Читать книгу Just Trade - Berta Esperanza Hernández-Truyol - Страница 8
ОглавлениеGetting Started
A General Introduction
For the Cyclops have no ships
with crimson prows,
No shipwrights there to build them
good trim craft
that could sail them out to foreign
ports of call
as most men risk the seas to trade
with other men.
Such artisans would have made
this island too a decent place to live in.
—Homer, The Odyssey
Just as Homer identified trade with the very concept of civilization, we seek by our analysis to identify just trade: specific paths that governments must follow to use trade’s enormous power for the advancement of human rights. The realities and the consequences of leaving undisturbed the profound disconnect between human rights law and international trade law are heartbreaking. For example, India’s historic opening to freer international trade in the 1980s brought huge gains to a middle class that in essence did not exist in the 1960s and now numbers more than three hundred million1 newly prosperous Indians. Against this inarguably positive economic growth must be seen the indifference of trade rules to one of a dozen foreseeable costs of India’s realization of Ricardo’s conception of comparative advantage—thousands of young Indian girls and boys chained to textile looms day and night to meet world demand for inexpensive apparel.
In Bolivia, while trade with Brazil in natural gas blossoms to enrich the country’s European-descended “white” elite, 90 percent of rural and predominantly Amerindian Bolivians live in utter poverty, unable to satisfy even basic requirements for sanitation, much less receive a secondary education.2 Families in Nicaragua and other poor Latin nations participate in globalization’s export boom by keeping their young children out of school to pick pesticide-laden tobacco, bananas, and vegetables. In El Salvador, the 2004 trade agreement among the United States and Central American countries promises increased employment in sugarcane production for the U.S. market, but at the cost of the education of more than the twenty-five thousand children as young as eight who work in the most dangerous job in agriculture, planting and cutting cane with sharp machetes and hazardous chemicals.3 Virtually all the children of La Oroya in the Peruvian Andes suffer from lead poisoning and other consequences of severe air, soil, and water pollution, including sulfur dioxide levels between 80 and 300 percent of those permitted by the World Health Organization. The cause is unfiltered, unlimited, uncontrolled pollution from the copper and lead smelter of transnational Doe Run, whose exports have earned the company hundreds of millions of Peruvian nuevos soles and the town the title of one of the ten most polluted cities on earth.4 In Papua New Guinea, the black islanders on Bougainville worked under slave-like conditions for the London-based mining company Rio Tinto to extract gold and copper, leaving behind tons of waste material. The resulting pollution of the air and water damned residents to decades of physical and mental health ills. When the islanders revolted, the army intervened to protect the government’s 20 percent of the mine’s profits, commencing a ten-year civil war. The legacy of Rio Tinto’s and the government’s insatiable appetites is the thousands of villagers killed, thousands more raped, burned villages, and other “atrocious human rights abuses.”5
Nature of the Intersections
A recent World Bank study poignantly summarized the troubling dilemma that this volume addresses: “Globalization is already a powerful force for poverty reduction as societies and economies around the world are becoming more integrated. Although this international integration presents considerable opportunities for developing countries, it also contains significant risks. Associated with international integration are concerns about increasing inequality, shifting power, and cultural uniformity”6 In small countries whose comparatively advantaged goods capture profitable shares of world exports, trade can actually worsen already-underdeveloped governmental institutions. Elite groups of large exporters with political sway prefer the freedom from regulation and oversight that weak ministries ensure.7 Globalization shifts power from governments and civil society to huge transnational corporations whose decisions take on global force.
What Amy Chua in World on Fire called the “market-dominant minorities” have disproportionately benefited from globalization and have disenfranchised the very majorities empowered by democracy.8 Globalization creates cultural uniformity by rewarding only those who traverse the global market, producing what that market requires, rather than what might ensure food security for a country or preservation of indigenous lifestyles. Globalization also has increased inequality in many ways. On one scale, the three richest people in the world have assets that exceed the combined gross domestic product of the forty-eight least developed countries. These indirect effects explain much of the basis for the burgeoning backlash against globalization, successfully articulated by massive protests of environmental, labor, and development advocates against the World Trade Organization ministerial meetings in Seattle in 1999, in Cancun in 2003, and in Hong Kong in 2005.
