The Jean Monnet Program

Professor J.H.H. Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 7/01

Ernst-Ulrich Petersmann

TIME FOR INTEGRATING HUMAN RIGHTS INTO THE LAW OF WORLDWIDE ORGANIZATIONS
Lessons from European Integration Law for Global Integration Law

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The Jean Monnet Working Papers are published under the auspices of the
 Jean Monnet Program 
hosted at Harvard Law School from 1995 to 2001
and now based at New York University School of Law

ISSN 1087-2221
 Ernst-Ulrich Petersmann

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
Abstract

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 philosophers and reflected in the constitutional law of the leading postwar hegemonic power, 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”. 

	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. 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 2001 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. 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”. 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	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 conventions, 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. The 183 multilateral treaties on labor and social standards adopted in the ILO suffer likewise from inadequate enforcement mechanisms. 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. 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. 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. 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 societies, 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. 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” 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. 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” 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 rights 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” and with due regard to human rights. 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.

2	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. 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 lawyers, 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). 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. 

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.

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. 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. 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. 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. 

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?

	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. 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 UDHR, 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 EC, 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. Dictatorial governments can no longer freely “contract out” of their human rights obligations by withdrawing from UN human rights covenants or ILO conventions. 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.

	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”. 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.” 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. 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 interests, 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), 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
International Organizations

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. 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. 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”. 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.

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. 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. 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 law
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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). 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 5th 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. 

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. Yet, are there convincing arguments why “constitutionalization” of international law and international organizations may be “a step too far"? 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”. 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. 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” 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.

C.	Human Rights as Incentives for “Decentralized Ordering” and a “Self-Enforcing Constitution” Across Frontiers: The Subsidiarity Principle

The EU “principles of liberty, democracy, respect for human rights and fundamental freedoms” (Article 6 EU Treaty) are reflected also in the explicit Treaty requirements that actions by the Community shall be “in accordance with the principle of subsidiarity” and “not go beyond what is necessary to achieve the objectives of this Treaty” (Article 5 EC Treaty); decisions shall be “taken as openly as possible and as closely as possible to the citizen” (Article 1 EU Treaty). Similar to the historical experiences inside many federal states, the EC Treaty objective of an “internal market … without internal frontiers in which the free movement of goods, persons, services and capital is ensured” (Article 14) was to some extent achieved only after the empowerment of self-interested market participants to enforce access to foreign markets and freedom of competition through independent “guardians of the law” (e.g. competition authorities) and courts against governmental and private market access barriers and restraints of competition. The political EC Treaty goals “to establish progressively an area of freedom, security and justice” (Article 61 EC Treaty) and a “common foreign and security policy” are likewise linked to a “basic rights strategy”, as reflected in the Treaty commitment “to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms” inside and outside the EC (cf. Articles 6, 11 EU Treaty). 

In the context of worldwide organizations, human rights are no les important for promoting not only individual and democratic self-government and legitimacy, but also decentralized enforcement of rule of law and decentralized coordination across frontiers among billions of autonomous citizens participating in global economic as well as political markets. For example:

-	Human rights (e.g. to property, freedom of contract, freedom of information, freedom of opinion and association), and the market mechanisms resulting from the protection of human rights, not only empower individuals to act on the basis of their own personal knowledge and to acquire and take into account the personal and local knowledge of others of which each person is inevitably ignorant. Such decentralized ordering of the actions of diverse persons with limited knowledge reduces also the need for centralized government regulation of conflicting preferences (e.g. by imposing the majorities’ preferences on minorities) which might unnecessarily limit individual freedom and disrupt decentralized ordering.
-	Human rights enable decentralized solutions also for the “value problem” that human views about “truth” may differ, and value judgments about “the good” and “the beautiful” are not necessarily true. Economic as well as political markets are decentralized means for evaluating scarce resources (e.g. private and public goods and services) in a manner respecting individual freedom (e.g. of supply and demand of private goods, political votes on the collective protection of social rights) and promoting “dialogues about values” and allocation and distribution of resources in accordance with consumer demand.
-	By requiring respect for equal human rights  and by defining core human rights as “inalienable”, human rights constrain, delimit and coordinate individual freedom and other human rights, promote individual responsibility (e.g. to use resources efficiently and not to harm others), and require substantive and procedural justification of governmental restraints of human rights. Human rights require transparent government (e.g. publication of laws) and “deliberative democracy”, and inform and educate people on how they can realize individual and democratic self-government and mutually beneficial cooperation across frontiers while avoiding conflicts with the independent actions of others. 
-	Human rights justify not only individual claims and individual access to courts for the settlement of  “cases and controversies” between persons who are directly affected by a dispute. They also require to submit evidence, legal reasoning and claims in terms of rights and “justice” to judges in the context of judicial procedures subject to multiple safeguards (e.g. appellate review, democratic criticism, correction by legislation). Through an evolutionary common law process of adjudication and progressive national and international codification, human rights thereby promote an ever more precise definition, delimitation and evolution of civil, political, economic, social and cultural human rights across frontiers. The legal priority and judicial clarification of human rights promote continuous review and adjustment of law and “justice” to new situations like global integration.
-	Liberty rights, property rights and other human rights also set incentives for savings and investments (e.g. by requiring restitution or compensation in case of  takings of property rights), for reconciling conflicts among self-interested individuals (e.g. by requiring consent to rights transfers), and for decentralized “checks and balances” promoting rule of law (e.g. due to the right of self-defence by adversely affected right-holders).

D.	Human Rights, Common Market Rules, Competition and Trade Rules: How to Construe Liberty Rights and their “Indivisibility”?

Human rights historically evolved in particular civil, political, economic and social contexts before the modern recognition that “all human rights are universal, indivisible and interdependent and interrelated.” How should human rights to liberty and equality be construed in the particular context of the law and powers of international organizations (like the EC and WTO)? European Community law, for instance, protects 

-	general “principles of liberty” (Article 6 EU Treaty) based on common constitutional traditions in EC member states; 
-	a general human “right to liberty” (Article 6) and additional specific liberty rights recognized in the Charter of Fundamental Rights of the EU (e.g. in Articles11-16); 
-	the “principle of an open market economy with free competition” (Articles 4,98,105,157); 
-	general and specific guarantees of non-discrimination (e.g. in Articles 12,13,19,23,30,39,43, 49,56,90,141 EC Treaty), some of which confer individual rights; 
-	a “system ensuring that competition in the internal market is not distorted” (Articles 3,g) based on directly applicable competiton rules (e.g. Articles 81,82); 
-	general legal principles on “a common market and an economic and monetary union” (Article 2) and on an “internal market … without internal frontiers in which the free movement of goods, persons, services and capital is ensured” (Article 14);
-	specific treaty guarantees on “free movement of persons, goods, services and capital, and the freedom of establishment”, which is also referred to in the Preamble to the Charter of Fundamental Rights of the EU. 

Community law requires to interpret these various treaty provisons in a mutually coherent manner. Just as in some member countries (like Germany) the national constitutional guarantees of freedom to pursue a trade or business are construed to protect also individual rights to import and export subject to constitutional and legislative restraints, it was only logical for the EC Court of Justice to interpret the corresponding Community guarantees of “freedom to choose an occupation” and “freedom to conduct a business” in conformity with the EC Treaty’s customs union principle and to recognize “freedom of trade as a fundamental right”. The Court likewise construes the EC’s common market rules and competition rules (e.g. Articles 81:1, 82) as individual “market freedoms” which can be directly enforced by individuals through the courts. In contrast e.g. to modern US antitrust adjudication which tends to interpret US antitrust rules almost exclusively in the light of economic efficiency criteria and consumer welfare, the interpretation by the EC Court of the EC’s common market rules and competition rules takes into account not only economic criteria but also the contribution of the “market freedoms” and competition rules to the realization of a single internal market and to the protection of individual freedom and individual access to courts. 

