The Jean Monnet Program
Professor J.H.H. Weiler
European Union Jean Monnet Chair
Jean Monnet Working Paper 7/01
TIME FOR INTEGRATING HUMAN RIGHTS INTO THE LAW OF WORLDWIDE ORGANIZATIONS
Lessons from European Integration Law for Global Integration Law
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TIME FOR INTEGRATING HUMAN RIGHTS INTO THE LAW OF WORLDWIDE ORGANIZATIONS
Lessons from European Integration Law for Global Integration Law
by Ernst-Ulrich Petersmann*
“Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized."
Universal Declaration of Human Rights 1948, Article 28
Most people spend most of their time on their economic activities of producing goods and services and exchanging the fruits of their labor for other goods and services that are necessary for their survival and personal development. Also international trade and investments are never ends in themselves, but means for increasing individual and social welfare through voluntarily agreed and mutually beneficial transactions involving the exercise of liberty rights and property rights. Even though the economy is no less important for citizens and their human rights than the polity, the interrelationships between human rights and economic welfare - notably the enormous opportunities of the international division of labor for enabling individuals to increase their personal freedom, real income and access to resources necessary for the enjoyment of human rights - are neglected by human rights doctrine. The “Global Compact”, launched by UN Secretary-General Kofi Annan in 1999, calls upon business to “support and respect the protection of international human rights within their sphere of influence and make sure their own corporations are not complicit in human rights abuses.” This contribution calls for a complementary “Global Compact” between the UN and UN Specialized Agencies, as well as with other worldwide public organizations like the World Trade Organization (WTO), so as to integrate universally recognized human rights into the law and practice of intergovernmental organizations, for example by requiring them to submit annual “human rights impact statements” to UN human rights bodies and to engage in transparent dialogues about the contribution by specialized agencies to the promotion and protection of human rights. In view of the inherent tendency of liberty to destroy itself (“paradox of freedom”), human rights need legislative, administrative and judicial protection in the national and international economy no less than in the polity vis-à-vis private as well as governmental abuses of power.
Such an “integration approach” differs fundamentally from the 1945 paradigm of “specialized agencies”. It takes into account the regional experiences in Europe that respect for human rights in integration law enhances not only the protection of human rights across frontiers, democratic legitimacy and rule of law at national and international levels of governance, but also economic and social welfare. The article argues that the universal recognition of human rights as “inalienable birth rights” of every human being entails “constitutional primacy” of the inalienable core of human rights vis-à-vis national and international legislative, executive and judicial activities that serve “constitutional functions” by operationalizing and balancing human rights. As in European integration law, human rights should be recognized also in global integration law as empowering citizens, as constitutionally limiting abuses of national and international regulatory powers, and as requiring governments to protect and promote human rights in all policy areas and across national frontiers. The article criticizes UN human rights law for neglecting economic liberties, property rights and freedom of competition because - as legal preconditions for a mutually welfare-increasing division of labor among free citizens that promote efficient use of scarce resources - economic human rights are essential for enabling individuals to acquire, possess, use and dispose of the resources necessary for enjoying human rights. A UN Action Program for integrating human rights into the law of worldwide organizations is necessary so as to render the “indivisibility” of human rights, and their instrumental functions for promoting economic and social welfare and “democratic peace”, more effective. The article concludes with case-studies on the need for integrating liberty rights and social rights into the law of the WTO so as to render human rights and also WTO law more effective.
Introduction: Time for Reconsidering the ‘Washington Consensus’ and Strengthening Human Rights in Global Integration Law
The human rights obligations in the UN Charter and in the Universal Declaration of Human Rights (UDHR) of 1948 were negotiated at the same time as the 1944 Bretton Woods Agreements, the General Agreement on Tariffs and Trade (GATT) of 1947 and the 1948 Havana Charter for an International Trade Organization. All these agreements aimed at protecting liberty, non-discrimination, rule of law, social welfare and other human rights values through a rules-based international order and “specialized agencies” (Article 57 UN Charter) committed to the economic principle of “separation of policy instruments”:
foreign policies were to be coordinated in the UN so as to promote “sovereign equality of all its Members” (Article 2:1 UN Charter) and collective security;
liberalization of payments and monetary stability were collectively pursued through the rules and assistance of the International Monetary Fund (IMF);
GATT 1947 and the Havana Charter aimed at mutually beneficial liberalization of international trade and investments;
development aid and policies were coordinated in the World Bank Group;
and social laws and policies were promoted in the International Labor Organization (ILO) and other specialzed agencies (like UNESCO and WHO).