Protestors against globalization also have caused melees in various Central and South American capitals to protest free trade agreements with the United States. They staged demonstrations in Mar del Plata, Argentina, during the 2005 Summit of the Americas, which brought together the heads of state of hemispheric nations in an unsuccessful attempt to restart negotiations for a Free Trade Area of the Americas.9 Trade added terrorism as an unwanted intersection when Colombia’s second-largest guerrilla group, which has engaged in decades of pillaging and holds some five hundred hostages, announced in 2007 that it will agree to a cease-fire if the FTA with the United States is scrapped.10
These protestors oppose globalization in all its forms, not only its most visible international trade aspects—the movement of goods and services across borders (imports and exports)—but also the many other inevitable ways in which economies, and societies, are growing closer. This often-forced intimacy has resulted from the telescoping both of distance and time by advanced communication and transportation technologies, control by multinational corporations of financial markets that affect our daily lives, cross-border investment and the outsourcing of jobs, and liberalization of exchange and capital controls. These activities have lessened government influence, transnationalized citizenship, and in general divested discretion from individual citizens through bestowal of power on anonymous and unaccountable actors.
For those who prefer numbers,11 consider the following: while world trade has increased at the astounding rate of nearly 400 percent in the past thirty years, fully one-fourth of the world’s population subsists on less than one dollar per day and one-half survives on less than two dollars per day. Even as international trade expands to account for at least 20 percent of the GDP of every developed nation, the World Food Program of the United Nations has expanded operations to feed twice as many hungry people in 2005 as in the previous year.12 As trade in the United States was expanding at three times the rate of its population increase, petroleum use—and with it climate-changing carbon emissions—grew by 20 percent. Virgin forests are fast disappearing. One child in five between the ages of five and fourteen remains in the workplace. The gap between the richest and poorest nations has increased by more than 100 percent in the last forty years. Someone dies of hunger every four seconds.13
Human Rights Criticism of Trade Rules
Human rights advocates direct three main criticisms at globalization in general and international trade in particular. First, critics claim that trade exacerbates human rights concerns, among other ways by encouraging sweatshops and child labor. Trade, its detractors argue, also results in overuse of the natural resources that give developing countries their comparative advantage. For example, tropical hardwoods of the Amazon rain forest and oil from beneath the Nigerian plains quickly are disappearing; this trade result encourages governments and multinational corporations to suppress indigenous peoples who try to protect their ancestral lands from financial exploitation.
Second, trade rules at best complicate and at worst prevent government use of economic sanctions to penalize governments that condone genocide, practice torture, or commit other human rights violations. As explained in chapter 2, GATT’s Four Pillars command unconditional nondiscrimination in the treatment of imports from other Members. The principal and most effective enforcement tool of many human rights treaties and policies is precisely to discriminate among countries based on their human rights performance, to deny market access to the goods of these countries, or even to prohibit trade with them altogether.14 Trade rules require that WTO Members treat products that share similar physical characteristics and uses alike, even if one product (for example, a blouse) was produced using indentured child labor, while the other was not; or if one product (for example, a tropical hardwood armoire) was produced using unsustainable forestry methods, while the other was not; or if one product (petroleum, for example) was obtained by depriving indigenous peoples of their economic future, while the other was not. These contradictory approaches create important and unnecessary obstacles to just trade: using trade’s power to realize human rights objectives.
Third, and we believe most tellingly, human rights proponents complain that trade rules, by distancing themselves from responsibility for improving the human rights record, fail to take advantage of trade’s vast power by making compliance with human rights law a condition of participation in trade’s bounty. Beginning at the regional economic integration level and ultimately spreading to global rules of the WTO, trade instruments must, both from a legal and a policy perspective, command purposeful integration of trade law with human rights law. Globalization thus is faulted both for making the human rights situation worse through its activities and for not improving the human rights record through its ubiquitous presence and enormous power.
For example, human rights activists and workers in the North often hold the view that the developing economies of Latin America, in order to attract investment, engage in a “race to the bottom.” That is, they sacrifice human rights standards to provide lower costs for foreign investors.15 Most economic studies of why foreign investors choose certain countries for their operations discount these fears, noting that environmental costs, and even wage rates, cohabit a long list of factors that contribute to a corporate decision to invest. Nonetheless, the fear of a race to the bottom is so widespread that it affects the motivation of a developing country in decisions to protect the environment and to improve the conditions of workers. Thus, it is not surprising that the most fervent reaction against the Washington Consensus—that philosophical perspective that promotes industrialization and free trade by the private sector along with the reduction of government spending and regulation—has come from environmental and labor activists.16
There is an obverse to this coin. As the World Bank study notes, globalization is a powerful force for reducing poverty. It literally creates money. As Clive Crook has written in the Economist, “Globalisation, far from being the greatest cause of poverty, is its only feasible cure.”17 In developing countries, trade creates jobs that did not previously exist and that raise living standards. For example, during the last three decades of the 20th century, while the world’s population was increasing by two-thirds, the percentage of that population living on less than an adjusted two dollars per day decreased from 44 percent to 8 percent.18 Whether an econometric formula accurately can measure poverty is widely contested, however. The World Bank itself recognizes that poverty is a complex problem of which financial deprivation is but one component (see chapter 12 on poverty).