The comprehensive EC guarantees of individual economic liberties differ from the constitutional and legal traditions in countries (like England and the USA) where domestic courts accord higher standards of judicial review and protection to civil and political freedoms than to economic liberties in view of the fact that constitutional law and competition law have guaranteed a common market and market competition in these countries long since.  In other countries (like Germany) which  have experienced dictatorial governments colluding with cartellized industries in suppressing the economic and political liberties of their citizens, the constitutional liberties have been construed by courts as protecting maximum equal freedoms of citizens (subject to constitutional limits and democratic legislation) in economic markets no less than in political markets. EC law suggests that this comprehensive constitutional protection of liberty rights, in the economic area no less than in the political field, offers more protection for citizens in countries and international organizations (like the EC) which do not benefit from centuries-old constitutional guarantees of a common market and long-standing antitrust law protecting undistorted competition (as in the USA). This is even more true if the manifold instrumental functions of human rights (e.g. for handling the social problems of limited knowledge, decentralized coordination, mutually beneficial division of labor, conflicts of interests, abuses of power, incentives for savings and investments, decentralized enforcement of rule of law) are taken into account. From the human rights perspective of the more than 1 billion people living on less than one dollar a day, the marketplace for goods (e.g. food) and services (e.g. job opportunities, education and health services) is no less important for survival and self-development than the marketplace for politics and ideas. 

E.	Consequences of the Indivisibility of Human Rights in European Integration Law: Lessons for Global Integration Law?

The EC Treaty clearly recognizes the European historical experience that economic, political and legal freedom cannot be separated, and that abuses of private economic power (such as the collaboration of cartelized industries with dictatorial governments in Nazi-Germany) can be no less dangerous for citizens than abuses of political power. Private autonomy in law and in the economy must be protected by basic rights vis-à-vis abuses of both political as well as economic power. Thus, the EC Treaty protects “citizenship of the Union” (Article 17) by civil rights (such as the “right to move and reside freely within the territory of the Member States”, Article 18) and political rights (such as the “right to vote and to stand as a candidate at municipal elections in the Member State in which he resides”, Article 19) as well as economic rights (such as freedom of trade and competition protected by Articles 28,29,81 and 82) and social rights (such as the right to “equal pay for male and female workers for equal work or work of equal value”, Article 141). The EU Treaty and the EU Charter of Fundamental Rights likewise protect civil, political, economic and social human rights and fundamental rights. European integration confirms the potential synergies between human rights law and economic integration law: Inside Europe, it has become generally recognized that economic organizations (like the EC and the EEA) can pursue their objectives (e.g. of “an open market economy with free competition”, Article 4 EC Treaty) more effectively if they are seen by citizens and national parliaments to support and promote human rights and social justice, and if they empower self-interested citizens to particiapte in democratic rule-making and to invoke and enforce the common market rules and competition rules through courts and other decentralized law-enforcement processes (e.g. through national competiton authorities)..

Articles 302-307 of the EC Treaty explicitly require the EC to cooperate with other international organizations and to respect treaties concluded by EC member states with third countries. Article 6 of the EU Treaty consequently confirms that the “Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” Agreements concluded by the EC are not only “binding on the institutions of the Community and on Member States” (Article 300:7 EC Treaty). The EC Court has recognized long since that such international agreements, and also general international law rules binding on the EC, constitute “an integral part of the Community legal system” with legal primacy over “secondary EC law” adopted by the EC institutions. The EC Court therefore emphasizes that Community law must be construed in conformity with international law, and that all Community competencies must be exercised in compliance with the international legal obligations of the EC. Precise and unconditional international guarantees of freedom and non-discrimination (e.g. in free trade area agreements between the EC and third countries) were recognized by the EC Court to constitute individual rights whose violation by EC institutions or by member state governments may entail legal responsibilities of reparation of injury and of financial compensation of the adversely affected individuals.

	The jurisprudence of the European Court of Human Rights confirms the interrelationships between civil, political, economic and social human rights, for instance the importance of freedom of opinion, freedom of the press and property rights for economic competition. The Court’s recognition of a larger “margin of appreciation” for governmental limitations of human rights in economic competition than in the political marketplace has remained controversial. The Court has also emphasized that the human rights obligations of the more than 40 member states of the ECHR (including all 15 EU member states) apply not only to national measures but also to collective rule-making in international organizations:

“Where States establish international organizations, or mutatis mutandis international agreements, to pursue cooperation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.”

In Matthews v. UK, the European Court of Human Rights found the United Kingdom in violation of the human right to participate in free elections of the legislature even though the law which denied voting rights in Gibraltar implemented a treaty concluded among EC member states on the election of the European Parliament: “there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to ‘secure’ the rights (under the ECHR) in respect of European legislation in the same way as those rights are required to be ‘secured’ in respect of purely domestic legislation”. In conformity with its consistent interpretation of the ECHR as a “living instrument” and “constitutional charter” that needs to be construed in the light of changing circumstances, the Court also admitted a complaint against all 15 EC member states requiring the Court to find that EC member states are legally responsible for the violation of the due process guarantees of the ECHR resulting from a refusal by the EC Commission to suspend a fine imposed for infringement of EC competition rules. Should, in a similar way, contracting parties of the ECHR be held legally liable for human rights violations resulting from e.g. WTO dispute settlement rulings or from their national implementation of WTO rules?

5	Indivisibility and Justiciability of Freedom and other Human Rights	in UN Law? Towards “Global Freedom?

The 1948 Universal Declaration of Human Rights integrated civil, political, economic, 
social and cultural human rights in one single legal text. However, the numerous UN declarations on the indivisible and interrelated character of civil, political, economic, social and cultural human rights have so far not been translated into reality on the worldwide level of UN law. Even though 
the survival and personal development of billions of people depend on the international division of labor, and unnecessary poverty, food and health problems prevent billions of people from enjoying their human rights, UN human rights law and most human rights lawyers continue to focus more on  protection of civil and political rights than on economic and social human rights. The UN Covenants of 1966, for example, protect “first generation” civil and political rights more effectively than “second generation” economic, social and cultural rights. Only more recent UN human rights treaties dealing with specific problem areas – such as the 1979 Convention on the Elimination of all Forms of Discrimination of Women as well as the 1989 Convention on the Rights of the Child - have begun to return to a holistic human rights conception by granting equal importance to economic, social and cultural rights as to civil and political rights in their realm of protection. UN law still seems far away from “making the global economy work for human rights” by embedding a strong human rights culture in the worldwide division of labor.

Human rights need to be protected, mutually balanced and reconciled not only at the 
national level through democratic legislation, but also across frontiers through international treaties. National and international human rights include rights to democratic participation in the exercise of government powers and rights of access to courts. All legislative, executive, judicial and also foreign policy activities of governments must aim at promoting human rights: “Human rights and fundamental freedoms are the birthrights of all human beings; their protection and promotion is the first responsibility of Governments.” Does the collective intergovernmental rule-making in UN agencies and the WTO, often behind closed doors and without effective parliamentary control, comply with these human rights requirements of democratic rule-making maximizing human rights? Moreover, UN and European human rights law recognize that democratic limitations on human rights are subject to constitutional requirements of legality, non-discrimination, necessity and proportionality: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (Article 29 UDHR). Are the centuries-old traditions of discriminatory border restrictions against foreign goods, foreign services and foreigners justifiable in terms of human rights notwithstanding their welfare-reducing effects? 

