Human and Its Trade – A way towards development: Areeb Ahsan

Human and Its Trade – A way towards development

Author: Areeb Ahsan

KIIT Law School, Bhubaneswar 

ISSN: 2582-3655

ABSTRACT

The paper reviews how to well establish the power of Human Rights and featuring ways to develop those rights and dignity which are equal to all human beings.

The Secretary-General of the United Nations had once in his report mentioned about how the humans and their rights can be developed. Freedom is not just limited to wants and removal of fear from any threat both at the National and International level. But also, every human being must be treated with dignity and respect which will eventually help them in the enjoyment of Human Rights, and these rights are protected through the rule of law. Highlighting about how human rights can be promoted and developed not just by the signature of the UN-based treaties related to human rights but through the involvement of the agreements such as trade, which can provide practical and material benefit in exchange for compliance with, agreed-upon Human Right norms and objectives.

This paper moreover talks about the conditionality and areas of work regarding how to lower and alter different causes that are leading to the peak of violation and indiscrimination of such rights. This research also focuses on the functioning of the Human Rights Council which has played an integral role in advancing and adopting the integrity of the judicial system that governs the globe, which is directly affecting the rights and dignity of humans concerning the democratic ways on the handling of the trade-related aspects of Human rights and Rule of law.

The conclusive panel of this research paper draws a line of argument on the WTO dispute settlement related to public forums and Trade policy review mechanisms. This panel tries to identify avenues for consistency between Human Rights and Trade Laws.

HUMAN AND IT’S TRADE – A WAY TOWARDS DEVELOPMENT

  1. INTRODUCTION

Mother Teresa once beautifully quoted, “Human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity.”

The relationship between human and their equities have been contained in the Universal Declaration of the Human Rights (UDHR), the International Convent on Civil and Political Rights (ICCPR) and the International Convent on Economic, Social and Cultural Rights (ICESCR) and the two WTO agreements regarding the same have been the subject matter of the discussion.  This paper in a limited way would help to fill the gap that has occurred between the rights so embedded and the utilization of the same concerning its development through such trading.

Since the adoption of the Universal Declaration of Human rights in 1948, the values’ concerning the world has changed drastically. Out of the seven most important international agreements that form the core of international human rights laws, almost every state has ratified the UN charter that highlights such rights.[1]

In different aspects, parallels can be drawn with development in discussions on trade and rights. Though, the main issue is not whether these rights should be respected but how best to ensure that they are exercised. The whole point of discussion doesn’t lay stress on theoretical matters but mainly concerns on strategies. With the enactment of various agreement and ratification by every state, it has been a matter of realizing that even though in the opinions and approaches there are differences then also there has been various marks of instances which shows the similarity and complementarily emphasis on the scope for potential conflict is limited.[2]  An eye closure attention is made on how multilateral trading can act as an aid for the fulfillment of human rights and equality.

It is important to remind ourselves that trade is a means to an end, but must ensure that the standard of living is raised.[3] The main goal behind promoting and upbringing trade is to corroborate the link between well being and development. To regulate the trade it is as same as to forward the very first step with the same objectives of Human Trade development linked with the rights. As per to the same subject matter of fact, the states whether bound by the treaty or not, though have the obligation related to human rights contemporaneous alongside with the commitments marking the field of International Trade.[4]

  • CONDITIONALITY FOR HUMAN RIGHTS

Affecting the core of the problem is the key to slow down it. Calculating the cost-benefit analysis of the human right violators is the foremost step that should be taken as the provision of benefit for the protection of the equalities and rights. Calculation of the cost basis on the particular benefit would help to alter the economics of their crimes. Abuses may be abhorrent, but it is a rational act that people carry because it perceives a benefit. [5] This is the foremost reason why various such agreements are being made on the economic aspects of the country such as trade, which condition the delivery of valuable goods on respect for human rights, and this has gradually helped to improve human rights practices.