Apart from a few exceptions (notably in ILO, UNESCO and WHO rules), human rights were not effectively integrated into the law of most worldwide organizations so as to facilitate functional international integration (such as liberalization of trade and payments) notwithstanding different views of governments on human rights and domestic policies (such as communism). In accordance with the “principles of justice” elaborated by modern legal philosophers1 and reflected in the constitutional law of the leading postwar hegemonic power2, the postwar institutions gave priority to reciprocal international liberalization (e.g. in the context of the IMF, GATT, WTO, WIPO and ILO) and to wealth creation. Economic and social rights and redistribution of wealth were perceived as primarily the responsibility of national governments, to be supplemented by “international benevolence”.3
This contribution argues that there are important moral, legal, economic and political reasons why the “logic of 1945” no longer offers an appropriate paradigm for global integration and democratic peace in the 21 century. The “human rights clauses” in the European Union (EU) Treaty, in the association and cooperation agreements between the EU and more than twenty countries in Eastern Europe and the Mediterranean, and in the EU’s Cotonou Agreement with 77 African, Caribbean and Pacific states make “respect for human rights, democratic principles and the rule of law … essential elements” of these agreements.st The Quebec Summit Declaration of April 2001 and the "Inter-American Charter of Democracy" of September 2001, adopted by more than 30 member states of the Organization of American States, likewise link the plans for a Free Trade Area of the Americas (FTAA) to the strengthening of human rights and democracy. Even though realists continue to dominate foreign policy-making, human rights are becoming ever more important parts of the national identity and of the foreign and security policies of states, as illustrated by the humanitarian intervention by the 19 NATO countries in the Kosovo crisis and their invocation of NATO’s mutual defense principle (Article 5) in response to the terrorist attacks in New York and Washington on 11 September 20014 The now regular civil society protests at the annual conferences of the IMF, the World Bank and the WTO, and the proposals for including environmental rules and social standards into the global integration law of the WTO, are further illustrations of the need to examine whether the European and American “integration paradigm” should not also become accepted at the worldwide level in order to promote consensus on a new kind of global integration law based on human rights and solidary sharing of the social adjustment costs of global integration.
The needed change from international functionalism to constitutionalism does not put into question the economic efficiency arguments for “optimizing” and separating policy instruments.5 However, European integration confirms that the collective supply of public goods (such as global division of labor) may not be politically feasible without comprehensive “package deals” including redistributive “principles of justice” and solidary responses to “market failures”.6 Less-developed countries, for instance, often perceive market competition as a “license to kill” for multinational corporations from developed countries as long as liberal trade rules are not supplemented by competition and social rules (as in the EC) promoting fair opportunities and equitable distribution of the gains from trade. In order to remain politically acceptable, global integration law (e.g. in the WTO) must pursue not only “economic efficiency” but also “democratic legitimacy”and “social justice” as defined by human rights. Citizens will rightly challenge the democratic and social legitimacy of integration law if it pursues economic welfare without regard to social human rights, for example the human right to education of the 130 million children (aged from 6 to 12) who do not attend primary school; the human right to basic health care of the 25 million Africans living with AIDS, or of the about 35'000 children dying each day from curable diseases; and the human right to food and an adequate standard of living for the 1.2 billion people living on less than a dollar a day. The new opportunities for the worldwide enjoyment of human rights created by global division of labor (such as additional economic resources, job opportunities, worldwide communication systems, access to new medicines and technologies) must be accompanied by stronger legal protection of social human rights so as to limit abuses of deregulation (e.g. by international cartels, trade in drugs and arms, trafficking in women and children), help vulnerable groups to adjust to change without violation of their human rights, and put pressure on authoritarian governments to protect not only business interests but the human rights of all their citizens.
Legal, Economic and Political Arguments for Integrating Human Rights into the Law of Worldwide Organizations
Most of the 143 WTO member states have ratified or signed the 1966 UN Covenants on civil, political, economic, social and cultural human rights, other UN human rights covenants as well as regional and bilateral treaties on the protection of human rights. In contrast to the judicial remedies provided for in the European and Inter-American Human Rights conventions7, however, the worldwide human rights obligations and supervisory bodies under the six “core” UN human rights treaties (on civil, political, economic, social and cultural human rights, rights of the child, prohibition of torture, racial discrimination and discrimination against women) do not ensure effective protection of human rights by national and international courts.8 The 183 multilateral treaties on labor and social standards adopted in the ILO suffer likewise from inadequate enforcement mechanisms.9 In many countries, widespread and unnecessary poverty, health and food problems reflect a lack of effective protection of human rights through legislation, administrative procedures (e.g. in agricultural, health and labor ministries), judicial remedies and assistance by national and international organizations for the protection of human rights (e.g. to health, food and work). The more globalization renders “foreign” and “domestic affairs” inseparable, the more "realist" claims for separation of policy instruments and for “primacy of foreign policy” (including monetary policy in the IMF and trade policy in the WTO) risk undermining human rights and policy-coherence at home and abroad.
From a human rights perspective, the universal recognition of human rights as part of general international law requires a human rights framework for all areas of international law and international organizations so as to render human rights more effective and promote better coherence of national and international law and policies. The state-centered tradition of treating individuals as mere objects of international law, and the contradictory behavior of governments paying lip-service to human rights in UN bodies but advocating “realpolitik” without regard to human rights in “specialized” international organizations, are inconsistent with the legal primacy and constitutional functions of human rights. The universal recognition of the indivisibility of civil, political, economic, social and cultural human rights has contributed to increasing jurisprudence by national and international courts that economic and social rights (such as the EC Treaty guarantees of freedom of trade and non-discrimination of women) may be no less justiciable than civil and political rights.10 Also economists, politicians and civil society groups increasingly recognize the relevance of human rights for economic welfare which must be defined not only in quantitative terms (e.g. as increase in real income and national production of goods and services) but also in terms of substantive freedom and real capability of citizens to have access to the resources necessary for exercising human rights. European integration offers three important lessons why, and how, human rights need to be integrated into the law of international organizations so as to better enable citizens to pursue their self-development, peace and prosperity across frontiers.