The exercise of all human rights depends on resources (such as food, information, health 
and educational services). Open borders enable domestic consumers to enjoy more, better and a larger variety of goods and services at lower prices than in the domestic markets, without preventing governments from applying “optimal policy instruments” for correcting “market failures” and supplying “public goods”. Since legislative, administrative and judicial protection of human rights is costly and liberal trade increases national income and consumer welfare, it is not surprising that  constitutional democracies tend to have open economies, whereas non-democracies often close not only their “political markets” but also their economic markets. The manifold interrelationships between decentralized, democratic coordination among autonomous citizens in “political markets” and decentralized, rights-based coordination in “economic markets” continue to be unduly neglected by the one-sided disregard of UN human rights law for the constitutional preconditions for the proper functioning of national and international economic markets as “engines” for creating and supplying economic resources needed for enjoyment and effective protection of human rights.

The new human rights challenges resulting from the modern globalization of communications, markets and governance structures illustrate the significance of a dynamic conception of liberty, as it is reflected in the Ninth Amendment of the US Constitution: “the enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people”. Constitutions and human rights instruments are historical and political documents which, even though the text may focus on particular problems at a particular time (e.g. “civil” and “political liberty” rather than “economic liberty”), should be construed as protecting individuals against all arbitrary coercion. It is no coincidence in this respect that modern constitutions of European countries with historical experiences of dictatorship (notably in Germany) protect individual freedom of personal development in the Kantian sense of maximum equal liberty across frontiers, and grant corresponding rights of access to courts and judicial review of whether legislative or administrative restraints of indvidual freedom are “unnecessary”, disproprotionate or otherwise arbitrary. Nor is it a coincidence that almost all European countries, following their negative experiences with widespread cartelization and abuses of economic power during the first half of the 20th century, have adopted national and international competition rules since the 1950s prohibiting abuses of private and public economic power and granting citizens judicially enforceable rights against restraints of competition and abuses of “market power”. By protecting new “transnational fundamental rights” which had previously not been recognized in national constitutions of EC member states, EC constitutional law has extended human rights across frontiers based on a dynamic conception of freedom and fundamental citizen rights.

	UN law emphasizes the “indivisibility” of civil, political, economic, social and cultural human rights and the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. Yet, the practice of UN specialized agencies and of the WTO is still far away from understanding and regulating economic issues as human rights issues. For example, protection of private property is not mentioned in the UN human rights covenants even though private property rights are indispensable not only for economic welfare (e.g. as legal incentives assigning responsibility for maintaining an asset, for bearing the loss for not doing so, for enabling transfers of resources and an exchange economy) but also for political freedom and the rule of law.

	In the jurisprudence of the EC Court of Justice and the European Court of Human Rights, economic and social rights have been recognized long since as legal and “justiciable” rights to be protected by national and international courts. The entry into force in 1999 of the 1995 Protocol providing for collective complaints under the European Social Charter of 1961 confirms the increasing recognition of legal and judicial remedies for the protection also of social rights. The UN Committee on Economic, Social and Cultural Rights has consistently argued that all ICESCR rights constitute individual rights, and possibilities for collective rights guarantees, and corresponding state obligations to respect, protect and fulfil the rights of individuals and groups. Yet, human rights are not yet effectively integrated into the law and policies of most worldwide organizations.

6	Protection of Human Rights in Economic Integration Helps Citizens to Acquire the Resources Necessary for the Enjoyment of Human Rights

Economists tend to define economic development in quantitative terms (e.g. increase in GNP and national income). The contribution of human rights to the correction of market failures (such as inadequate “voice” and “exit” opportunities in markets, “external effects”, socially “unjust” distribution of income), to the reduction of transaction costs, the promotion of market competition (e.g. through freedom of association and mobility of persons), and to the protection of  “substantive freedom” of consumers and of the poor have been rarely examined by economists. While the contribution of law to economic welfare has been emphasized since Adam Smith’s Inquiry into the Nature and Causes of the Wealth of Nations (1776), the various economic theories on “law and economics”, “institutional economics” and “constitutional economics” have not systematically analyzed the contribution of human rights to economic welfare. Only recently have economists suggested to define economic development in terms of real substantive freedom and “capability” of citizens to self-development. A few recent economic studies offer empirical evidence that “rights make human beings better economic actors”, and that economic underdevelopment (e.g. famines, lack of investments, inefficient capital markets) seems to be closely related to lack of effective protection of human rights,  democracy and accountability of governments.

Most lawyers likewise disregard the contribution of human rights to economic welfare. In constitutional democracies with longstanding constitutional guarantees of a common market and liberal trade (like the USA), the concept and necessity of economic and social human rights often remain controversial. Where competition is effectively protected through antitrust law (as in the USA), competition rules are often applied on the basis of economic efficiency criteria (such as absence of price and output restrictions) rather than on the basis of equal freedoms of competitors and consumers. Human rights lawyers are often averse to taking into account economics in the consideration of human rights problems, or assume that the “laws of the market” are anarchic and offer no legitimate criteria for the solution of human rights problems. 

Yet, billions of individuals have to face “scarcity of resources” as their most urgent human problem (e.g. for satisfying consumer demand for food, medicines, housing, education, health services and job opportunities) and freedom of exchange as their most important “instrumental liberty” for human survival and self-development. Since the exercise of human rights depends on scarce economic resources, human beings inevitably compete for access to and allocation of such resources. Consumer-driven market prices are the only spontaneous information, allocation and coordination mechanism respecting the freedom and divergent preferences of investors, producers, traders and consumers. Division of labor, based on private property rights and equal freedoms (e.g. freedom of contract to transfer property rights), has proven to be an indispensable complement of human rights, necessary for promoting savings and investments, productive uses of scarce resources, satisfaction of consumer demand,  and inducing citizens to increase the supply of goods, services and income for the enjoyment of human rights. 

Economic history confirms the central insight of Adam Smith’s Inquiry into the Nature and Causes of the Wealth of Nations (1776) that economic welfare is essentially a function of legal guarantees for economic liberty, property rights, legal security and open markets as decentralized incentives for savings, investments and division of labor. Even though many less-developed countries are rich in economic, biological and human resources, their lack of legal security and inadequate protection of property rights impede investments, savings, efficient use of resources and economic development. The sad reality of unnecessary poverty and gross violations of human rights in many countries is viewed by “constitutional economics” as proof of “constitutional failures” that are due to inadequate constitutional protection of civil, political, economic and social human rights, including economic liberties, property rights, monetary and competition safeguards necessary for a mutually beneficial division of labor. 

	The 1966 UN Covenant on Economic, Social and Cultural Rights does not protect the economic freedoms, property rights, non-discriminatory conditions of competition and rule of law necessary for a welfare-increasing division of labor satisfying consumer demand through private investments and efficient supply of goods, services and job opportunities. The UN Covenant’s social rights are therefore often criticized as a one-sided attempt at redistribution without adequate attention for wealth-creation and without proper balance among rights and obligations. 

The EC’s “treaty constitution”, by contrast, protects welfare-enhancing market competition in a much more comprehensive manner in the economy no less than in the polity. Free movements of goods, services, persons, capital and related payments, non-discriminatory conditions of competition, as well as social rights are constitutionally protected in EC law as “fundamental rights”. The single European market could never have been realized without private enforcement of these economic liberties by EC citizens and without their judicial protection by national courts and by the EC Court vis-à-vis governmental and private restrictions and discrimination. EC competition law and the ever more comprehensive EC guarantees of social rights and of regional adjustment assistance are indivisible components of the EC’s “economic constitution” and “social market economy” without which political acceptance of the “acquis communautaire” by many less-developed, newly acceding European countries would not have been democratically feasible. Indivisibility of political as well as economic freedom and responsibility, constitutional safeguards against abuses of economic power no less than against abuses of political power, and social rights promoting a “social market economy” have become hallmarks of European integration law that should serve as models for worldwide integration law.

