Jean Monnet Center at NYU School of Law


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":

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 21st 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.4 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 20015 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.6 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".7 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.

1 See e.g. J.Rawls, A Theory of Justice, revised edition 1999, Chapter II, whose conception of "justice as fairness" for defining the basic rights and liberties of free and equal citizens in a constitutional democracy gives priority to maximum equal liberty as "first principle of justice". Rawls' "principle of fair equality of opportunity" and his "difference principle" are recognized only as secondary principles necessary for socially just conditions essential for moral and rational self-development of every person. Kantian legal theory also gives priority to a legal duty of states to ensure conditions of maximum law-governed freedom over moral "duties of benevolence" to provide for the needs of the citizens (cf. A.D.Rosen, Kant's Theory of Justice, 1993, at 217; P.Guyer, Kant on Freedom, Law and Happiness, 2000, at 264 et seq.).

2 For instance, the Bill of Rights, which had to be appended to the US Constitution in order to secure its ratification, focuses more on "inalienable rights" to life and liberty than on social rights to secure "the general Welfare" (recognized as an objective of the US Constitution in its Preamble).

3 On legal philosophies concerning moral and legal duties of assistance vis-à-vis "burdened societies", the "principle of just savings", a "property-owning democracy" promoting widespread ownership of economic and human capital, and on "distributive justice among peoples" see e.g.: J.Rawls, The Law of Peoples, 1999, chapters 15 and 16. Human rights law still lacks a coherent theory on transnational economic and social human rights (e.g. to food and health protection) vis-à-vis foreign governments and international organizations. On human rights and "global justice" see: R.A.Falk, Human Rights Horizons. The Pursuit of Justice in a Globalizing World, 2000.

4 The quotation is from Article 9 of the Cotonou Agreemment signed in June 2000 by the EU, the 15 EU member states and 77 ACP countries. On human rights in the external relations law of the EU see e.g. the contributions by Clapham, Simma, Aschenbrenner and Schulte to: P.Alston/M.Bustelo/J.Heenan (eds.), The EU and Human Rights, 1999.

5 See International Herald Tribune of 13 September 2001, at 3. See more generally e.g. D.P.Forsythe (ed.), Human Rights and Comparative Foreign Policy, 2000; idem, Human Rights in International Relations, 2000.

6 See e.g.: W.M.Corden, Trade Policy and Economic Welfare, 1974; W.K.Viscusi/J.M.Vernon/J.E.Harrington, Economics of Regulation and Antitrust, 2nd ed. 1997.

7 On the need for international organizations and international aid for the provision of "global public goods" see I.Kaul/I.Grunberg/M.A.Stern (eds.), Global Public Goods. International Cooperation in the 21st Century, 1999.




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