One of the instances can be drawn as more than 200 agreements chained between the governing states have access to regional markets. Accordingly, from the World Trade Organizational apparatus or the authorities, the scope of trading following social governance and human rights have helped to augment the standards of such rights and have also helped in making or creation of benchmarks for the maintenance of such norms for the practices clouding the rights.[6] The highlighting agreement when talking about the sphere of trade and rights is the Cotonou agreement which is a partnership agreement between developing countries and the European unions. It offers benefits from economic and trade cooperation as well as assistance for development cooperation to certain African, Caribbean, and Pacific group of states mainly known as the ACP countries. This ensures “parties to undertake, to promote and protect all fundamental freedoms and human rights, either it may be civil and political, or economic, social and cultural”[7].

The United States has been a major leader in signing these agreements that marks certain basis for trade-related agreements, and through these provisions restricted in the agreements, it tends to improve the practices of human rights and the protection of such equalities, gradually intending to develop new norms for such practices of some of its trade partners. In some areas, various provisions have been made or have provided certain market appraisals or incentives for the ratified states to weaken or loosen the restrictions on their economies and should provide at least benefits on certain rights such as worker’s rights.[8]  Human rights were and will always be an important way or a method for solving the fundamental justice issues in the areas related to trade. This can be an analytical model of assessing or finding how much trade-related aspects have helped in the development of human rights.[9] It has been a proven fact that when a state rather a repressive one, is tied to an agreement of trade with more than one state then there are opportunities which result in less violation of human rights and these states gradually and in the time being strengthens the human behavior which practically helps in maintaining the standards of rights. Those states who are party to at least one such agreement are more likely to increase or improve the norms or behaviors on human rights than to stay on the same level.

The effectiveness of the conditionality comes with certain limits for human rights. Various judgments and agreements are focused on the political and civil rights of the individuals rather than magnifying the economic rights and which form a partial or one-sided result.[10] For an agreement to be effective, it must involve the cost and benefit of such trading rather than just covering the political or the civil aspects. These agreements provide little sway over large economies; for those, the prospect of gaining benefits or the fear of losing them is relatively unimportant.

  • HUMAN RIGHTS AND RULE OF LAW

Rule of law requires a certain legal process, norms, and objectives that are consistent or is related to human rights which mainly include the core principle of equality embedded in the law itself, accountability before the law, and just and fair treatment while protecting the law and rights of the humans.[11] If rule of law in a society is not of much importance or is not that relevant then the human rights can’t be protected and the development of these rights would still be a way long process in that society. Rule of law is a mechanism for the implementation of the human rights that transforms the principle of theoretical studies into a practical one.

Rule of law has always been an important area in helping or for guiding the economic, social, and political rights in the constitution, laws, and regulations. Since such rights are justiciable and are protected by the court of law, rule of law provides certain means to redress ensuring while the rights are not protected and are violated as well as public resources are misused.  As asserted, there are certain features founded on international norms, objectives, and standards, hence states do have some different national experiences in the development of the system of rule of law.[12]

Living in dignity and with equality is the coin having human rights and rule of law the two sides of it. At various meetings and summits, it has been proven and marked that both human rights and the rule of law are interlinked as they are mutually reinforcing.[13] If one is strengthened then the other would indirectly lead the way to its development. While enforcing the rule of law it is to be noted that the human rights and the fundamental freedoms and its duties have been recognized internationally and at different levels, there is no such violation of these rights. This relationship of human rights and the rule of law has been recognized by nearly every state being the member since the adoption of the Universal Declaration of Human Rights (UDHR).

In one of the meetings of UDHR, it has been stated that “if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law.” It is not at all necessary to force any human to act against the suppression faced by him due to his right being his fundamental safety because of the rule of law protecting the rights of the humans. If such a rule of law is acting as the safeguard or the shield to human rights then the violation of such rights and oppression regarding the equalities would never be possible.