A The Law of International Organizations Must be Construed in Conformity with the Human Rights Recognized by Member States
Just as the ratification of the European Convention on Human Rights (ECHR) by all EC member states prompted the EC Court of Justice to construe EC law in conformity with the human rights guarantees of the ECHR, the law of worldwide organizations must be interpreted in conformity with universally recognized human rights law.11 The necessary balancing of civil, political, economic, social and cultural human rights may legitimately differ from country to country in response to their different laws and procedures, resources and preferences. In worldwide organizations, governments therefore remain reluctant to incorporate “human rights clauses” into the law of specialized organizations so as to avoid conflicts between international and domestic laws. As in the EC, international courts (e.g. the WTO Appellate Body) and human rights organizations (e.g. the UN Committee on Economic, Social and Cultural Rights) should therefore take the lead – with due deference to the “margin of discretion” of democratic legislatures, and in cooperation with the growing civil society requests for more effective protection of human rights in worldwide organizations – in interpreting and progressively developing the law of specialized organizations in conformity with universally recognized human rights. The needed human rights framework for coherent national and international “multi-level governance” requires a “global compact” for incorporating human rights into the public law of intergovernmental organizations no less than for promoting respect for human rights in private business practices of international corporations. The UN should call upon all international organizations to submit annual "human rights impact statements" examining and explaining the contribution of their respective laws and practices to the promotion of human rights.
B Human Rights Promote the Effectiveness of International Organizations
The human-rights-approach advocated by the UN Development Program, and its central insight that “rights make human beings better economic actors”, should become accepted as a common legal framework by all international organizations.12 Legal doctrine has long since neglected that human rights constitute not only moral and legal rights and corresponding obligations of governments. They also serve instrumental functions for solving social problems confronting all societies13, such as:
Conflict of interest problems: Equal human rights set incentives for transforming the Hobbesian “war of everybody against everybody else” among utility-maximizing egoists in the “state of nature” where the “wild, lawless liberty” (Kant) of individuals may depend on their physical power, into peaceful cooperation based on equal legal rights. Also in the economy, the inevitable conflicts between producer interests (e.g. in high sales prices) and consumer interests (e.g. in low prices) can be reconciled best on the basis of equal liberty rights (e.g. freedom of contract) and other human rights.
Power problems: The history of successive “human rights revolutions” demonstrates that human rights offer “countervailing powers” enabling citizens to defend their human rights to self-government against abuses of government powers and to limit the constitutional task of governments to the “public interest” defined in terms of equal human rights.
Compliance and enforcement problems: Most rules do not enforce themselves. There are also often no political lobbies for rule-compliance and correction of enforcement errors. Human rights (e.g. of access to courts) and corresponding obligations (e.g. for compensation for violations of human rights) set incentives for decentralized enforcement of rules by self-interested, vigilant citizens.
Value problems: By protecting (e.g. through freedom of religion, freedom of opinion and freedom of the press) diversity of individual values and preventing majorities from imposing their value preferences on minorities, human rights promote peaceful coexistence, tolerance and scientific progress.
Scarcity problems: Human rights (e.g. property rights, freedom of contract) set incentives for savings, investments and mutually beneficial division of labor and enable individuals to acquire, buy and sell goods and services whose supply remains scarce in relation to consumer demand.
Information problems: Human rights (e.g. to freedom of information) not only entitle individuals to act on the basis of their own personal knowledge and to acquire and take into account the personal knowledge of others. They also protect decentralized, spontaneous information and coordination mechanisms (such as market prices) which enable individuals to take into account knowledge dispersed among billions of human beings even if individudals remain inevitably “rationally ignorant” of most of this dispersed knowledge.
As long as unnecessary poverty continues to prevent billions of human beings from enjoying human rights, the empirical evidence on the contribution of human rights to economic welfare is of particular importance for promoting the effectiveness of human rights.14 For instance, property rights and liberty rights set incentives for efficient use of resources and enable citizens to coordinate their individual investments, production, trade and consumption in a decentralized and welfare-increasing manner. By assigning liberty rights (e.g. to self-development, freedom of contract and freedom of exchange) and property rights (e.g. to acquire, possess, use and dispose of scarce resources), and by defining individual responsibility and liability rules, human rights create incentives for savings, investments, efficient use of dispersed knowledge, mutually beneficial cooperation (e.g. through agreed exchanges of property rights) and decentralized markets (e.g. for labor, capital, goods and services) aimed at satisfying consumer demand and consumer preferences. Such “economic markets” inducing investors, producers and traders to supply private goods and services demanded by consumers involve democratic “dialogues about values”15 which are no less important for effective enjoyment of human rights than the “political markets” for the supply of “public goods” by governments.
The centuries-old English and American common law tradition of protecting equal freedoms of traders, competitors and consumers against “unreasonable restraint of trade” and “coercion” reflect an early recognition of the historical experience that markets risk to destroy themselves (e.g. as a result of monopolization and cartel agreements) unless freedom and abuses of power are constitutionally restrained. The history of competition law and constitutional law in Europe and North America confirms the economic insight that the efficiency of market mechanisms (e.g. for allocating resources in a manner coordinating supply and demand) depends, inter alia, on effective protection of individual freedoms (e.g. of information, production, trade, competition and freedom of association) and protection of property rights in both material and intellectual resources. If market failures adversely affect human rights, economic theory teaches that governments should correct such market imperfections through “optimal” interventions directly at the source of the problem (e.g. through labor, social and health legislation, prohibitions of cartels and environmental pollution) without preventing citizens to engage in mutually beneficial trade.