Trade also increases company profits, which theoetically allows lowering of prices, in turn raising real incomes of all consumers, rich or poor. Trade leads to technological innovation, which allows industries in developing countries to produce more efficiently, enabling people in these nations to buy more goods and services with less income. With increased living standards, governments and civil society can afford to focus on more than preventing starvation, which can lead to greater worker rights, improved health, broader freedom of association, and increases in other human rights.
To be sure, while trade’s compelling economic growth indeed has driven absolute poverty downward, some areas of the globe have longer resisted trade’s loud knock of opportunity, with unhappy results. For example, while Asia’s poor dropped dramatically as India, China, Japan, and others opened their trade doors, Africa’s poverty levels increased, with the result that, while thirty years ago 11 percent of the world’s poor lived in Africa and 76 percent in Asia, now Africa hosts 66 percent of the poor and Asia’s share has declined to 15 percent.19 Latin America, breaking loose from protectionist trade policies that lasted into the 1990s, has also seen sizeable decreases in poverty levels, although none as dramatic as in most Asian nations.20
Other data show a correlation between an increase in trade followed by a decrease in human rights concerns. Perversely, data exist that support the opposite conclusion. For example, some studies indicate that there is an increase in indentured child labor in some countries with fast-rising trade numbers. Other data reveal a decrease in food security in developing nations that keyed agricultural production to exportable commodities, and then suffered from a drop in world prices combined with competition from heavily subsidized imports. There is also evidence of the splitting of families by Mexican women forced to travel to squalid shantytowns adjoining the border assembly-for-export industry (maquiladoras) that mushroomed to meet the demand created by Mexico’s signing of the NAFTA. What we cannot do, and herein lies a principal premise of the trade and human rights debate, is demonstrate purposeful correlation, much less integration or even coordination, between human rights policies and international trade policies.
Professor Powell elsewhere has discussed the “splendid isolation”21 that characterized the parallel growth of modern human rights and global trade law beginning in the mid-1940s.22 The same atrocities of the Second World War inspired rapid evolution of both legal disciplines. The UN’s Universal Declaration of Human Rights and the World Trade Organization’s General Agreement on Tariffs and Trade, each of which continues as the key governing document in its field, celebrated their fiftieth anniversaries in the same year at the end of the last century. Each document also has inspired an unending series of negotiations leading to increasingly broader jurisdictional reach, a complex web of regional and global institutions, and ever-tighter limitations on state action.
Yet, as their subject matter increasingly overlapped and their dependency progressively tightened, treaties in these two fundamental fields of human endeavor gave, with rare exception, no hint of the existence of the other and even less do they show a coordinated effort by the states negotiating them to make the world not only a richer, but a better place.
The exceptions are protection of the environment, identified early on as directly intersecting with trade rules, and promotion of public health. Ironically, the result of recognition in these two phases of the trade and human rights intersection has been far from euphoric. In fact, the episodic, often pro forma mention of the environment in trade treaties and of trade in multilateral environmental agreements has led to direct conflict in treaty terms, as compared with simple indifference to other human rights areas. For example, as we discuss in section 7.5, if a WTO Member bans imports of genetically modified soybeans for health reasons based on incomplete evidence, its action likely would be consistent with the Convention on Biological Diversity’s Protocol on Biosafety, but likely would be inconsistent with the WTO’s Agreement on Sanitary and Phytosanitary Measures.
Origin of This Volume
Our inspiration and felt necessity for this volume proceeds from our research and student interactions while separately teaching law courses on human rights and on international trade and, especially, from our co-teaching over the years of courses that explore the intersection of these disciplines. While we hope that it will be of interest to any student of this intriguing intersection, the book is designed in particular to serve as the text for a trade and human rights seminar or course that explores the premises of the trade and human rights debate from the perspectives both of free trade advocates and of human rights activists, with the purpose of imparting a better understanding of the rationales for both systems of law and the ways that each is—or should be—attempting to avoid a clash that could have profound impact on the protection of human rights and on the global market.