Human Rights Council has played a major role in the development of Human rights and the advancement of the link between the Rule of law and Human Rights. The council defined it as the holistic concept that mainly focuses on the ability of the judicial system or any member of the judiciary deemed competent for the subject such to resist corruption, suppression, and violation of rights, while fully respecting and taking care of the main or core values of independence, impartiality, equality, diligence and protection of rights.[14] The main reason behind the establishment of such an independent system and an effective council was to safeguard human rights and also to provide a transparent and clear way to all the objective resources which are acting as the core value around the world. Along with the protection of the rights, the council with views all over the globe is mainly undertaking the objectives of the ratified states to the agreements of trade and human rights, forming ways for the development of human rights.  Human rights should be mainstreamed and linked with trade and related agreements so that the World Trade Organization rules and regulations could meet up with the standards of the rule of law to protect and develop human rights. [15] We must priorities the growth of public interest guarding the rights rather than continuing the current emphasis on profit expansion of investors and transnational co-operations. Well, both Human rights and development aims to promote well being and freedom based on the inherent dignity and equality of all people. This is mainly possible by the way of rule of law only, which provides a guarding feature to such right, and that eventually leads to the development of the equalities.  Ministers from all the important ratified states have agreed on the notion that it is nearly useless or it’s hard to afford trading while being isolated to its gender-related human rights impacts.[16] International Human rights and International Trade covered with or governed by the rule of law will foster global peace and prosperity.

At various levels, different frameworks formulated by numerous institutions helps to ensure that guarantees included in the law are realized. If there is a lack of such institutions or objectives embedded in the frameworks, there can be some serious downfall of people’s rights and would rather lead to the step of initiating violence or any such harm caused because of this type of deprived right. In one of the most famous case, it is seen that the Islamic principles and Afghan legal traditions complicates the already and debated relationship between the rule of law and human rights.[17] Afghan government knowingly or without any impression on it, is leading to the promotion of impunity or such relaxation from the punishments for those indulged in wars or other accused of war crimes which eventually hampers or breaks the relationship of rule of law and human rights. Such loosen laws on international grounds cause the global problem of violation of human rights and peace offering safety to human natures. This negatively affects the path of reforms when talking about rule of law and human rights in countries like Afghanistan.

  • DISADVANTAGE OF TRADE AGREEMENT ON HUMAN RIGHTS

Along with having certain great stairs of leading human rights to the garden of development, trade agreements though have various outbreaks and disadvantages which can in numerous instances lead to violation of human rights and equalities. Trade harming human rights causes slow down in the process of development of global peace and leads to suppression of the entitlement of equalities of the group of persons. 

While broadening the scope of the abnegation of trade agreement it is seen that the rights of consumers, residents, workers, those living in poverty, and others so related are damaged. Along with that, the ability of the states whether as per the agreement or not to help, protect, and to control by its laws for the human rights of their people is most of the time affected. Mediation and negotiation of these agreements are done without taking a note or without mentioning the impact of such failures that would cost the rights related to health, education, food, water, and work. [18] The main purpose of human rights analysis is to explore how does trade and related agreement affects the enjoyment of human rights. Building with it, how the protection and progress of human rights are violated because of certain trade reforms. The main problem or the so-called dispute arises when two different governments of the ratified states believe that the other is violating the commitment made under the World Trade Organizational rules and regulations regarding customs, taxes, tariff, etc. and this intern causes lots of problems internationally focusing upon the human rights.

Trade agreement and laws always face a series of questionable events when both developed and developing countries are taken care of. It is a fact that the provisions laid down under these agreements are not of much importance for either of the states and this could indirectly lead to oppression of the rights of humans in that particular state. An agreement contains provisions for all the ratified states but, certain norms could be a mislead to either developing countries or the developed countries while considering the rights of humans in that very own state.[19] Some trade-related agreements or policies such as subsidies on farming products in the developed countries and the right to food in developing countries are causing serious negative impacts on the right to health of trade-related intellectual property rights. Through these agreements, there have been bleak impacts on the food speculation and the products related to it on the right to food. Also, considering plenty of service sectors there has been a widespread downfall in tariff revenues due to liberalization through such agreements.