The economic and human resources needed for the full enjoyment of human rights thus depend on making human rights an integral part of a social and sustainable market economy.16 The successful integration of human rights into EC law and policies confirms that the economy and “specialized organizations” must not be regarded as autonomous fields unrelated to the human rights of producers, workers, investors, traders and consumers. In order to strengthen the mutual synergies between human rights and integration law also at the worldwide level, UN human rights law must overcome its longstanding neglect of economic liberty rights, property rights and competition safeguards as indispensable means of promoting widespread ownership of economic and human capital (such as health and education) and of preventing small minorities from controlling the economy and polity. WTO members must likewise interpret their declared treaty objectives of “raising standards of living, ensuring full employment and a large and steadily growing volume of real income…, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development” (Preamble of the WTO Agreement), in conformity with their human rights obligations.
C Human Rights Promote Democratic Legitimacy and Self-Governance in International Organizations
At the national level, most of the 189 UN member states now recognize human rights and the need for constitutional rules protecting, implementing and balancing human rights. In Europe and North America, almost all countries have introduced also complementary constitutional safeguards of market economies and competition laws based on the insight that equal freedoms of citizens need to be protected through institutions, procedures, substantive legal safeguards and individual rights in the economy no less than in the polity so as to prevent abuses of private and public power that were not consented by citizens and reduce their welfare. At the level of worldwide organizations, however, protection of universally recognized human rights often remains ineffective because the complementary constitutional principles needed for effectuating human rights – such as democratic participation, parliamentary rule-making, transparent “deliberative democracy”17 and judicial protection of rule of law – have not yet become part of the law and practices of most worldwide organizations.
The history of European integration suggests that the emergence of a human rights culture promoting democratic peace and social welfare depends on empowering individuals to defend not only their civil and political human rights, but also their economic and social rights through individual and democratic self-government and access to courts. Inside the EC, the judicial protection of “market freedoms” and of non-discrimination principles as fundamental individual rights18 became an important driving force for the progressive realization of the common market and of “an area of freedom, security and justice” (Article 61 EC Treaty). The EC Court emphasized that economic freedoms “are not absolute but must be viewed in relation to their social function”19 and with due regard to human rights.20 The EC jurisprudence on social rights (e.g. “the principle of equal pay for male and female workers for equal work” in Article 141 EC Treaty) strongly contributed to the emergence of a European “social market economy” in which EC member states are required to extend social rights (e.g. to education and vocational training) to nationals of other EC member states. The new treaty objective of “appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (Article 13) confirms the functional interrelationships between economic and political order and human rights.
Outside Europe. the withdrawal, in April 2001, of the complaints in the South African Supreme Court by 39 pharmaceutical companies against government regulations facilitating access to AIDS medicaments likewise demonstrated the importance of civil society support and of judicial remedies for reconciling national and international economic law (e.g. on trade-related intellectual property rights) with social human rights. In UN human rights law, however, the indivisibility of human rights and justiciability of economic and social rights are not sufficiently protected so as to enable citizens, economic operators and judges to enforce and progressively develop economic and social rights in domestic and international courts (as inside the EC). An anti-market bias of UN human rights law will also reduce its operational potential as a benchmark for the law of worldwide economic organizations and for a rights-based market economy and jurisprudence e.g. in WTO dispute settlement practice. Reconciling civil, economic and social human rights also requires to admit that, in a world of constant change, human rights cannot be rights to be immune from adjustment pressures. Promoting individual responsibility and human capacity to adjust to inevitable change in a manner respecting human dignity remains one of the most difficult tasks of a human rights policy protecting individual liberty and global integration across frontiers.
Obstacles on the Way Towards a ‘Human Rights Culture’ in Global Integration Law: Learning from European Integration
State-centered international lawyers often ignore that markets are a necessary consequence of, and an indispensable means for, effective protection of human rights. European integration confirms the insight of “functional theories” that citizen-driven market integration can set strong incentives for transforming “market freedoms” into “fundamental rights” which - if directly enforceable by producers, investors, workers, traders and consumers through courts (as in the EC) – can reinforce and extend the protection of basic human rights (e.g. to liberty, property, food and health). Functional “low policy integration” may also contribute more effectively to “democratic peace” than it may be possible in government-centered “high policy organizations” (like the UN) whose foreign policy and security objectives often meet with political resistance on grounds of national sovereignty.
A Market Integration Law Can Promote Human Rights
Wherever freedom and property rights are protected, individuals start producing and exchanging goods and services demanded by consumers. Enjoyment of human rights requires use of dispersed informations and economic resources that can be supplied most efficiently, and most democratically, through division of labor among free citizens and liberal trade promoting economic welfare, freedom of choice, and the free flow of scarce goods, services and informations across frontiers.21 The fact that most people spend most of their time on their “economic freedoms” (e.g. to produce and exchange goods and services including one’s labor and ideas) illustrates that for ordinary people, unlike for many lawyers22, economic liberties are no less important than civil and political freedoms (e.g. to participate in the democratic supply of “public goods”).
The moral “categorical imperative” and the legal human rights objective of maximizing equal liberties across frontiers corresponds with the economic objective of maximizing consumer welfare through open markets and non-discriminatory competition. Hence, there is no reason for human rights lawyers to neglect the economic dimensions of human rights problems – such as the dependence of human rights (e.g. to work, food, education, housing and health-care) on supply of scarce goods, services and job opportunities. Likewise, “economic lawyers” must not disregard the human rights dimensions of economic law, for instance that savings, investments and economic transactions depend on property rights and liberty rights (such as freedom of contract and transfers of property rights).23 Also foreign policy-makers and economists need to reconsider their often one-sided views that economic development should be defined in purely quantitative terms (e.g. without regard to real human capability to enjoy human rights), or that the economic tasks of “specialized agencies” (like the IMF, the World Bank, and the WTO) should not be “overloaded” with human rights considerations because they may be abused as pretexts for protectionist restrictions.24
B Market Integration Promotes Legal and Political Integration
Free trade area agreements, customs unions and common markets were important stages in the historical formation of many federal states. The progressive evolution of the EC Treaty – from a customs union treaty focusing on economic freedoms to a modern “treaty constitution” protecting human rights and “democratic peace” far beyond the economic area – illustrates the functional interrelationships between economic, political and legal integration.
