182] If a country is going to open its markets up to foreign business, [FN183] that country needs to know that they will receive some benefit from such an action. [FN184] For example, unsafe products that are either imported or exported have a direct effect on the economic well-being of a nation. [FN185] If a country imports unsafe products, then that country places the health of its citizens in grave danger. [FN186] Similarly, when a country exports unsafe products to other nations, that country places its reputation on the line because foreign consumers lose confidence in the safety of the exporting nation's products and therefore, buy fewer products from that country. [FN187] Of course, this can have devastating economic effects on the exporting nation. As such, it is important for international organizations, such as the WTO, to alleviate fears that countries and companies may have in opening themselves up to the international community. [FN188] This can be accomplished through the incorporation of labor standards into trade agreements. [FN189]
[FN97]. In the wake of World War II an estimated fifty million people lost their lives. See David Pitts, The Noble Endeavor, 3 Issues of Democracy 35, 35 (Oct. 1998), available at http:// usinfo.State.gov/journals/itdhr/1098/ijde/ijde1098.htm [hereinafter Noble Endeavor].
[FN98]. Id.
[FN99]. See United Nations High Commissioner for Human Rights, Fact Sheet No. 2 (Rev.1), The International Bill of Human Rights (June 1996), available at http://www.unhchr.ch/html/menu6/2/fs2.htm [hereinafter Fact Sheet No. 2]; Thomas Cottier, Trade and Human Rights: A Relationship To Discover, 5 J. Int'l Econ. L. 111, 115-16 (2002).
[FN100]. Fact Sheet No. 2, supra note 99.
[FN101]. International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, available at http://www.unhchr.ch/html/menu3/b/a_ cescr.htm (entered into force Jan. 3, 1976) [hereinafter ICESCR]. The ICESCR provided for the respect of fundamental economic, social, and cultural rights.
[FN102]. International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 53-56, U.N. Doc. A/6316 (1966), available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (entered into force Mar. 23, 1976) [hereinafter ICCPR] (the backbone for the recognition that all people have civil and political rights).
[FN103]. Fact Sheet No. 2, supra note 99.
[FN104]. Noble Endeavor, supra note 97.
[FN105]. Id.
[FN106]. See Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (1948), available at http://www.unhchr.ch/udhr/lang/eng.htm ("Everyone has the right to life, liberty and security of person.") [hereinafter UDHR].
[FN107]. See Franklin and Eleanor Roosevelt Institute, Drafting and Adoption: The Universal Declaration of Human Rights (Aug. 27 1998), http:// www.udhr.org/history/default.htm (last visited Feb. 24, 2009) [hereinafter Drafting and Adoption].
[FN108]. Of the 58 participating delegates, 50 voted in favor of adopting the UDHR and only 8 abstained from voting. The eight abstaining countries, at the time, were almost all controlled by the Soviet Union. Id.
[FN109]. UDHR, supra note 106, at art. 25.
[FN110]. Id. at Preamble P 5.
[FN111]. Id. at art. 25.
[FN112]. Id. at art. 22.
[FN113]. Fact Sheet No. 2, supra note 99.
[FN114]. ICESCR, supra note 101, at art. 11(1).
[FN115]. Id. at art. 12(1).
[FN116]. Id. at art. 15(1)(a).
[FN117]. Id. at art. 13.
[FN118]. Moira Rayner, Universal Rights Network, World Influence of the UDHR: International Covenant on Economic, Social, and Cultural Rights, http:// www.universalrights.net/main/world.htm#two (last visited Feb. 24, 2009).
[FN119]. Id. The Covenant says:
that governments must act 'to the maximum of available resources', to achieve 'progressively' the full realisation of the Rights it protects. This gives governments - who have a discretion in how they spend their money - every reason to State that they just cannot afford them.
Id.
[FN120]. Committee on Economic, Social, and Cultural Rights [CESCR], General Comment No. 14: The Right to the Highest Attainable Standard of Health, P 2, U.N. Doc. E/C.12/2000/4 (July 4, 2000), available at http:// www.publichealthlaw.net/Reader/docs/GenCom14.pdf [hereinafter General Comment].
[FN121]. ICESCR, supra note 101, at art. 12(1).
[FN122]. Id. at art. 12(2).
[FN123]. Id.
[FN124]. Id. at art. 12(2)(b).
[FN125]. Id. at art. 6.
[FN126]. ICCPR, supra note 102.
[FN127]. Human Rights Educators' Network, From Concept to Convention: How Human Rights Law Evolves (Nancy Flowers ed., 1998), http:// www1.umn.edu/humanrts/edumat/hreduseries/hereandnow/Part-1/from-concept.htm.
[FN128]. ICCPR, supra note 102, at art. 19(2).
[FN129]. Id. at art. 9(1).
[FN130]. Id. at art. 25(b).
[FN131]. Id. at art. 6(1).
[FN132]. Id. at art. 2(1).
[FN133]. G.A. Res. 2200A (XXI), P 21, U.N. Doc. A/6316 (Dec. 16, 1966) (entered into force March 23, 1976), available at http:// www.ohchr.org/english/law/ccpr-one.htm; G.A. Res. 44/128, P 207, U.N. Doc. A/RES/44/49 (1989) (entered into force March 23, 1976), available at http:// www.ohchr.org/english/law/ccpr-death.htm.
[FN134]. Moira Rayer, World Influence of the UDHR: International Covenant on Civil and Political Rights, http://www.universalrights.net/main/world.htm#two (last visited Feb. 24, 2009).
[FN135]. Id. The ICCPR itself allows the death penalty in certain circumstances. Id.
[FN136]. U.S. Const. amend. I; ICCPR, supra note 102, at art. 18.
[FN137]. U.S. Const. amend. I; ICCPR, supra note 102, at art. 22(1).
