Jean Monnet Center at NYU School of Law


1. 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 conventions8, 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.9 The 183 multilateral treaties on labor and social standards adopted in the ILO suffer likewise from inadequate enforcement mechanisms.10 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.11 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.12 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.13 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 societies14, such as:

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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.15 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"16 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. 17 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.18 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"19 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 rights20 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"21 and with due regard to human rights.22 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. 23 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.

8 The African Charter on Human and Peoples' Rights, in force since October 1986 and now ratified by all 53 member states of the Organization of African Unity, does not provide for access to an African Court of human rights. The African Commission on Human and Peoples Rights has, however, received one inter-state and several non-state complaints. In some African countries like South Africa, constitutional protection and justiciability of economic, social and cultural human rights are well established.

9 For critical assessments of the effectiveness of worldwide human rights treaties see e.g.: P.Alston/J.Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, 2000. For a recent collection of international human rights treaties see e.g.: Human Rights in International Law, Council of Europe 2000. For the political obstacles to implementing human rights in a world of "realist" power politics see e.g. D.P.Forsythe (note 5).

10 For a recent critical assessment of the ILO supervisory and promotional systems and of other mechanisms to promote core labor standards worldwide see e.g.: International Trade and Core Labor Standards, OECD 2000, at 43 et seq. In November 2000, the ILO's Governing Body concluded that the 1998 report and recommendations of the ILO's Commission of Inquiry on forced labor in Myanmar had not been implemented and therefore "sanctions" should take effect. The ILO lacks, however, powers to ensure that economic sanctions are effectively implemented.

11 European jurisprudence (e.g. by the EC Court of Justice and the European Court on Human Rights) has long since recognized that obligations to respect, protect and fulfil economic and social human rights may be "justiciable" even if they entail not only "negative" but also "positive" obligations (e.g. to promote non-discriminatory access to education). On the particular problems of "welfare rights" (such as indeterminacy of redistributive rights, their dependence on personal responsibility), the distinction between social rights in welfare states and social human rights, and the need for constitutional safeguards against abuses of welfare institutions, see e.g. K.Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, 1999. Many civil and political human rights (like the right to vote) also imply not only "negative" but also "positive obligations" (e.g. to render the right effective through legislation and administrative procedures that involve economic costs).

12 As shown below, this follows both from UN human rights law as well as from the general international law rules on treaty interpretation (cf. Article 31 of the Vienna Convention on the Law of Treaties), notwithstanding the fact that the statutes of most UN Specialized Agencies (with the exception of the ILO, WHO and UNESCO) do not explicitly refer to human rights.

13 See: Human Development Report 2000: Human Rights and Human Development, UNDP 2000 (the quotation is from p. iii).

14 On the instrumental function of human rights for dealing with the problems of limited knowledge, conflicting interests and abuses of power see e.g.: R.E.Barnett, The Structure of Liberty. Justice and the Rule of Law, 2000.

15 See note 13 as well as: M.Olson, Power and Prosperity, 2000, explaining why "almost all of the countries that have enjoyed good economic performance across generations are countries that have stable democratic governments" (p.43), and why "individual rights are a cause of prosperity" (p.187); R.Pipes, Property and Freedom, 1999, who explains prosperity as resulting from "successful struggle for rights of which the right to property is the most fundamental" (p.291); World Development Report 2000/2001: Attacking Poverty, World Bank 2000; D.C.North, Institutions, Institutional Change and Economic Performance, 1990.

16 Cf. W.Fikentscher, Wirtschaftsrecht Vol. I, 1983, at 10.

17 On this common dilemma of market economies and democracy, and on the replacement of the rights-based common law criteria by efficiency-based economic criteria (such as absence of out-put and price restrictions) in modern US antitrust law, see: G.Amato, Antitrust and the Bounds of Power, 1997; D.Gerber, Law and Competition in Twentieth Century Europe. Protecting Prometheus, 1998. More generally on the paradoxical dependence of liberty on constitutional restraints see: J.Elster, Ulysses Unbound, 2000.

18 See e.g. M.Robinson, Constructing an International Financial, Trade and Development Architecture: The Human Rights Dimension, in: M.Mehra (ed.), Human Rights and Economic Globalisation: Directions for the WTO, 1999, at 187: "if we hope to see human rights flourishing, it will only be in the context of an equitable and sustainable economic order".

19 See e.g.: H.H.Koh/R.C.Slye (eds.), Deliberative Democracy and Human Rights, 1999.

20 See e.g. Case 240/83, ADBHU, ECR 1985 531, para.9: "the principles of free movement of goods and freedom of competition, together with freedom of trade as a fundamental right, are general principles of Community law of which the Court ensures observance." Especially the freedom of movements of workers and other persons, access to employment and the right of establishment have been described by the EC Court as "fundamental freedoms" (Case C-55/94, Gebhard, ECR `1995, I 4165, para.37) or "a fundamental right which the Treaty confers individually on each worker in the Community" (Case 22/86, Heylens, ECR 1987, 4097, para.14). The ECJ avoids "human rights language" for the "market freedoms", the right to property and the freedom to pursue a trade or business in EC law.

21 Case C-44/94, The Queen v. Minister of Agriculture, ECR 1995 I-3115, para.28.

22 Cf. L.Betten/N.Grief, EU Law and Human Rights Law, 1998; P.Alston et alii (note 4).

23 Due to the constitutional limits of EC law, social rights were initially developed in EC law as a function of market integration rather than of the more recent EC Treaty guarantees of "citizenship of the Union" (Article 17) and of "fundamental social rights" (e.g. Article 136). On the need for integrating social rights into market integration law as a means for limiting social market failures (e.g. resulting from an unjust distribution of resources and purchasing power, inadequate opportunities of all market participants to express their "voice" and "exit") see e.g.: M. Poiares Maduro, Striking the Elusive Balance between Economic Freedom and Social Rights in the EU, in: Alston (note 4), at 459.




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