The negotiators of the 1957 Treaty establishing the European Economic Community thought that the human rights guarantees in the national constitutions of EC member states and in the European Convention on Human Rights (ECHR, 1950) were sufficient for protecting human rights in the common market. Hence, similar to GATT 1947 and the WTO Agreement, the EC Treaty of 1957 did not refer to human rights law based on the belief that mutually beneficial economic liberalization would promote, rather than endanger, the national and international human rights guarantees. Today, however, EU law has evolved into a comprehensive constitutional system for the protection of civil, political, economic and social rights of EU citizens across national frontiers. Also the objective of the EU’s common foreign and security policy is defined by the EU Treaty as “to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms” (Article 11). The EU has consequently insisted on including “human rights clauses” and “democracy clauses” into international agreements concluded by the EC with more than hundred third countries. The adoption of the Charter of Fundamental Rights of the European Union in December 2000, and the proposals for incorporating this Charter into a European Constitution at the intergovernmental conference scheduled for 2004, confirm the “functional theory” underlying European integration, i.e. the view that economic market integration can progressively promote peaceful cooperation and rule of law beyond economic areas, thereby enabling more comprehensive and more effective protection of human rights than has been possible in traditional state-centered international law.25
C Recognition of Citizens as Legal Subjects of Integration Law Promotes the Emergence of International Constitutional Law
Inside the EC and in the European Economic Area between the EC and third European countries, the treaty prohibitions of restrictions of the free movement of goods, services, persons, capital and related payments, as well as the treaty guarantees of non-discrimination (e.g. in Article 141), were construed by the EC Court and national courts as individual economic freedoms to be protected by the courts.26 The national constitutional guarantees of “the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law” were progressively recognized as “principles which are common to the Member States” and legally binding also on all EU institutions, as later acknowledged in Article 6 of the EU Treaty. In conformity with the EC Treaty requirements to comply with international law (cf. Articles 300,307) and cooperate with other international organizations (cf. Articles 302-306), the EU Treaty now requires explicitly respect for the European Convention on Human Rights (cf. Article 6:2 EU Treaty), the 1961 European Social Charter and 1989 Community Charter of the Fundamental Social Rights of Workers (cf. Article 136 EC Treaty), and for the 1951 Geneva Convention and 1967 Protocol on the protection of refugees (cf. Article 63 EC Treaty).
The constitutional guarantees of the EU for economic liberties and complementary constitutional, competition, environmental and social safeguards have also induced numerous EU initiatives to strengthen competition, environmental and social law in worldwide international agreements. The strong competition law of the EC reflects the constitutional insight that - in the economy no less than in the polity – equal freedoms of citizens and open markets need to be legally protected against abuses of public powers as well as of private powers.27 The EC Treaty prohibitions of cartel agreements (Article 81) and of abuses of market power (Article 82) are not only protected by the ECJ as individual rights of “market citizens”. They also prompted all EC member states to enact national competition laws enforced by independent national competition authorities. Likewise, under the influence of EC competition law and of the incorporation of competition safeguards into the EC's’ "Europe agreements” and association agreements, also most third states in Europe have progressively introduced, since the 1980s, national competition laws protecting citizens and economic competition against abuses of private and public power.
D Lessons for Global Integration Law?
The paradoxical fact that many developing countries remain poor notwithstanding their
wealth of natural resources (e.g. more than 90% of biogenetical resources in the world), is attributed by many economists to their lack of effective human rights guarantees and of liberal trade and competition laws. The absence of effective legal and judicial protection of liberty rights and property rights inhibits investments and acts as an incentive for welfare-reducing private and governmental restrictions of trade and competition and collaboration between cartelized industries and authoritarian governments.28 The widespread abuses of private power in Africa, Asia and Latin America are no less dangerous for human rights and social welfare than abuses of public government powers. The EC proposals for complementing the liberal trade rules of the WTO by worldwide competition rules have met with increasing support notably by less-developed countries who have suffered from discriminatory cartel practices and find it politically difficult to overcome anti-competitive practices of powerful domestic industries through unilateral national legislation.29
Investments, production, trade and also protection of the environment depend on legal
incentives and legal rights for investors, producers, traders, polluters and consumers. The EC’s integration approach – notably the recognition and empowerment of citizens as legal subjects not only of human rights but also of competition law and integration law - should serve as a model also for worldwide integration law. The modern universal recognition of human rights as part of general international law implies that human rights have become part of the “context” for interpreting the law of worldwide organizations and must be taken into account in all rule-making and policy-making processes at national and international levels. Just as the human rights guarantees and competition safeguards of the EC Treaty have reinforced the legitimacy and effectiveness of EC law and of protection of human rights throughout Europe, also UN human rights law and WTO rules offer mutually beneficial synergies for rendering human rights and the social functions and democratic legitimacy of the emerging global integration law more effective.
3 Constitutional Primacy of the Inalienable Core of Human Rights in International Law?
National and international human rights law rests on “recognition of the inherent dignity and
of the equal and inalienable human rights of all members of the human family (as) the foundation of freedom, justice and peace in the world” (Preamble of the UDHR). Human dignity (e.g. in the sense of respect for the moral and rational autonomy of each individual to distinguish between good and bad and decide on one’s personal goals in life) has become the common value premise of national and international human rights law.
