First sermon in the new year from Pastor Lamy

Here are some more interesting thoughts from the "Dalai Lamy", sorry, should be Pascal Lamy. I'm sure some people will get excited if you have the patience to finish this long speech, but the trader lawyer inside me (as many other trade lawyers probably will) has already started asking: "Is that possible? Aren't the WTO DSB supposed to decide cases on the basis of 'covered agreements', which, no matter how desirable it might sound, do not include the UDHR, ICCPR or the ICESCR? Can you really use trade rules to strengthen human rights? Aren't the two regimes supposed to be parallel universes like Pandora and Earth, where human rights is respected on one but not the other?"

On a separate note, I bet 100 THB that, with speeches like this keep flowing during the rest of his DG term, Lamy has a pretty decent chance of getting nominated for the Nobel Peace Prize after his term. 

The full text of the latest "Lamon" is reproduced below, with emphases added by me, and my own comments in italicized font in brackets. 

"Towards Shared Responsibility and Greater Coherence: Human Rights, Trade and Macroeconomic Policy"
Colloquium on Human Rights in the Global Economy, Co-organized by the International Council on Human Rights and Realizing Rights, Geneva, 13 January 2010


The last time we discussed this issue was in the cathedral of Geneva with Desmond Tutu. Putting together the issues of trade and human rights may seem odd. For many, trade is the villain. It is a symbol of mercantilism, capitalism, the tool through which powerful multinational corporations impose their law over human beings, impairing their social, economic and cultural rights. The history of the relationship between trade and human rights is a history of suspicion, and to some extent of deliberate reciprocal ignorance. 

Yet, trade goes hand in hand with human rights. Trade presupposes human interaction, respect and understanding. If conducted with respect, "trade polishes and softens the most barbarous mores", to quote Montesquieu and his theory of "doux commerce".

One too often forgets that human rights and trade rules, including WTO rules, are based on the same values: individual freedom and responsibility, non-discrimination, rule of law, and welfare through peaceful cooperation among individuals. Not only are they based on the same fundamental values; they are also the result of common concerns. Both human rights and global trade rules were considered a key element of the post-World War II order, a rampart against totalitarianism. It is no coincidence that the seeds of the multilateral trading system were planted at the same time as the Universal Declaration on Human Rights was being drafted in the mid-1940s. Both were seen as indispensable to world peace. In spite of these common underpinnings, for decades the interaction between the trade and human rights communities seemed to be governed by distrust.

And yet, human rights and trade are mutually supportive. Human rights are essential to the good functioning of the multilateral trading system, and trade and WTO rules contribute to the realization of human rights.

What role do human rights play in trade? First, civil and political rights are a key ingredient of good governance, which in turn is essential to the proper conduct of trade relations. Freedom of expression, for example, brings transparency, one of the core principles of the world trading system. Secondly, social, economic and cultural rights, often seen as the main victims of globalization and of the opening of markets, are important ingredients for successful trade liberalization. I will come back to this point in a few minutes.

How can trade help promote human rights? I would start by noting that trade measures are the most commonly used instrument in developed countries to put pressure on states violating human rights. (Does this mean that the WTO sanctions such blatant violations of trade rules? Does this mean that trade rules have to be ignored or even breached so that human rights can be restored? Wouldn't this point to inherent conflict rather than complementarity between the two?) 

But more importantly, trade is a means to an end; and the end is raising the standards and conditions of living of all. The objective of sustainable development features prominently as one of the objectives of the WTO. Trade negotiators chose to include it in the preamble of the WTO Agreement (yes the preamble rather than the main text, which means it is not enforceable). How is this goal achieved? The opening of markets creates efficiency, stimulates growth and helps spur development, thereby contributing to the implementation of the fundamental human rights that are social and economic rights. One could almost claim that trade is human rights in practice! 

The reduction of trade barriers in agriculture, enhanced market access for agricultural products and the gradual decrease in subsidies provided by rich countries to their farmers, for example, all contribute to the same objective: the implementation of the right to food for all.

But let me immediately discard a misconception that is unfortunately too widely spread. The primary vocation of the WTO is to regulate, not to deregulate trade as is often thought. By putting in place rules to regulate trade flows and remove trade distortions, the WTO aims to create a global level playing field, where fairness is the rule and where the rights of individual members are safeguarded.

I would note, in this regard, that the case law of the WTO dispute settlement mechanism acknowledged that international trade law could not be interpreted "in clinical isolation" from international law in general. And, incidentally, how could the WTO &mdash created in 1994 by an international legal instrument — be immune to the rules of the general international law from which it derives its mission and its very existence?

Of course, trade rules are not perfect. They may, in some cases, have unintended consequences on human rights. Some claimed so, for example, with respect to intellectual property rights. I sense, however, a growing awareness among trade experts of the importance of human rights and of the role trade can play in promoting and anchoring such rights. The concerns sparked by certain provisions of the TRIPS [Trade-related Intellectual Property Rights] Agreement led trade negotiators to agree, in 2005, to amend the TRIPS Agreement to facilitate access of developing countries deprived of domestic pharmaceutical production capability to affordable medicines. Similarly, discussions are underway about the possible protection of folklore and traditional knowledge.

But let me go back to the question of trade, development, and human rights. While trade can promote development and contribute to the reinforcement of human rights, it is not a panacea. Trade liberalization can entail social costs. To be successful, the opening of markets requires solid social policies to redistribute wealth or provide safeguards to the men and women whose living conditions have been disrupted by evolving trade rules and trade patterns.

This is what I have called the "Geneva consensus", under which the opening of markets is necessary to our collective well-being, but does not suffice in itself.

It does not suffice unless strong safety nets help correct the imbalances between winners and losers at the national level. It does not suffice unless the countries which do not enjoy sufficient human, technical, and financial resources to build the necessary infrastructure or to put in place such safety nets domestically are assisted by the international community. Hence the importance of the WTO mandate of Aid for Trade.

For trade to act as a positive vector for the reinforcement of human rights, a coordinated international effort is needed. A coherent approach, which integrates trade and human rights policy goals, should be developed. Progress can no longer be achieved by acting in an isolated manner. Coherence should become our guiding principle in fostering development and human rights: coherence between the local and the global, between the world of trade and the world of human rights, between the WTO as an institution and the various organizations active in the field of human rights.

Today's world may be flat, to paraphrase Thomas Friedman, but it is not united. It is, on the contrary, more fragmented than ever. The wind of globalization, which has been blowing during the past few decades, has dispersed our energies. We now need to bring them together and act in a coordinated way.

This responsibility lies with all of us. It is the responsibility of the members of the WTO, which are practically all party to either the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights, to uphold their human rights obligations together with the obligations to which they have subscribed within the WTO Agreement. But it is also the responsibility of the WTO, of the Office of the High Commissioner for Human Rights — which is the custodian of human rights treaties — and of organizations such as the International Council on Human Rights and Realizing Rights to work to institutionalize the relations between the trade and human rights communities. It is our responsibility to coordinate our actions in a meaningful and efficient manner to ensure that trade does not impair human rights, but rather strengthens them. I am aware of the challenge this represents, of the change in mindset this requires.

By having invited me to this event today, a first step has been crossed, and I thank you for having taken this initiative. My hope, as Sir Winston Churchill said, is that "this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

Thank you for your attention.