Experience has shown that the World Trade Organizational agreement on Trade-Related Intellectual Property Rights (TRIPs) shows alarming hurdles and hindrances to the fulfillment of the right to health, mostly focusing on the use of medicine and medical drugs.[20] Trade being infamous for no transparency and undemocratic, usually stands in the middle of the rights so embedded in the humans.[21] In the Universal Declaration of Human Rights Article 21 it is mentioned about people taking part in the governance of a country. But, due to certain bilateral or multilateral trade agreements, these rights are held non-useful because of no transparency in such agreement. If there is no such transparency, then the people would not able to take part in the decision making or rather would be left out from the governance. The International Convent on Civil and Political Rights talks about the right of access to information to all the people of the ratified states of that particular trade agreement.[22] Every individual of the state should be familiar with the norms and objectives set in the agreement. Knowing about and having access to certain information at a base level which is for the benefit of the people is a right granted to them. But, due to “not being transparent” trade agreements and its standards laid down are unknown to the common people, which eventually causes the problem and leads to the violation of human rights. The participation of people in the conduct of public affairs is also a right embedded to them.[23] If the people of the state would not participate in the conduct of the process of formulation of the public affairs, then the decisions regarding the same would just be a thin line of importance to them. People should participate and they should have the say in the conduct of public matters and affairs related. Though, trade being the closed circle agreements, always restricts the governance of more and more people in the agreements which usually leads to a lack of effective decision making and along with it oppressiveness of the human rights due to such an undemocratic way of dealing. 

Most of the trade agreement, either bilateral or multilateral agreements are negotiated at every occasion or invariably without being at the sight of the common people. Such negotiations augment so quickly that even the people and various specialists in that particular field are not able to comment or able to have a say on the matters and norms of the agreement that is negotiated. Some of the international negotiations are examples of such drawbacks of the trade agreement and human rights. In the case of Thailand and the USA agreement, The United States demanded the Thailand government to accept the negotiation verbally to keep the agreement a secret in the eyes of other states. The Thai government then signed another agreement with Australia without the involvement of the specialists and experts of the parliament. Even the norms, objects and the contents of the signed agreement were not made to disclose to the public until and unless the whole agreement was concluded. [24] As the rules developed, the effect of World Trade Organizational norms and objectives on Human Rights through the government’s ability to regulate or take measures to promote human rights at the global level has decreased. WTO’s focus on promoting free trade and certain bilateral agreements seeks to do away with possible regulatory interferences with the free flow of goods and services, causing the government to restrict or limiting its ability in terms of the development of human rights. This has raised numerous problems and concerns related to the most important elements of living i.e. food, water, and health.[25]

One sized shoe for all the feet does not exist. Likewise, one solution for all different problems is near to impossible. The government should and must need some regulatory space and flexibility to fix the domestic regulatory policies and norms to the question of the country and the rights. Though Liberalization in the service and trade sectors are causing various alarming problems related to flexibility and making of regulatory policies.[26] From the viewpoint of the human rights development perspective, the states must not commit themselves and different sectors under the General Agreement on Trade in Services until and unless the problem is drawn out or the human rights effect has been evaluated. 

Moreover, it has been widely viewed that, in numerous trade-related agreements there are usually biased or preference is made out for some states.[27] These agreements sometimes prefer a certain group of states, which caused inequalities and conflicts between other states because of this act of being bias. Agreements are for states, developed and developing ones but many times the provision in these trade-related agreements doesn’t lead to the development of global human equalities though only a few states can take the significance of it. These mainly lead to the promotion of non-sustainable development and the use of those resources which are not allocated by every state causing inequality to other countries. Trade being cost incurred agreement leads to no governance or inappropriate governance because the rights that are embedded or granted to them can be used to secure those groups who are both financially and politically strong rather than those who lack such segments.[28]

  • CONCLUSION

Development based on human rights is not just a matter of old wine in new bottles, but also forming of new ideas and ways to strengthen it. The important task to solve the entire problem should be based on mainstreaming human rights and should ensure trade-related aspects must be focused on promoting and fulfilling human rights. The main area of hammering should be widening the scope of the World Trade Organization on human rights. The link should be created to integrate the concern of human rights and equalities on not-discriminating, keeping a check, monitoring, equal support, democratic participation, and accountability at every step that is covered in the formulation of the trade policy. The main concern should also be drawn on making these trade-related policies transparent so that every individual from the state can have opinions on such agreements. There should be widespread participation of small groups also in trade policy by both developed and developing countries so that the focus should be shared by development groups, environmental groups and women safety or gender safety groups such as Center for International Environment Law (CIEL), International Gender and Trade Network (IGTN), etc. Human rights scholars, experts, and advocates should significantly forward the agenda of public interest in trade-related frameworks by demonstrating the extraordinary usefulness of human rights and equalities by monitoring and accounting a check on other public interest areas.