A Human Rights as Part of General International Law
There exist today more than hundred multilateral and bilateral international treaties on
the protection of human rights. In the UN Charter, the Universal Declaration of Human Rights (UDHR), the 1993 Vienna Declaration on Human Rights, as well as in numerous other UN instruments, all 189 UN member states have also committed themselves to inalienable human rights as part of general international law. In addition, most states recognize human rights in their respective national constitutional laws as constitutional restraints on government powers, sometimes with explicit references to human rights as legal restraints also on the collective exercise of government powers in international organizations (see e.g. Article 23 of the German Basic Law and Article 11 EU Treaty). Human rights have thus become part also of the general principles of law recognized by civilized nations (Article 38 of the Statute of the International Court of Justice). As a result, international law is increasingly confronted with the “constitutional problems” addressed in the human rights jurisprudence of the EC Court of Justice: What is the essential core of human rights which must be recognized today as erga omnes obligations and ius cogens? Can governments evade their human rights obligations by exercising government powers collectively in specialized international organizations? How can the legal supremacy of international law over national law remain effective and be judicially enforced if human rights are not effectively protected in all fields of international law? Can international courts ignore the worldwide experience in all states that protection of human rights risks to remain ineffective without respect for complementary due process guarantees and other “constitutional principles” of rule of law, democratic government and judicial review? How to interpret and, in case of conflict, reconcile “state sovereignty”, “popular sovereignty” and “individual sovereignty” in a manner respecting the constitutional primacy of human rights?30
General international law (as codified in Article 31:3 of the 1969 Vienna Convention on the Law of Treaties) requires interpreting international treaties “in their context”, including “any relevant rules of international law applicable in the relations between the parties” such as universal human rights. Even though the law of e.g. the WTO does not explicitly refer to human rights, Article 3 of the WTO Dispute Settlement Understanding (DSU) requires “to clarify the existing provision of those agreements in accordance with customary rules of interpretation of public international law”. Universally recognized human rights are today part of the “context” for the interpretation of the law of worldwide organizations. They may be important for interpreting not only “general exceptions” (e.g. in GATT Article XX), but also basic guarantees of freedom (e.g. in GATT Articles II-XI), non-discrimination, property rights, individual access to courts, and the “necessity” requirements for safeguard measures to protect “public interests” and human rights.
B Has the “Inalienable Core” of Universally Recognized Human Rights Become Ius Cogens?
Human rights define legal principles, rights and corresponding obligations for individual and democratic self-development and are today universally recognized by all UN member states as inalienable “birth rights” of every human being which precede and constitutionally limit government powers. Human rights need to be legally concretized, mutually balanced and implemented by democratic legislation which tends to vary from country to country. Their inalienable core, however, is “acknowledged” rather than “granted” by governments, as recognized in national as well as international legal practice: ”Human dignity is inviolable. It must be respected and protected” (Article 1 of the Charter of Fundamental Rights of the European Union). “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world” which “shall bind the legislature, the executive and the judiciary as directly applicable law” (Article 1 German Basic Law of 1949). In UN practice, the “right to development” and the corresponding government obligations are defined in terms of the realization of all human rights.
The International Court of Justice (ICJ) has recognized that human rights constitute not only individual rights but also, in case of universally recognized human rights, erga omnes obligations of governments based on treaty law and general international law.31 The universal ratification of human rights treaties (such as the UN Convention on the Rights of the Child ratified by 191 states), and the universal recognition in these treaties “of the equal and inalienable rights of all members of the human family”as set out in the UDHR32, reflects a worldwide opinio iuris on the inalienable erga omnes character of core human rights. This opinio iuris on essential and inalienable core human rights is not contradicted by the diversity of views on the precise scope, meaning and ius cogens nature of many specific human rights whose legal implementation may differ from country to country and from treaty to treaty. In contrast to the EC Court of Justice which construed the common human rights guarantees of EC member states as constituting general constitutional principles limiting the regulatory powers also of the EC33, the ICJ has not yet specified to what extent human rights entail constitutional limits also on the UN and its Specialized Agencies. Likewise, the WTO jurisprudence has not yet clarified the impact of human rights (e.g. to human health and food) on the interpretation of e.g. the intellectual property rights guaranteed in the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS), or on the numerous WTO exceptions protecting national policy autonomy for non-trade concerns.
International legal practice confirms an increasing opinio iuris that membership in the UN and in the ILO entails legal obligations to respect core human rights.34 Dictatorial governments can no longer freely “contract out” of their human rights obligations by withdrawing from UN human rights covenants or ILO conventions.35 Legal practice suggests that not only the prohibitions of genocide, slavery and apartheid, but also other core human rights must be respected even “in time of public emergency” (cf. Article 4 of the ICCPHR, Article 15 ECHR) and, since the end of the cold war, have become erga omnes obligations of a ius cogens nature.36
C Constitutional Primacy of Human Rights in European Law
European integration law recognizes the legal primacy and constitutional functions of human rights in various ways. It was essentially due to the human rights jurisprudence of national courts in EC member states that the EC Court acknowledged, since the Stauder case (1969), that not only EC member states but also the EC itself must respect human rights in all EC policy areas: “respect for human rights is a condition of the lawfulness of Community acts”.37 Article 6 of the Treaty on European Union (EU) now explicitly confirms that the “Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.” Breaches of these principles can entail sanctions (Article 7) and prevent admission to the EU (Article 49 EU Treaty).