The book examines in depth human rights policies involving conscripted child labor, sustainable development, promotion of health, equality of women, human trafficking, indigenous peoples, poverty, citizenship, and economic sanctions. We hope to aid the reader’s understanding of our message through actual examples from the thirty-five nations of the Western Hemisphere. We close this study by looking to the future. Our focus on the myriad intersections of these fields in the Americas aims to recognize weaknesses and potentials in each so that conversations can be had between the trade and human rights borderlands. Our goal is nothing less than an integrated regional trade order seeking both richer and more citizen-sensitive nations.
The 2005 Human Development Report of the United Nations glumly summarizes the blessings and curses of international trade:
Trade is at the heart of the interdependence that binds countries together. That interdependence has contributed to some highly visible human development advances, enabling millions of people to escape poverty and share in the prosperity generated by globalization. Yet many millions more have been left behind. The costs and benefits of trade have been unevenly distributed across and within countries, perpetuating a pattern of globalization that builds prosperity for some amid mass poverty and deepening inequality for others. The rules of the game are at the heart of the problem. Developed country governments seldom waste an opportunity to emphasize the virtues of open markets, level playing fields and free trade, especially in their prescriptions for poor countries. Yet the same governments maintain a formidable array of protectionist barriers against developing countries. They also spend billions of dollars on agricultural subsidies. Such policies skew the benefits of globalization in favour of rich countries, while denying millions of people in developing countries a chance to share in the benefits of trade. Hypocrisy and double standards are not strong foundations for a rules-based multilateral system geared towards human development.23
Viable alternatives exist to create structures and craft dialogues to bridge a seemingly impassable divide toward an era of splendid integration of human rights and trade. We ask the reader to see with new eyes the many intersections of human rights law and trade law that the chapters that follow will describe in detail. Our hope is that by unearthing purposeful linkages between trade and human rights, this project will cause decision-makers to recognize their indivisible nature and begin to build the bridges and close the chasms that a half century of unconscionable isolation has created.
We will share our personal story to underscore the necessity and desirability of building those bridges across the present trade and human rights divide. It also drives home the seemingly insurmountable challenge that this task presents because of the differences in language, processes, and cultures in the two fields. This volume is, in a way, a narrative of the authors’ personal journey in challenging the splendid isolation of trade and human rights. We first met in the spring of 2000 at the University of Florida Levin College of Law’s First Annual Law and Policy in the Americas Conference, sponsored by the college’s Center for Governmental Responsibility. Berta had just joined the faculty to focus on international law and international human rights; Steve had just left the U.S. Department of Commerce after a distinguished career as the federal government’s principal legal adviser on the unfair trade laws and had been named the director of international trade law programs at the college. After introductions, Berta started chatting with Steve about the exciting international programs at the law school and suggested collaborating in some way to do work on the human rights and trade intersection. Although our paths crossed at faculty events over the coming year, we did not discuss the subject further until Berta, at the Second Annual Conference, again suggested a project on the myriad connections between trade and human rights. Others joined the conversation and the topic moved into the background for another year. At the Third Annual Conference, Berta again talked with Steve about a holistic approach to both of their fields of law. When she took a breath, he stated that “you cannot simply jumble several unrelated topics together and call the result a ‘holistic’ approach; trade law and human rights law are separate fields for good reason.” In addressing the “holistic” nature of law idea, Steve simply said, “Berta, your proposal is enigmatic.” And so began the real conversations that have taken us to the journey on which we have embarked to produce this joint volume, delayed because of the intrinsic reluctance of Steve’s trade law schooling to allow other disciplines to inform its progress.
This time we did talk more, and the following year we taught a trade and human rights seminar together for the first time. We have modified our materials and our format as our perspectives converged. The course, since its second offering, has been cross-listed with the Center for Latin American Studies and the Center for Women’s Studies and Gender Research as well as the business school. The cross-disciplinary enrollment and consequent discussions have enriched the course for students and faculty alike. Imagine the Peace Corps volunteer talking to the aspiring CEO or Wall Street lawyer about issues such as labor rights, environmental degradation, cultural sensitivity, and indigenous rights to medical knowledge. The interplay of disciplines is rich in cross-tested learning.