The best way to achieve sustainable development in terms of global trade by not affecting the rights of humanity is through exchanging the source of knowledge and ideas by the advocates and expertise between other Human rights or public related interest scholars. This would lead to the creation of news reforms for trade policies and agreements that could help in meeting the standards of non-violation of rights of all the group of individuals and should join hands with the forces to achieve International trade and trade rules, including those developed and applied through the World Trade Organization that support rather than oppressing or threaten human rights. It is important to note that in the street of development the general political motivation plays an important role. Development based on rights on the face of it mainly concerns about social justice rather than seeking freedom for a notion. 

World Trade Organization is not way far from being a true supporter of human rights. Implementation of new ideas and rules such as trade measures designed to enhance human rights, raising concern for pharmaceuticals, and lowering the cost for its education and various more. World Trade Organization is trying to make objectives and standards democratic for all the nations so that globally, every individual should march towards the valley of development. New laws and related provisions are being implemented that are matching the scope of rule of law which supervises the area of human rights by making it safe and non-oppressive by other governing nations. Human Rights are of universal interest because it is the inherent nature of all human beings to yearn for freedom, equality, and dignity and they have the right to achieve it.

“Trading of Human Rights is highly impossible, but trading is the key to the development of human rights.”


[1]  Great Insights, Volume 1, Issue 2.

[2]  International Institute on Sustainable Development (on Trade and Sustainable Development)

[3]  WTO Marrakesh Agreement establishing the World Trade Organization (1994) preamble.

[4]  Commentary on Two practical suggestions for promoting coordination and coherence by Caroline Dommen

[5]  Great Insights, Volume 1, Issue 1.

[6]  Blame it on the WTO? A human rights critique by Sara Joseph

[7]  Article 9.2 of the Cotonou Agreement

[8]  The African Growth and Opportunity Act (AGOA) of 2000

[9]  James Harrison, Co-Director of the Centre for Human Rights and Practices

[10]  Report on the Cotonou Agreement.

[11]  S/2004/616, Para 6

[12]  Resolution 67/1 of the General Assembly

[13]  2005 World Summit Outcome

[14]  2006/23 Resolution of United Nations Economic and Social Council

[15]  Report from High Commissioner for Human Rights

[16]  Article on reshaping Trade through Women’s Economic Empowerment

[17]  Sevastik, P. Rule of Law, Human Rights and Immunity by Hague J Rule Law (2019)

[18] Joint report from the UN Human Rights Office and United Nations Development Program 

[19]  Mentioned by the legal advisor for the third wheel network

[20]  Under ICESCR, Art. 12

[21]  Sur, Rev. International Dereitos Human, Volume 2, Number 3.

[22]  Article 19 of ICCPR

[23]  Article 25 of ICCPR

[24] “Thailand’s Free Trade Agreements and Human Rights Obligations” (March 2005).

[25] “Raising Human Rights Concerns in the World Trade Organization – Actors, Processes and Possible Strategies” (Human Rights Quarterly, vol. 24, pp. 1-50, 2002); and OHCHR, “Human Rights and Trade”

[26]  Rules on the liberalization of trade in services affect human rights, 3D & Forum-Asia, “Practical Guide to the WTO for Human Rights Advocates” (2004)

[27]  Morten Broberg & Hans-Otto Sano (2018) Strengths and weaknesses in a human rights-based approach to international development – an analysis of a rights-based approach to development assistance based on practical experiences, The International Journal of Human Rights, 22:5, 664-680, DOI: 10.1080/13642987.2017.1408591

[28] Hickey and Mitlin refer to the neglect of women’s rights in some cases and also to growing tensions between cattle-based communities and agricultural ones. S

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