The constitutional objective of the “common foreign and security policy” of the European Union – namely “to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms” (Article 11 EU Treaty) – reflects the insight that human rights apply to the exercise of all government powers, as already stated in the French Declaration of the Rights of Man and the Citizen of 1789: “The final end of every political institution is the preservation of the natural and imprescriptible rights of man. Those rights are liberty, property, security, and resistance to oppression.”38 Most policy objectives of specialized agencies (such as monetary stability, trade liberalization, health protection) can be understood as protecting liberty, property, non-discrimination and other human rights across frontiers.39 Arguably, the universal recognition, in both national and international law, of the inalienable character of the essential core of human rights implies recognition of the legal primacy of their inalienable core vis-à-vis governmental and intergovernmental limitations that are arbitrary or “unnecessary” for protecting other human rights. The explicit necessity requirements for limitations on freedom and on other human rights – to be found not only in national constitutions and human rights treaties but also in the safeguard clauses of worldwide and regional trade agreements (such as GATT Article XX) – must be construed in conformity with this constitutional primacy of the inalienable core of human rights.
D Can “Specialized Organizations” Exclude Human Rights from their Field of Specialization?
Like the negotiators of the EC Treaty in 1956/57, government representatives in specialized international organizations sometimes appear to believe that governments remain “sovereign” to exclude human rights from the law of specialized agencies and from the “covered agreements” of WTO law. Yet, the lex posterior and lex specialis rules for the relationships between successive international treaties (as laid down in Articles 30,41 and 58 of the 1969 Vienna Convention on the Law of Treaties) cannot derogate from the inalienable ius cogens nature of the obligation of all national and international governments to respect the essential core of human rights (cf. Article 53 of the Vienna Convention). UN human rights law explicitly recognizes (e.g. in Article 28 of the UDHR quoted at the beginning of this article) that human rights entail obligations also for intergovernmental organizations. From a human rights perspective, all national and international rules, including economic liberalization agreements like the IMF and WTO agreements, derive their democratic legitimacy from protecting human dignity and inalienable human rights which today constitutionally restrain all national and international rule-making powers.
The generously drafted “exceptions” in global and regional integration law, and the usually deferential jurisprudence of international courts (e.g. WTO dispute settlement bodies) vis-à-vis national restrictions necessary for protecting public interests40, confirm that, in cases of conflict, the essential core of human rights must prevail. As in EC law, the obligations of states to respect, promote and fulfill human rights must be recognized as extending also to their participation in worldwide organizations like the Bretton Woods institutions and the WTO. Neither the “progressive realization” commitment in Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)41, nor the proviso in its Article 24 that “(n)othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies”, can serve as pretexts for non-compliance by unwilling governments and organizations with their human rights obligations.
4 Human Rights as Constitutional Restraints on the Law and Powers of
The “paradox of liberty”, i.e. that real freedom and legal constraints condition each other,
applies to both national as well as international law. Article 28 of the UDHR – according to which “(e)veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” – reflects the insight that protection and promotion of human rights are often no less dependent on intergovernmental rules and policies (e.g. on collective security, international division of labor, prevention of terrorism) than on national implementing measures. Article 24 of the ICESCR confirms implicitly that human rights entail obligations not only for states but also for their collective exercise of government powers in international organizations.
If human rights require international law and international institutions to be so structured as to promote and protect human rights across frontiers: How can human rights be rendered more effective in the law of worldwide organizations? The various UN Declarations on the “Right to Development” call upon international organizations to incorporate human rights into their policies and to promote participation of individuals and civil society organizations in the work of international organizations.42 Yet, in intergovernmental organizations (like the UN) and “producer-driven” organizations (like the WTO and ILO), “top-down reforms” for strengthening human rights and democratic rule-making procedures remain slow because many diplomats and influential industries (including their worker representatives in the ILO) prefer to avoid limiting their powers and privileges in specialized agencies and benefit from continuing the classical international law approach of treating citizens as mere objects of international law that should be kept out of intergovernmental organizations.43 Also many lawyers, economists, political scientists and ordinary citizens doubt whether the universal recognition of human rights requires the EC and worldwide organizations to evolve into human rights organizations and to supplement the international human rights guarantees by “international constitutional law”.44 Especially in the US with its long-standing reluctance to submit itself to international human rights law and its traditional focus on civil and political rather than economic and social human rights, convincing citizens, governments and courts of the need for economic and social human rights remains a political challenge which appears unlikely to be met by governments, business and courts in the US.45
History suggests that democratic participation in the exercise of government powers rarely comes about “top-down” without prior “bottom-up pressures” and “glorious revolutions” by citizens, parliaments and courageous judges defending human rights vis-à-vis abuses of government powers and fighting for democratic reforms of authoritarian government structures. The postwar Bretton-Woods Agreements and the UN Charter presented such hard-fought-for “revolutions” in international law designed at extending freedom, non-discrimination, rule of law and social welfare across frontiers, even though diplomats carefully avoided the politically charged language of “international constitutional law” (e.g. in contrast to the “Constitution of the ILO” of 1919).