	Just as European economic integration law has become reinforced by integrating human rights, the increasing calls for “mainstreaming human rights” into worldwide economic integration law (e.g. of the WTO, IMF, ILO and World Bank) offer important synergies for strengthening both human rights law and global integration law. The indivisibility of civil, political, economic, social and cultural human rights requires more effective legal protection also of individual economic liberties as necessary precondition for personal and political liberties, stronger social rights, and a mutually welfare-increasing division of labor in which the social adjustment costs to global integration are jointly shared (e.g. through integrated IMF and World Bank assistance programs for newly acceeding WTO member countries). European integraton law offers important lessons for the necessary reforms of UN human rights law and of global integration law: The need for constitutional, legislative and judicial safeguards against freedom’s inherent tendencies of destroying itself is a constitutional task in all areas of civil, political, economic, social and cultural life.

7	Human Rights Require International Competition Rules Protecting Consumer Welfare and Freedom of Choice of Citizens
	
	Indivisibility of human rights implies that the human right to liberty must protect the 
right of each individual to self-determination and self-development in all areas of social life through 
constitutional restraints on power and corresponding liberty rights of citizens provided the equal 
human rights of all others are respected. Equal freedoms of investors, producers, traders and consumers, and their unequal resources, knowledge, capabilities and preferences, inevitably entail competiton as the only decentralized information and coordination meachnism which respects individual freedom of choice and enables individuals to overcome their inevitable ignorance in an extended divison of labor among billions of autonomous producers and consumers. Human rights must not ignore the historical experience and “ordo-liberal insight” that the proper functioning and perceived “justice” of economic markets depends on legal guarantees of  “constitutive principles“ (e.g. monetary stability, open markets, private property rights, freedom of contract, liability, respect for human rights) and “regulative principles“ (e.g. policy coherence, optimal policy instruments, necessity and proportionality of government interventions) without which “market failures“ and „government failures“ risk to distort and discredit competition. From a human rights perspective, constitutional protection of human rights in the economy is no less important for the welfare of citizens than protection of human rights and constitutional restraints on powers in the polity. 

Human rights also imply that the constitutional task of promoting non-discriminatory conditions of competition and social welfare requires not only “negative freedoms” (e.g. in the sense of absence of illegal force and unnecessary coercion). Constitutional guarantees of “positive freedoms” (in the sense of participatory and re-distributive rights), of individual responsibility (e.g. for savings and investments, injury caused to others or to oneself), undistorted competition and social justice are no less necessary for promoting equal opportunities. In order to remain politically and socially acceptable, market economies must offer fair opportunities to all (e.g. for the free development of individual capacities) and must limit, through competition law and social law, the inherent market tendencies towards self-destruction and socially unjust distribution of risks and benefits. The democratic legislation on how to balance and delimit economic freedoms (such as freedom of contract, professional and entrepreneurial freedom), property rights and social rights may legitimately differ from country to country depending on its available resources and prevailing social views. Yet, all constitutional democracies in Europe and North America recognize that neither democracies nor economies can realize their human rights objectives without institutional, procedural and substantive legal restraints on private and public power and corresponding citizen rights desigend to avoid abuses that were not consented to by citizens and reduce social welfare.

	In the pursuit of their constitutional task of defining, delimiting, promoting, protecting and reconciling equal rights and competition across frontiers in an ever more precise and more effective manner, most governments in Europe and North America have also accepted the need for international competition rules which prevent and control – e.g. through competition legislation, independent competition authorities, judicial protection of individual rights and international cooperation among antitrust authorities – “unreasonable restraints of competition” on the basis not only of equal rights, but also of economic criteria (such as prohibitons of price fixing, market-sharing and output restrictions) that offer more precise guidelines for distinguishing welfare-increasing from welfare-reducing restraints of competition. There is broad agreement among competition authorities in Europe and North America today that the direct objective of competition laws and policies should focus on economic efficiency and consumer welfare, even if their indirect long-term objectives also include protection of equal freedoms of market participants and dispersion of private and public power. Other policy objectives, like protection of small enterprises and promotion of social justice, can be pursued more effectively through other policy instruments that avoid distortions of trade and competition (e.g. tax benefits and subsidies for small enterprises). The European concept of “social market economy” clearly admits that markets do not guarantee socially just results and need to be complemented by strong social rights. For example, competition, new technologies and changing consumer demand may entail “constructive destruction” (Schumpeter) and adjustment costs that may arise through no fault of producers and require a social “safety net” in order to remain democratically acceptable and protect the human rights of vulnerable groups. 

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”, the recent UN Secretary-General’s report on “Globalization and its impact on the full enjoyment of all human rights” is characterized by a balanced attempt at reconciling human rights, market competition and globalization. It emphasizes, inter alia,

-	the worldwide opportunities of increasing the resources available for the realization of human rights through global division of labor provided market competition is accompanied by appropriate domestic policies;
-	the complementary functions of international guarantees of freedom and non-discrimination e.g. in IMF and WTO law and in human rights law;
-	the need to correct “market failures” so as to ensure that economic growth leads to greater promotion and protection of human rights;
-	the importance of human rights (such as the rights to health, food and a clean environment) for the interpretation of “public interest clauses” in the law of worldwide organizations and for the structural adjustment programs of international financial institutions;
-	the positive effects of new technologies (e.g. for education and the successful organization of civil society initiatives), but also their unequal distribution and certain negative effects (e.g. in terms of increased vulnerability of capital markets, abuses of the Internet for spread of hate speech, etc);
-	the positive contribution of human rights to a geographically more even distribution of investments and financial flows, and the adverse effects of trade protectionism on development and human rights;
-	frequent links between lack of democracy and certain negative aspects of international trade (such as illegal trafficking of drugs, diamonds and human beings).

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. 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. 

A "Global Compact" committing all worldwide organizations to respect for human rights, rule of law, democracy and "good governance" 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. 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. 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”?

	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 practices, 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. 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”, 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.

9	Need for Closer Cooperation between UN Human Rights Bodies, International Organizations, Parliaments and Non-Governmental Human Rights Groups

According to Article 18 of the UN Covenant on Economic, Social and Cultural Rights, “the 
Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities.” Human rights and their corresponding government obligations are referred to in the statutes and mandates of several international organizations, such as the human right to education to be promoted by the UN Educational, Scientific and Cultural Organization (UNESCO); the human rights to work and freedom of association to be protected by the International Labor Organization (ILO); the human right to health as the central legal objective of the World Health Organization (WHO); the human right to food as a major task of the Food and Agricultural Organization (FAO); the protection of intellectual property rights by the World Intellectual Property Organization (WIPO); and the promotion of children rights by the UN Children’s Fund (UNICEF). Article 2 of the UN Covenant on Economic, Social and Cultural Rights requires “to take steps, individually and through international assistance and cooperation … with a view to achieving progressively the full realization of the rights recognized in the present Covenant”. More comprehensive cooperative arrangements for making the legal and supervisory activities of the UN Committee on Economic, Social and Cultural Rights and the multilateral rule-making and operational assistance by specialized international organizations mutually reinforcing are indispensable for enhancing the effectiveness of complementary international and national measures for the promotion of human rights. 

	In the elaboration of its so far 14 “general comments” (e.g. on the human right to health), and during its “days of general discussion”, the UN Committee on Economic, Social and Cultural Rights cooperates already actively with specialized international organizations (such as WHO, IMF, World Bank, ILO, WIPO and also WTO) and non-governmental human rights groups. The Committee also submitted a declaration to the second ministerial conference of the WTO at Seattle in November 1999 reminding all states, and also the WTO, of their human rights obligations. Yet, many specialized worldwide organizations (such as IMF and WTO) lack special rules, procedures and institutions for protecting human rights in their specialized fields of activities. As a result, the "human rights functions” of economic policy objectives (such as monetary stability as a precondition for the protection of the value of property rights in money), and the “economic functions” of human rights (such as liberty rights and property rights as preconditions for a market economy), tend to be unduly neglected in specialized organizations. 

