Jean Monnet Center at NYU School of Law


8. Can a "United Nations Action Program" Succeed in Integrating Human Rights into the Law of Worldwide Organizations?

The incorporation of human rights into European integration law reflects effective protection of human rights in both the national and European economy and polity of EU member countries. UN human rights law, by contrast, has not succeeded so far to protect human rights effectively in the national and increasingly globalized economy and governance systems of all UN member states. Initiatives for integrating human rights into the law of worldwide organization are unlikely to come from specialized economic organizations like the WTO. More than 50 years after the Universal Declaration on Human Rights, it is time for a comprehensive UN program for integrating human rights in a coherent manner into the law of worldwide organizations so as to "constitutionalize" the world economy and global governance. Are the powers of the UN (e.g. under Articles 62-64 of the UN Charter) sufficient for bringing about the needed "human rights revolution"?

In contrast to the anti-market bias of earlier UN recommendations for a "New International Economic Order"117, the recent UN Secretary-General's report on "Globalization and its impact on the full enjoyment of all human rights"118 is characterized by a balanced attempt at reconciling human rights, market competition and globalization. It emphasizes, inter alia,

The UN High Commissioner for Human Rights, whose mandate includes coordination of all UN human rights activities and improving their effectiveness, has likewise called for a rights-based and rules-based approch to development making the world economy and international economic institutions part of a human rights culture.120 The "Global Compact" launched by UN Secretary-General Kofi Annan in 1999 for greater business support for human rights, core labor standards and protection of the environment offers important complementary strategies for bringing the benefits of globalization and of human rights to more people worldwide. Also non-economic NGOs are increasingly involved in preparing "bottom-up reforms" of the state-centered UN system.121

A "Global Compact" committing all worldwide organizations to respect for human rights, rule of law, democracy and "good governance"122 in their collective exercise of government powers would promote the overall coherence and democratic legitimacy of the UN system and create new incentives for rendering human rights more effective. Just as "European citizenship" has reinforced and enlarged civil, political, economic, social and cultural rights of EU citizens, "UN citizenship" and "good corporate citizenship" should become new legal titles for individuals and stakeholder groups for democratic participation in the UN governance systems and for greater responsiveness of the UN legal system to the needs and human rights of all people.123 The "global compact" should include commitments of all international organizations to integrate human rights into their respective laws and practices and to submit annual "human rights impact statements" examining and explaining their contribution to the protection and enjoyment of human rights. Such a human rights policy could help to overcome also the widespread distrust by civil society groups vis-à-vis non-transparent rule-making in "specialized organizations". It could also assist national parliaments in exercising more effective democratic control over "multi-level governance" in international organizations.

Just as proposals for integrating human rights into European integration law were not initiated by trade politicians, it seems unrealistic to expect such initiatives from specialized worldwide economic organizations or from national trade, finance and economic ministries. In the Uruguay Round of multilateral trade negotiations, for instance, trade diplomats preferred negotiating international rules behind closed doors unobstructed by close parliamentary and democratic scrutiny; and industries lobbied one-sidedly for incorporating into the WTO "positive integration law" focusing on intellectual property rights beneficial for industries without references to social human rights. In contrast to the comprehensive obligations and forceful dispute settlement and enforcement systems of WTO law, the small WTO Secretariat and consensus-based WTO decision-making procedures remain politically weak. Obstruction by a few self-interested politicians or by non-democratic governments is often enough to prevent international organizations from referring to human rights.

As in other fields of human rights law, initiatives for protecting human rights more effectively in the economy will depend on democratic vigilance and bottom-up pressures by courageous citizens and judges defending human rights. The universal recognition of human rights promotes a progressive empowerment of individuals and of non-governmental organizations (NGOs) to insist on democratic reforms of the state-centered system of international law and international organizations. The 1966 Optional Protocol to the UN Covenant on Civil and Political Rights provides for a direct complaints procedure for individuals claiming to be victims of human rights violations. The preparations of a corresponding Optional Protocol for the International Covenant on Economic, Social and Cultural Rights (ICESCR) reflect the need, as well as the difficulties, to strengthen direct remedies for individuals in the monitoring and enforcement mechanisms of economic and social human rights.124 Are non-binding UN resolutions unsuitable means for strengthening the obligation of states to protect human rights in the trade and economic policy area, including state responsibility "to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights"?125