A. Human Rights and the “Constitutional Functions” of International Guarantees of Freedom, Non-discrimination and Rule of Law
All human rights need to be made effective and mutually balanced through national and international rule-making and rule-implementation. Reciprocal international guarantees of freedom, non-discrimination, rule of law, transparent policy-making, social safeguard measures and wealth-creation through a mutually beneficial division of labor – such as those in the 1944 Bretton-Woods Agreements, the ILO Constitution, GATT 1947 and the 1994 WTO Agreement – aim at extending basic human rights values across frontiers. In this respect, they can be understood as serving “constitutional functions” for the legal protection of human rights values at home and abroad.46 Of course, "not all international rules serve constitutional functions", and the lack of adequate constitutional safeguards in the law of international organizations facilitates "intergovernmental collusion" endangering democratic governance and human rights.47 For example, the general exceptions and safeguard clauses in the WTO Agreement leave each government broad discretion as to how economic freedoms should be reconciled with other human rights subject to “necessity” and non-discrimination requirements (e.g. in GATT Article XX, GATS Article XIV, Article 8 of the TRIPS Agreement) that are similar to those in human rights law. Yet, the move from "negative integration" in GATT 1947 to "positive integration" in the WTO may endanger protection of human rights and democratic governance in areas such as health protection and intellectual property law48
The focus of GATT/WTO law is neither on de-regulation nor on distributive justice, but on optimal trade regulation through welfare-increasing non-discriminatory internal regulation (rather than welfare-reducing discriminatory border restrictions or export subsidies). GATT and WTO jurisprudence has so far hardly ever challenged the sovereign right of GATT and WTO member states to protect the human rights of their citizens through non-discriminatory internal or international social rules (e.g. ILO-conventions, human rights treaties, environmental agreements) if procedural due-process requirements had been met (e.g. for risk-assessment procedures prior to the application of sanitary measures, consultations with exporting countries that were adversely affected by environmental regulations unilaterally adopted in importing countries).49 Should WTO law follow the example of EU law and integrate human rights and social rules more explicitly into WTO law and jurisprudence? Or should human rights and international income redistribution be left to other “specialized agencies” like the various UN human rights bodies, the World Bank and the ILO? Is interpretation of WTO law in conformity with human rights, as required by general international law, sufficient for ensuring coherence between human rights and trade law?
B. Human Rights Require International Constitutional Law
Since the Greek republics in the 5 century BC, constitutionalism has emerged in a process of "trial and error" as the most important "political invention" for protecting equal liberties against abuses of power. The continuing evolution of national and international constitutionalism can be defined by six interrelated core principles which are recognized in the constitutional laws of most democracies: (1) rule of law; (2) limitation and separation of government powers by checks and balances; (3) democratic self-government; (4) human rights; (5) social justice; and (6) the worldwide historical experience that protection of human rights and "democratic peace" cannot remain effective without international law providing for reciprocal international legal restraints on abuses of foreign policy powers.th
The legal concretization of these core principles in national constitutions (e.g. in national
catalogues of human rights), and increasingly also in international "treaty constitutions" (such as the EC Treaty and the ILO Constitution), and their mutual balancing through democratic legislation, legitimately differ from country to country, from organization to organization, and from policy area to policy area. There are also valid "realist" reasons why "democratic peace" may be possible only among constitutional democracies, and power politics may remain necessary to contain aggression from non-democracies where human rights are not effectively protected.50 Yet, are there convincing arguments why “constitutionalization” of international law and international organizations may be “a step too far"?51 Are "international constitutional law" and "cosmopolitan integration law", as explained by Kant and confirmed by European integration law, indispensable for limiting abuses of foreign policy powers and protecting equal human rights and democratic peace across frontiers?
The universal recognition of human rights, and the adoption by almost all states of national constitutions and international treaties committed to the promotion of human rights, reflect the worldwide experience that human rights cannot remain effective without constitutional safeguards, democratic legislation and international law protecting freedom and rule of law across frontiers through legal restraints on abuses of power. History and constitutional theory confirm that liberty, democracy, market competition and social justice are not gifts of nature but “constitutional tasks”.52 Rule of law may be possible in a dictatorship. Effective protection of equal human rights, however, is logically and practically inconceivable without rule of law, limitation and separation of government powers, democratic self-government, social market economies identifying and satisfying consumer demand, and respect for international law.53 Since the basic function of democratic constitutions is to protect the “rights retained by the people” (Ninth Amendment of the US Constitution) against abuses of all government powers, and most foreign policies become effective by taxing and restricting domestic citizens, constitutional restraints on foreign policy powers are no less necessary for the protection of human rights than restraints on domestic policy powers.
How then can the “Lockean dilemma” be overcome that most national constitutions grant governments broad discretionary foreign policy powers which can easily undermine domestic constitutional restraints (e.g. by redistributing income among domestic citizens through “voluntary” trade restrictions)? Most countries have learnt through experience that unilateral national constitutional restraints on foreign policy powers cannot effectively deal with the “Janus face problem” of foreign policies, e.g. the fact that foreign policy discretion to discriminate among 200 sovereign states offers governments more than 200 possibilities for discriminating among domestic citizens trading with foreign countries and for taxing and redistributing income of domestic citizens through trade restrictions. Due to the relational nature of most foreign policy goals (such as “democratic peace” among democracies, freedom of trade between exporting and importing countries, exchange rate stability between different currencies), foreign poliy abuses can be legally limited most effectively through reciprocal international law rules. Such rules tend to offer also more precise substantive and procedural “benchmarks” for parliamentary, judicial and intergovernmental review of foreign policy measures than the usually vague national constitutional rules for foreign policy-making. As noted above, reciprocal international guarantees of freedom, non-discrimination and rule of law can also serve “constitutional functions” for protecting and extending human rights values across frontiers and for “constitutionalizing”54 discretionary foreign policy powers on the basis of “higher” international law and its enforcement through national and international courts and stricter parliamentary and democratic control.