The objective of integrating human rights into national and international development strategies can hardly be achieved without more political support also from parliaments and non-governmental organizations for integrating human rights into the rule-making and operational activities of specialized organizations. Human rights and the corresponding state obligations further require more effective international accountability mechanisms and judicial remedies as part of human rights law and of global integration law. 
 
10	Human Rights and the Global Integration Law of the WTO

	The numerous references in WTO law to the law of other worldwide organizations (such as the UN, the IMF and the World Bank) demonstrate the obvious fact that the WTO objective of maximizing individual and social welfare through worldwide division of labor cannot be realized without other supplementary worldwide agreements, such as the IMF rules on the promotion of stable exchange rates and on liberalization of current payments and capital flows. Can WTO law - as the most important legal and institutional framework for the worldwide liberalization of welfare-reducing discriminatory barriers to the international flow of goods, services, investments and persons - realize its ambitious goals of “global freedom”, market integration, worldwide rule-making and rule of law without regard to universally recognized human rights?

The legal, political and economic arguments for interpreting WTO rules in conformity with universally recognized human rights have already been mentioned (e.g. in section 1 above). Yet, can the adjustment of WTO law to universal human rights be left to WTO judges who may be unfamiliar with human rights and the jurisprudence of human rights courts (notably those WTO panel members and Appellate Body member who are no lawyers)? How will the trade specialists in the WTO Secretariat react who have to advise and assist WTO panels in the drafting of dispute settlement reports? Will the trade diplomats in the WTO’s Dispute Settlement Body adopt panel and appellate reports suggesting “new human rights interpretations” of WTO rules? How to deal with the risk of protectionist abuses of human rights arguments for justifying trade restrictions? Since the WTO perceives itself as a “member-driven organization” where multilateral rule-making will succeed in overcoming domestic protectionist pressures only with the help of political support by powerful export industries: Will economists and industries change their declared preference for “specialized organizations” and “separation of policy instruments”? Will human rights activists and UN human rights bodies support integration of human rights into the WTO? How will other worldwide organizations (like the World Bank and the IMF) react to a new “integration paradigm” linking trade liberalization and its adjustment problems to promotion of economic and social human rights and joint financial “burden sharing” (as in European integration)?

The values underlying WTO law – such as protection of legal freedom, property rights, non-discrimination, rule of law, access to courts, economic welfare and national sovereignty to pursue non-economic policy objectives that are considered more important than liberal trade – mirror corresponding human rights principles. Even though WTO law nowhere explicitly refers to human rights, it serves manifold “human rights functions” across frontiers. Given the widespread bias among human rights lawyers vis-à-vis economics and WTO law, and the agnostic attitude of many trade specialists vis-à-vis human rights, it is an important task of academics to promote more dialogue and better understanding among these different communities of trade specialists and human rights advocates so as to render both human rights law and WTO law more effective in dealing with worldwide poverty, health and human rights problems.

A	Human Rights Functions of WTO Guarantees of Freedom, Non-Discrimination and Rule of Law

	In contrast to most human rights treaties, the WTO guarantees of freedom, non-discrimination and rule of law go far beyond national constitutional guarantees in most countries which tend to limit economic freedom to domestic citizens and, for centuries, discriminate against foreign goods, foreign services, foreign investors and foreign consumers (e.g. by permitting export cartels). By extending equal freedoms across frontiers and subjecting discretionary foreign policy powers to additional legal and judicial restraints ratified by domestic parliaments, WTO law serves “constitutional functions” for rendering human rights and constitutional restraints more effective in the trade policy area. Economic theory confirms the constitutional value of liberal trade: trade transactions are voluntarily agreed upon only if they are mutually beneficial for the seller and the buyer; and the economic gains from trade do not depend on the nationality of  traders. Political theory points to additional gains from peaceful trade cooperation, such as promotion of freedom and “positive peace”. Modern theories of justice justify the WTO objective of maximizing equal freedom across frontiers by the ethical “categorical imperative” (Kant) and by the rational self-interest of all individuals in equal freedom and mutually beneficial cooperation. In case of potentially negative implications of liberal trade (such as trade in arms and transboundary movements of environmental waste), WTO law provides for generously drafted “exceptions” which allow unilateral national safeguard measures including governmental restrictions of freedom and property rights for the benefit of other, more important human rights (e.g. limitations of intellectual property rights so as to allow “parallel imports” of medicines at socially affordable prices, cf. Articles 6 and 8 of the TRIPS Agreement).

	Constitutional theory (e.g. by Kant and Rawls) and practical experience (notably in European integration) demonstrate that national constitutions cannot effectively protect  human rights and democratic peace across frontiers without complementary international constitutional restraints on foreign policy powers and cosmopolitan guarantees of human rights vis-à-vis foreign governments. For example, just as all states guarantee freedom of trade inside their national boundaries, effective protection of the human rights of their own citizens requires to constitutionally protect also freedom to produce, trade and consume across frontiers as an indivisible part of individual liberty, as in EC law. Domestic political support for this objective can be achieved more easily through reciprocal international agreements rather than through unilateral national legislation. Yet, even though WTO rules are formulated in terms of international rights and obligations of governments, they serve human rights functions for protecting individual liberty, non-discrimination, rule of law and welfare-increasing cooperation among domestic and foreign producers, investors, traders and consumers across frontiers.

B	The Struggle for Protecting Human Rights across Frontiers: The Example of Liberty Rights as “Negative”, “Positive” and “Institutional Guarantees”

	The idea and legal recognition of “basic individual rights”, “fundamental rights” and “human rights” goes back to the beginnings of written history. Precursors include the rights to asylum granted by Greek city-states; Roman citizenship rights; rights of the nobility in the Middle Ages (e.g. in the Magna Carta 1215); religious freedom protected in the constitutional charter adopted by the Dutch provincial assembly at Dordrecht in 1572; the English Habeas Corpus Act of 1679 and Bill of Rights of 1689; the French Declaration of the Rights of Man and the Citizen of 1789; and the Bill of Rights appended to the US Constitution in 1791. The particular focus of liberty rights (e.g. freedom of religion, freedom of association, freedom to demonstrate) was often shaped by historical events (such as the schism of the Christian church from the 16th century onwards) and by political struggles against the rulers. Transnational protection of new “globalization rights” and of non-discrimination, rule of law, democratic governance and social justice across frontiers are the human rights challenges of the 21st century.

In the history of federal states (such as the US, Switzerland and Germany) and of customs 
unions (such as the German Customs Union 1834-1866, the EEC Treaty), liberty rights were progressively extended across frontiers inside the federation and inside the customs union by means of objective guarantees of freedom of trade. The elaboration of federal human rights catalogues (e.g. in US, Swiss, German and EC constitutional law) and the inclusion of guarantees of human rights and democracy into international integration law (e.g. in the EU) have been politically possible only at later stages of market integration. The judicial interpretation of liberty rights, and of the constitutional guarantee that no person shall be deprived of “liberty without due process of law” (Fifth and Fourteenth Amendments of the US Constitution), have changed over time both in Europe and North America. In modern welfare states like Germany, for example, liberty rights are no longer interpreted only as “negative freedoms” but also as “positive rights” and “institutional guarantees” which require legislation (such as competition and social rules for a “social market economy”) enabling citizens to actively use their protected freedom and preventing abuses of power. Even though "globalization of freedom" has become a new fact in many markets and communication systems, legal and human rights doctrines adjust only slowly their state-centered focus to the challenges of global integration law. 

a)	Do Human Liberty Rights Protect Individual Freedom Across Frontiers? On Freedom of Trade and “Legal Protectionism”

National and international human rights instruments – from the US Declaration of Independence of 1776 up to the Universal Declaration of Human Rights of 1948 and the Charter of Fundamental Rights of the EU adopted in December 2000 - recognize not only specific liberty rights (cf. Article 16 EU Charter: "freedom to conduct a business in accordance with Community law and national laws"), but also unalienable general human rights to liberty (e.g. Article 2:1 German Basic Law, Article 6 EU Charter, Article 3 UDHR). Most human rights instruments further recognize that "human dignity is inviolable" and "must be respected and protected" (Article 1 Charter of the EU). If human dignity is interpreted in accordance with the moral "categorical imperative" as requiring maximum equal liberty for personal self-development consistent with equal human rights of all others, it is only logical to construe the general human right to liberty as applying to all areas of personal development which are not protected through specific human rights. Some constitutional texts explicitly provide for such general rights to maximum equal liberty subject to other constitutional restraints and democratic legislation (e.g. Article 2:1 of the German Basic Law). Other constitutional systems (e.g. in the USA) achieve similar results by the constitutional requirement that governmental restrictions of freedom need a legal basis in constitutional law and democratic legislation. Comparative studies of constitutional democracies confirm that in "most of the English-speaking world and most of Western Europe … there is general acceptance of a principle of maximum individual freedom consistent with equal freedoms for others" subject to democratic legislation.