[FN138]. See U.S. Const. amend. VIII; ICCPR, supra note 102, at art. 7.
[FN139]. ICCPR, supra note 102, at pmbl. The ICESCR and the UDHR also specifically protect these same rights.
[FN140]. Anita Pereira, Live and Let Live: Healthcare is a Fundamental Right, 3 Conn. Pub. Int. L.J. 481, 486-88 (2004).
[FN141]. ICCPR, supra note 102, at pmbl.
[FN142]. WTO Info. & Media Rel. Division, WTO, Understanding the WTO 7 (3rd ed. 2003, rev. ed. 2007), available at http://www.wto.org/english/thewto_ e/whatis_e/tif_e/understanding_e.pdf [hereinafter WTO].
[FN143]. See generally Peter Van Den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials 707 (Cambridge Univ. Press 2006) (2005).
[FN144]. Id.
[FN145]. Zagel, WTO & Human Rights, supra note 81, at 9.
[FN146]. John Howard Jackson, Sovereignty, the WTO, and Changing Fundamentals of International Law 104 (Cambridge Univ. Press 2006).
[FN147]. Anderson, supra note 3, at 708; Eres, supra note 82, at 600.
[FN148]. Gudrun Monika Zagel, The WTO and Trade-Related Human Rights Measures: Trade Sanctions vs. Trade Incentives, Austrian Rev. of Int'l & Eur. Law (2004), available at http://ssrn.com/abstract=859166 [hereinafter Zagel, Trade Sanctions].
[FN149]. See generally Dine, supra note 46, at 197-98.
[FN150]. See generally Cottier, supra note 99, at 132. Cottier states "The long-term legitimacy of the multilateral trading system relies, as much as the law of many nations and the European Union, on democracy and the advancement of human rights." Id.
[FN151]. Id. at 30. This is an obvious fact, especially since trade is why the WTO was created in the first place. However, the WTO does not seem to be saying this to correct any mistaken presumptions that they are anything other than a trade organization. Rather, the WTO seems to be using this as an excuse not to address basic human rights.
[FN152]. See generally Gonzalez-Pelaez, supra note 20. The WTO should not greatly deviate from its position as a trade-based organization.
[FN153]. Contra Eres, supra note 82, at 633-35.
[FN154]. But see generally WTO, supra note 142.
[FN155]. See generally Zagel, WTO & Human Rights, supra note 81.
[FN156]. The Covenants that make up the International Bill of Rights include the UDHR, ICCPR, and the ICESCR. See UDHR, supra note 106; ICESCR, supra note 101; ICCPR, supra note 102.
[FN157]. Understanding the WTO, Members and Observers, http:// www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Feb, 24, 2009).
[FN158]. Understanding the WTO, Special Policies, http:// www.wto.org/english/thewto_e/whatis_e/tif_e/org5_e.htm (last visited Feb. 24, 2009).
[FN159]. See David Palmeter & Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 Am. J. Int'l L. 398 (1998) (stating that the Marrakesh Agreement was the specific document that established the WTO at the end of the Uruguay Round).
[FN160]. Van Den Bossche, supra note 143, at 86.
[FN161]. Marrakesh Agreement Establishing the World Trade Organization, pmbl., Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994), available at http://192.91.247.23/english/docs_e/legal_e/04-wto.pdf.
[FN162]. Van Den Bossche, supra note 143, at 86.
[FN163]. Aaditya Mattoo & Arvind Subramanian, The WTO and the Poorest Countries: The Stark Reality 3, 7, Int'l Monetary Fund, (Working Paper No. 04/81, 2004), available at http://imf.org/external/pubs/ft/wp/2004/wp0481.pdf.
[FN164]. WTO, supra note 142, at 10.
[FN165]. Id. at 9.
[FN166]. Id.
[FN167]. Id. at 10.
[FN168]. Id.
[FN169]. WTO, supra note 142, at 10.
[FN170]. WTO & WHO, Agreements, supra note 14, at 25, P 8.
[FN171]. Id. at 9-10.
[FN172]. Id. at 11.
[FN173]. Id. at 12.
[FN174]. See WTO & WHO, Agreements, supra note 14, at 28, P 14.
[FN175]. See generally WTO, supra note 142.
[FN176]. See generally Dine, supra note 46 (discussion regarding human rights, WTO, and corporations).
[FN177]. Gonzalez-Pelaez, supra note 20, at 79.
[FN178]. See generally Yeomin Yoon & Robert W. McGee, Incorporating Labor Standards Into Trade Agreements: An Ethical Analysis, Presented at the Korea Labor Institute: Korea America Economic Association Joint Conference (July 9- 10, 2003).
[FN179]. See generally id.
[FN180]. See generally id.
[FN181]. See Dine, supra note 46, at 47.
[FN182]. See U.S. Sec. & Exch. Comm'n. Office of Investor Educ. & Advocacy, International Investing, http://www.sec.gov/investor/pubs/ininvest.htm (last visited June 26, 2008).
[FN183]. See generally Mattoo & Subramanian, supra note 163, at 10-11, 18.
[FN184]. Id. at 18.
[FN185]. See Pete Engardio et al., Broken China, Business Week, July 23, 2007, available at http://www.businessweek.com/magazine/content/07_ 30/b4043001.htm.
[FN186]. Eric S. Lipton & David Barboza, As More Toys are Recalled, Trail Ends in China, N.Y. Times, June 19, 2007, at A1.
[FN187]. Id.
[FN188]. See generally WTO, supra note 142.
[FN189]. See generally Will Martin & Keith E. Maskus, Core Labor Standards and Competitiveness: Implications for Global Trade Policy, 9 Rev. Int'l Econ. 317 (2001).
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