For a globally interdependent but highly decentralized world composed of about two hundred states and several hundred intergovernmental organizations, the primacy of the UN Charter (cf. Article 103) and of UN human rights law offers a constitutional framework for the overall coherence of the policies of governments, "specialized agencies", and of the billions of producers and consumers in the global economy. While the International Labor Organization, the World Bank and the World Intellectual Property Organization have increasingly integrated human rights and individual complaints procedures into their law and practices126, government representatives in other worldwide organizations (like the International Monetary Fund and the WTO) remain reluctant to admit that also the collective exercise of their powers (e.g. in the monetary and trade policy areas) is limited by human rights and must serve the interests and democratic rights of all affected citizens. Explicit recognition of the "human rights functions" of WTO rules, even if contained only in a political declaration by WTO member states, would help to refute the claim by anti-globalization activists that "human rights offer a principle on which to base opposition to the challenges posed by economic globalization" and by WTO law.127 Yet, without additional political initiatives by the UN Secretary-General, UN human rights bodies, domestic parliaments and other civil society representatives, the needed integration of human rights into the law of all worldwide organizations risks to make little progress.

As long as UN human rights law does not provide for effective judicial remedies at the international level, there is no reason why specialized international courts should be less capable than politicized UN bodies to protect human rights in the interpretation and application of global integration law. For example, just as the EC Court of Justice, more than thirty years ago, responded to the invocation of human rights in national courts by confirming that "fundamental human rights (are) enshrined in the general principles of Community law and protected by the Court"128, WTO dispute settlement panels and WTO Appellate Body judges should acknowledge that universally recognized human rights have become part of general international law which WTO judges have to take into account in their interpretation and application of WTO rules.

117 See e.g. E.U.Petersmann, Charter of Economic Rights and Duties of States, in: Bernhardt (ed.), Encyclopedia of Public International Law Vol.1, at 561-566.

118 UN documents A/55/342 of 31 August 2000 and A/56/254 of 31 July 2001.

119 The recent WTO report on Trade, Income Disparity and Poverty (by Ben-David and Winters, Special Studies No.5, WTO 1999) offers empirical evidence that trade contributes to economic growth and promotes alleviation of poverty provided trade liberalization is complemented by appropriate domestic policies (e.g. for education, health and consumer protection) that have much larger effects on poverty alleviation than trade policy.

120 See e.g. M. Robinson (above note 93), 209-222.

121 Cf. the UN Secretary-General's Millenium Report on "We the Peoples", UN 2000, and the Progress Report by the UN High Commissioner for Human Rights on "Business and Human Rights", UNHCHR 2001.

122 Several international organizations have committed themselves to principles of "good governance" without clarifying the relationship between this vague political principle and human rights, cf. e.g.: Governance and Human Rights, World Bank 1995; Participatory Development and Good Governance, OECD 1995.

123 Introducing "UN citizenship" as a human rights concept would, however, require far-reaching democratic reforms of the UN legal system which appear hardly feasible through amendments of the UN Charter pursuant to its Articles 108 or 109, cf. E.U.Petersmann, How to Constitutionalize the United Nations? Lessons from the "International Economic Law Revolution", in: V.Götz/P.Selmer/R.Wolfrum (eds.), Liber Amicorum G. Jaenicke, 1998, 313-352.

124 The ICESCR entered into force in 1976 and has today been ratified or acceded to by 144 states. A draft optional protocol to the ICESCR providing for a right of individuals or groups to submit communications concerning non-compliance with the covenant was elaborated by the UN Committee on Economic, Social and Cultural Rights and submitted to the UN Commission on Human Rights in 1996, but has not yet been approved by member states (cf. the Report of the High Commissioner for Human Rights in E/CN.4/2000/49 of 14 January 2000).

125 Quotation from the 1997 "Maastricht Guidelines on Violation of Economic, Social and Cultural Rights, section 18, which continues to define state responsibility under current international law in the following terms: "States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors" (see: Mehra, note 18, at 251-260).

126 See e.g. IBRD, Development and Human Rights: The Role of the World Bank, 1998; Human Development Report 2000, UNDP 2000; Intellectual Property and Human Rights, WIPO 1999. The IMF guidelines (see e.g. Good Governance: The IMF's Role, 1997) and WTO reports do not explicitly refer to "human rights".

127 For a too one-sided critique of the WTO and of "dehumanising effects of globalisation" see e.g. M.Kothari, Globalisation, Social Action and Human Rights, in: Mehra (note 18), at 46.

128 Case 29/69. Stauder, ECR 1969. 419, para.7.




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