	The Preamble to the US Constitution describes its objectives as, inter alia, to “promote the 
general welfare and secure the blessings of liberty to ourselves and our posterity.” In view of the logical impossibility of enumerating all areas of individual liberty protected by the Constitution, and in order to reduce the danger of interpreting human rights catalogues as excluding liberty rights not explicitly listed, the founding fathers of the US Constitution made it explicit in the Ninth Amendment of the Constitution that "the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people". In the constitutional deliberations, other law-makers considered the Ninth Amendment as unnecessary because the constitutional principle of limited government prohibited governmental restraints of freedom that were not necessary for the protection of human rights.  How justified the concerns of the US founding fathers had been, is illustrated by the denial by US courts of any “vested right to trade with foreign nations”. In European law, it has likewise been claimed that the lack of any explicit legal guarantee of freedom of trade with third countries should be understood as excluding the existence of such a right, without even examining whether the “freedom to conduct a business in accordance with Community law” (now explicitly recognized in Article 16 of the EU Charter of Fundamental Rights) must not be construed in conformity with the customs union principle (Article 23 EC Treaty) to the effect that freedom to conduct a business protects also freedom to import from, and export to, third countries in conformity with EC law.

The "double standard" practiced by some courts (especially in democracies with traditionally effective constitutional safeguards of economic freedom, like England and the USA) in favor of a higher degree of  judicial scrutiny in the review of governmental restraints of civil and political rights compared with economic rights, is based on grounds of constitutional separation of powers and judicial self-restraint vis-à-vis economic legislation. Domestic judges tend to refrain also from reviewing compliance with WTO law and its underlying economic insight that discriminatory trade restrictions are hardly ever an optimal policy instrument for promoting consumer welfare.  Individual rights to maximum equal liberty in all areas of personal development are more frequent in "post-war constitutions" (e.g. the German Basic Law of 1949), "post-revolutionary" human rights instruments (like the French Declaration of Human Rights and the Rights of the Citizen of 1791) and “international constitutions” (like the EC Treaty) designed to prevent the recurrence of historical experiences of  "constitutional failures" (e.g. collaboration of cartelized industries in Germany with the Nazi dictatorship). One major advantage of such broad liberty guarantees is to promote freedom and rule of law by facilitating judicial review of illegal government restrictions.

	Do human rights end at national borders? Or do they also limit foreign policy powers and 
protect human rights across frontiers? Modern national constitutions (such as Articles 23 and 24 of the German Basic Law), European Community law and also UN human rights law (e.g. Article 28 of the UDHR) confirm that "inalienable" human rights are designed to limit all government powers, regardless of whether they are exercised unilaterally by national government institutions or collectively by international organizations. The German Law on Foreign Economic Relations of 1961, for example, explicitly recognizes that the constitutional guarantees of liberty (e.g. in Articles 2,12 and 14 of the Basic Law) protect also freedom to import and export subject to legislative restrictions which "are to be limited as to character and extent to the minimum necessary to achieve the purpose stipulated in the empowering legislation" and "are to be formulated in such a way as to interfere as little as possible with the liberty of economic activities" (Article 1 of the German Law on Foreign Economic Relations). In a judgment of 1904, the US Supreme Court likewise recognized: "No one has a vested right to trade with foreign nations, which is so broad in character as to limit and restrict the power of Congress to determine what articles … may be imported into this country and the terms upon which a right to import may be exercised." 

Like most other human rights, constitutional liberty rights are subject not only to legislative restrictions aimed at balancing and reconciling different human rights. They also require legislative, executive and judicial implementing measures limiting the inherent tendencies of liberties and markets to destroy themselves (e.g. through monopolies and cartels) and enabling individuals to positively exercise their freedoms. Since, for domestic policy reasons, most governments liberalize their discriminatory border restrictions preferably through reciprocal international agreements (e.g. in the WTO) rather than unilaterally: Should the constitutional liberty rights of citizens be construed as conferring individual rights to free movements of goods, services, capital and persons in conformity with such international liberalization agreements ratified by domestic parliaments? Should national judges review whether discriminatory border restrictions limit individual liberty in a manner inconsistent with precise and unconditional  international treaty obligations of the country concerned, or whether discriminatory border restrictions impose "unnecessary" restrictions that cannot promote equal human rights of domestic citizens?

	b)	Interpretation of Freedoms of Trade in International Integration Law

How should universal and regional human rights guarantees of personal liberty (e.g. in Article 3 UDHR) be construed in the particular legal context of international organizations? Do "historical", "textual” and “legalist interpretations" justify the view that such guarantees traditionally end at national borders, and their instrumental function for promoting individual and social welfare through mutually beneficial cooperation across frontiers cannot justify “new interpretations”? Does the particular context of worldwide organizations (such as weak parliamentary and judicial control of collective international rule-making), and the function of human rights to protect maximum equal liberty of citizens, lend support to “contextual” and “functional interpretations” that human rights should be presumed to apply to foreign policy powers no less than to domestic policy powers, and should be construed in conformity with self-imposed intergovernmental obligations to protect freedom, non-discrimination and rule of law across frontiers?

The very idea of protecting personal self-development ("human dignity") and maximum equal liberties through human rights requires to protect also mutually beneficial transnational cooperation among citizens, as it has been done in the jurisprudence of the EC Court of Justice protecting free movement of goods, services, persons, capital and payments as "fundamental rights" of citizens in the EU. This legal and judicial limitation of the centuries-old tradition in nation states to discriminate against foreigners, foreign goods, foreign services and foreign investments has not only extended the fundamental rights of EC citizens across frontiers. It has also enhanced their social welfare and their potential for personal self-government and self-development. Since the “freedom to conduct a business in accordance with Community law”, protected by Article 16 of the EU Charter of Fundamental Rights in accordance with the jurisprudence of the EC Court, must be construed in conformity with the EC Treaty guarantees for free movement of goods, services, persons, capital and payments, it was also logical for the EC Court to recognize “freedom of trade as a fundamental right”, as it had been done before by some Constitutional Courts in EC member countries. 

	The EC Treaty’s customs union principle prohibits not only discriminatory tariff and non-tariff trade barriers among EC member states (cf. Articles 28-30,90) but also vis-à-vis third countries, as specified in the customs union rules of GATT (e.g. GATT Articles II,XI,XXIV) ratified by the EC and by all EC member states. International agreements ratified by the EC, like the GATT and other WTO Agreements, are legally binding on the EC and all its member states (cf. Article 300:7) with a legal status inside the EC that is, according to the EC Court, higher than autonomous “secondary law”. EC law must be construed consistently with international law binding on the EC, and “the Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed” (Article 220). The EC Court should therefore guard the rule of law not only with regard to the internal dimension of the customs union principle (Articles 28-30,90 EC Treaty) but also vis-à-vis its precise and unconditional external prohibitions of tariffs and non-tariff trade barriers since these GATT and WTO obligations (e.g. in GATT Articles II,III:2,XI:1) are recognized as an “integral part of the Community legal system” with a legal rank superior to EC regulations and other “secondary law.” Yet , the EC Court has persistently refused to apply GATT and WTO rules and dispute settlement rulings unless EC regulations were intended to implement particular WTO obligations or made reference to specific WTO provisions.

	The EC Court’s judicial self-restraint in ensuring the GATT- and WTO-consistency of EC regulations undermines the rule of law and democratic legitimacy of EC law. Since the 1970s, more than 30 GATT and WTO dispute settlement reports have found the EC institutions to violate GATT and WTO guarantees of freedom of trade ratified by the EC and by all national parliaments in EC member states for the benefit of EC citizens. EC citizens and their national parliaments have never granted, neither in EC law nor in WTO law, a mandate to EC institutions to violate precise and unconditional WTO guarantees of freedom of trade, non-discrimination and rule of law. By undermining the rule of EC law and of international law, the EC institutions undermine also their own legal and democratic legitimacy as well as the liberty rights of EC citizens to exercise their human rights across frontiers in conformity with EC law and international law binding on the EC. 

The success of the EC’s common market law was largely due to decentralized private and judicial enforcement of the pertinent EC rules through self-interested citizens and national and European courts. The EC’s proposals for more decentralized enforcement of EC competition law by citizens and national courts are presented as a new paradigm for more democratic governance in the EU.  Since liberal trade and competition rules serve complementary functions for promoting individual and social welfare through “a system ensuring that competition in the internal market is not distorted” (Article 3,g EC Treaty), citizens and courts should also be more actively enlisted in the decentralized enforcement of the external customs union rules of the EC. Having recognized that the EC Treaty grants individual rights to freedom of competition and freedom of trade inside the EC, national and EC courts should protect these freedoms also in the external relations of the EC against manifestly illegal restraints of trade and competition by the EC institutions. Legal and judicial protection of such freedoms has nothing to do with “laissez faire liberalism” and one-sided protection of “negative liberties”. Freedom of competition and freedom of trade protect also “positive liberties” of participating in a mutually beneficial division of labor. Lawyers should no longer ignore the basic insight of modern economic theory that governments should correct “market failures” through domestic interventions directly at the source of the market distortion without restricting the gains from trade. EC lawyers defending illegal and welfare-reducing trade protectionism as “realpolitik” so as not to “disarm politicians and civil servants” undermine the human rights of EC citizens to protection of maximum equal liberties, rule of law and social welfare in the EC.

C	Human Rights Criteria for Interpreting the WTO's Public Interest Clauses: the Human Right to Health and Access to Medicines

	The universal recognition of human rights requires to construe the numerous public interest clauses in WTO law in conformity with the human rights requirement that individual freedom and non-discrimination may be restricted only to the extent necessary for protecting other equal human rights. The non-discrimination and “necessity” requirements in the “general exceptions” of WTO law (e.g. in GATT Article XX and GATS Article XIV) reflect these human rights principles. WTO law gives clear priority to the sovereign right to restrict trade if this is necessary for the protection of human rights (e.g. to life, health, food, education, a clean and sustainable environment, and social security). The recent WTO panel and Appellate Body reports on US import restrictions of shrimps (aimed at protecting endangered species of sea turtles) confirmed that import restrictions may be justifiable under WTO law for protecting human rights values not only inside the importing country but also in other countries and in the High Seas. 

By prohibiting discriminatory and protectionist abuses, the “general exceptions” in WTO law aim at reconciling freedom of trade with the “human rights functions” of safeguard measures restricting liberal trade. In such legal and judicial balancing processes, human rights must guide the interpretation not only of the WTO’s “exceptions” and safeguard clauses, but also the interpretation of the basic WTO guarantees of freedom, non-discrimination, property rights and rule of law which protect the corresponding human rights guarantees of individual liberty, non-discrimination, private property and access to courts. Moreover, the right of the importing country to protect the human rights of its citizens needs to be balanced with the corresponding right of the exporting country and also with the economic insight that trade restrictions are only rarely an efficient instrument for correcting “market failures” and supplying “public goods.”

In past GATT and WTO practice, governments have hardly ever referred to human rights in their invocations of the “general exceptions” (e.g. in GATT Article XX) and other safeguard clauses in GATT and WTO law, e.g. when applying measures “necessary to protect public morals” or to “protect human, animal or plant life or health.”  There appears to be no evidence, however, that past GATT practice under Article XX has been inconsistent with human rights. GATT dispute settlement jurisprudence, for instance, has never challenged the legality of non-discriminatory, “necessary” safeguard measures under GATT Article XX. Also WTO practice seems to be consistent so far with interpreting the "general exceptions" in WTO law (e.g. Article XIV GATS, Article 8 TRIPS Agreement) in conformity with human rights (such as the rights to health, food, adequate housing and education, or the right to protection of moral and material interests resulting from scientific, literary or artistic production of which one is the author). The numerous “human rights clauses” in international economic agreements concluded by the EC with third countries have likewise been used only rarely for trade restrictions as a remedy for human rights violations.

	General Comment No.14 (2000) on the human right to the highest attainable standard of health (Article 12 ICESCR), adopted by the UN Committee on Economic, Social and Cultural Rights in May 2000, defines the right to health as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as availability, accessibility and affordability of health facilities, goods and services. The legal obligations of states to respect, protect , promote and fulfil this human right requires legislative implementation, judicial protection and health policy measures which, “depending on the availability of resources, … should facilitate access to essential health facitlites, goods and services in other countries, wherever possible and provide the necessary aid when required”. The General Comment recognizes that trade restrictions e.g. on individual access to essential food, drugs and health services can be inconsistent with the human right to health, and that cooperation might be required also in the WTO for the implementation of the right to health.
	
	The universalization and expanding subject matters of both human rights and intellectual property law have prompted negotiations in various UN bodies and also in the WTO on the clarification of the complex interrelationships between the TRIPS Agreement and human rights. While the need for intellectual property as incentive for research and development (e.g. of new pharmaceuticals) is no longer contested, the proper balancing between the social objectives of the TRIPS Agreement (see Articles 7 and 8), its “regulatory exceptions” (e.g. in Article 6 for “parallel imports”, Article 31 for “compulsory licencing”, Article 40 concerning abuses of intellectual property rights), and the appropriate scope of intellectual property protection (e.g. for genetic and other living materials, rights of indigenous peoples) raises numerous controversial questions. Yet, there seems to be broad agreement that the TRIPS provisions are flexible enough to permit necessary health protection measures so as to ensure access to affordable medicines to treat AIDS and other pandemics. 

	D	Democratic Balancing of Human Rights: Are WTO Rules Adequate?

	In their continuing evolution, human rights and global integration law require constant mutual balancing and concretization aimed at maximizing human rights. This human rights objective can be realized only if - similar to the bargaining inside national parliaments on the balance of private and public interests in national economic and human rights legislation - international  rule-making is constitutionally restrained so as to avoid human rights being “traded away”. Just as views on to the appropriate balancing of human rights in national legislation tend to differ depending on the interests involved, there continue to be serious doubts whether the trade-oriented TRIPS  provisions appropriately balance e.g. the human rights “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author” with the right of everybody “to enjoy the benefits of scientific progress and its applications” (cf. Article 15:1 ICESCR). While national and international judges tend to exercise deference vis-à-vis legislative discretion, human rights require judges to protect the essential core of human rights against unnecessary interference by national and international rule-makers.

The high minimum standards of the TRIPS Agreement for the protection of intellectual property rights are beneficial for industries in developed countries where more than 90% of patented inventions are registered. It remains to be clarified whether the relatively vague TRIPS provisions on prevention of abuses of intellectual property rights (e.g. Articles 8,40), on the transfer and dissemination of technology (e.g. Article 7), and on the protection of traditional knowledge, genetic resources and “farmers rights” (e.g. in Article 27) are adequate for less-developed countries which own 90% of the world’s biogenetic resources and depend on importation of technology and on more effective property rights protection of their own resources. While intellectual property protection of e.g. biotechnology may be necessary for protecting human rights (including the right to food), such protection needs to be balanced with legitimate protection of e.g. traditional knowledge owned by indigenous people, “farmers rights” and the human right to health and access to medicines at affordable prices. 

	The report by the UN High Commissioner on the impact of the TRIPS Agreement on human rights confirms that human rights are important “context” for the interpretation of TRIPS provisions, for instance as regards “parallel imports” of low-priced medicines, “exhaustion” of intellectual property rights, compulsory licensing and “local working” requirements for patented inventions. The need for balancing human rights arises also in many other areas of WTO law and practice. The right to work, for instance, may need to be protected through social adjustment assistance (as permitted under GATT Articles XVI and XIX) if the private adjustment costs impose unjust sacrifices on workers in import-competing sectors. Human and labor rights may require governments to promote labor mobility so that unemployment caused by import competition can be compensated by new employment opportunities in the export sector. The WTO rules on non-discriminatory market access may necessitate complementary competition and social rules protecting small enterprises and vulnerable groups from abuses of market power. The WTO’s safeguard clauses leave broad discretion to each WTO member country for dealing with these and other trade and adjustment problems in a manner protecting human rights with due regard to the scarcity of resources. WTO bodies must exercise deference to legitimate balancing decisions by national governments and parliaments which enjoy more democratic legitimacy for the inevitable trade-offs than distant WTO bodies focusing on trade rules.

E	Need for WTO Competition and Social Rules as Necessary Complements of Human Rights

	There is broad consensus today among governments and economists that market competition may lead to “market failures” (including inadequate commercial investments for medecines needed by poor people in tropical countries) which may necessitate national competition and social rules. The widespread protectionist abuses of economic and regulatory power, such as abuses of intellectual property rights for restricting and allocating markets and for blocking competing research efforts, also require international competition rules in the WTO so as to help governments to coordinate their national competition policies and to overcome domestic protectionist pressures against effective competition rules at home. The 1997 GATS Protocol on Telecommunications, for instance, already includes detailed competition rules in view of the fact that, in many countries, telecommunication services are dominated by monopolies and distorted through subsidies and restraints of competition. The liberalization of many other services sectors (like road, rail, air and maritime transports) will likewise remain impossible without complementary limitations on monopolies and restraints of competition. Many international restraints of competition are particularly harmful for less-developed countries (e.g. in case of export cartels, international shipping and air transport cartels charging discriminatory prices on routes to developing countries). As sectoral competition rules risk being abused by special interest groups, the proposals for limiting cartel agreements,  other anti-competitive business practices and abuses of intellectual property rights through worldwide WTO minimum standards for undistorted competition and transnational cooperation among competition authorities are of constitutional significance for protection of freedom, non-discrimination and mutually beneficial division of labor across frontiers.

	F	Need for More Democratic Rule-Making in Worldwide Organizations

	Secretive and producer-driven intergovernmental rule-making procedures in specialized international organizations, including the WTO and standard-setting practices in UN Specialized Agencies (like FAO and ITU), may be inconsistent with the human rights to democratic participation in the exercise of government powers and to transparent decision-making maximizing equal human rights. In order to promote more effective democratic and parliamentary control of trade policy-making, transparency and more responsible deliberative democracy in the trade policy area, the International Law Association has recommended the establishment of an advisory WTO parliamentary committee and of an advisory WTO civil society committee. Citizens and NGOs could thus be represented in a more balanced manner so as to make the one-sided influence of “producer interests” on trade policy-making processes more accountable vis-à-vis representatives of consumer interests and other “public interests”. Since more than 110 WTO member countries ratified the ICESCR, and almost all of them ratified the UN Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child, the time has also come for express references - in WTO Ministerial Declarations and in WTO jurisprudence - to the promotion and protection of human rights so as to enhance a more coherent constitutional discourse and more general awareness of the complementary functions of human rights and of global integration law. Such WTO references to human rights could also help other WTO bodies (such as the WTO’s Trade Policy Review Mechanism) to contribute so the needed integration and “constitutionalization”of the so far fragmented human rights treaties and sectoral integration agreements.

Conclusion: Need for Multi-Level Constitutionalism Protecting Human Rights More 
Effectively

The universal recognition and protection of inalienable human rights at national, regional and worldwide levels requires a new human rights culture and a citizen-oriented national and international constitutional framework different from the previously prevailing state-centered conceptions and functionalism. In Europe, the emergence of “multi-level governance” has led to “multi-level constitutionalism” and “divided power systems” that have succeeded in overcoming Europe’s history of periodic wars and of “constitutional failures” of nation states to protect human rights and peaceful division of labor across frontiers. Just as within federal states “the federal and state Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes”, international law and international organizations must be understood as parts of the constitutional limitations on abuses of foreign policy powers necessary for protecting human rights more effectively. National constitutional law and human rights cannot achieve their objectives unless they are supplemented by international constitutional law and by effective protection of human rights in the economy no less than in the polity. 

	Promotion and protection of human rights is not only the task of national and international human rights law and of specialized human rights institutions. Also the law of worldwide and regional organizations (like UN law, WTO law and EU law) serves “constitutional functions” for protecting freedom, non-discrimination, rule of law and social welfare across national frontiers. Historical experience confirms that, without such multilateral rules, national parliaments can neither effectively supervise foreign policies among 200 sovereign states nor ensure that foreign policy decisions respect human rights and rule of law not only at home but also across frontiers. European and global integration law further demonstrate that the different layers of  national and international constitutional rules need to be supplemented by corresponding national and international rule-making, executive and judicial processes that must be subject to effective democratic controls and constitutional safeguards of “subsidiarity”, “necessity” and “proportionality” of regulatory limitations of human rights (cf. Article 5 EC Treaty). 

As described already by Kant more than 200 years ago, human rights and democracy require  national as well as international constitutionalism. The democratic legitimacy of the various levels of government derives from respect for human rights and from democratic participation of citizens in the exercise of national and international government powers. Just as national citizenship and European Union citizenship are complementary (cf. Article 12 EC Treaty), citizens must become recognized also as legal subjects of international law and international organizations. Their democratic participation and more effective representation in international organizations requires far-reaching constitutional reforms of the state-centered international legal system so as to enable e.g. “UN citizens” and “WTO citizens” to invoke international guarantees of freedom before domestic courts and participate more actively in parliamentary and civil society institutions at national and international levels. 

The German Constitutional Court, for example, has rightly interpreted the creation of the European Central Bank as an act that redefines the guarantee of private property in money protected by the German Constitution (Article 14) as a fundamental right. From such a human rights perspective, the state-centered interpretation of the Agreement establishing the IMF as an exclusively monetary agreement on the rights and obligations of governments in the field of monetary policy, without legal relevance for the human rights obligations of governments and of UN agencies, appears too one-sided. International guarantees of freedom, non-discrimination and rule of law, such as the UN guarantees of human rights and the WTO guarantees of liberal trade and property rights, should be seen as part of the domestic constitutional systems of WTO members which need be protected by domestic courts so as to safeguard human rights across frontiers. Human rights law requires that the delegation of regulatory powers to national, regional and worldwide institutions must always remain constitutionally limited. Democratic sovereignty remains, as proclaimed in the Preamble to the UN Charter, with “We the Peoples of the United Nations”. The protection of human dignity and of “individual sovereignty” through human rights and global integration law remains the biggest constitutional challenge of law and governance in the 21st century at all national and international levels of the exercise of governmental and private power.-