To be sure, the journey has not been a simple one. We hit many bumps in the road, ranging from materials for the course to what might be realistic solutions to the myriad problems confronted in the advance of trade. These problems included use of and compensation for traditional knowledge to aid humankind, the role of culture, the role of trade in women’s subordination, and so on—the discussions were endless. Sometimes these discussions took place in the classroom, as a result of which, one year, students started calling us Mom and Dad and referring to the conversations as “the folks are having another one of their arguments.”
The discussions and learning are ongoing. More than once Steve expressed consternation at Berta’s generalized solutions of “conversations with all participants around the table.” He would say, “We need concrete ideas, concrete solutions, what can trade do? What does trade offer as a possible solution to the problem?” So just as Steve has become holistic, Berta has become more practical. The end result is an enrichment of both.
The significance in sharing our personal journey is that we both are passionate believers in the connection of our respective fields; we believe that they are mutually enriching—a reality we hope this volume underscores for both human rights and trade advocates. The beautiful irony in this narrative is Steve’s transformation from considering as weird the holistic everything’s-connected approach to a full embrace of that approach in the endeavor to make trade’s promise of prosperity a reality for all. This expansion in the trade horizon suggests that it is not lack of care or disregard for human rights that keep the fields separate, but rather trade officials’ isolation in their view of trade’s reality and human rights advocates’ view of trade as the irredeemable spoiler. We hope that this volume works to bring the advocates of both fields together so that they can utilize the idealism of the human rights model and the pragmatism of the trade model to broaden the reach of the economic well-being that, to date, the systems in their splendid isolation have brought to too few.
In order to attain this admittedly ambitious end, we have structured the book so that advocates, professionals, and academics in all fields, as well as students, may benefit from it. The first three chapters are introductions to the governing law in the fields that we study. The chapter after the present introduction is a basic primer on international law—the umbrella under which both trade law and human rights law fall. The second and third chapters are introductions to trade law and human rights law, respectively. Experts in any of those fields may want to skim or skip them and start with chapter 4, which presents an overview of the intersections of human rights and trade, including principles that provide insight as to the hierarchy in the ordering of their sometimes conflicting norms.
In chapters 5 through 13, we focus on specific intersections of trade and human rights, some more evident in popular discourse than others. For example, chapter 6 on the environment, chapter 8 on labor, chapter 10 on women, and chapter 11 on indigenous populations cover the more visible trade intersections, brought to the public eye mostly by civil society protests at meetings of trade ministers and the World Bank. Because most people learn of the clash of these subjects of human rights law with trade rules only through these outcries, popular opinion is that integration of these intersections faces an insurmountable divide. In this volume, we show how states can deploy rules of the powerful trade system to continue the path of economic prosperity while also improving the human condition. Not all solutions are ideal, but we have used Steve’s knowledge of the instruments and instrumentalities of trade to recommend viable beginnings to the splendid integration that this volume seeks.
Chapters 5 on citizenship, 7 on health, 9 on trafficking, 12 on poverty, and 13 on democracy touch on intersections that are less evident, perhaps because trade’s influence on these human rights is more difficult to capture in a two-second sound bite with a poignant image that can be carried on television stations around the globe. For example, trade is transforming the very idea of citizenship as a method of participation in the decision-making of the government. Trade is empowering massive transnational entities that, because of their purchasing power, can sway government policy on employment and the environment. Similarly, the concept of democracy, when analyzed in the framework of economic rights, entails much more than the ballot box. Trade in the context of democracy can be a double-edged sword. While the West has deployed its economic power to insist on democracy, sometimes taking a narrow view that over-simplistically equates democracy with elections, it has in so doing eroded democracy, wearing thin the social safety net that the most marginalized sorely need. As the chapter on poverty shows, trade’s promise of prosperity has not been realized for all, requiring measures to be adopted to ensure that those who have fallen through the cracks are also afforded some opportunity. Lastly, the trafficking chapter shows how trade, if carried out with blinders on, as a field in a vacuum, can unwittingly contribute to the most egregious of human rights abuses.
Chapter 14 on economic sanctions explains how a tool to enforce human rights sometimes causes human rights deprivations. This ostensible contradiction occurs because of the primacy given by the North/West to civil and political rights over social and economic rights. Inevitably, as in the case of Cuba, this divide creates apparently insurmountable conflicts.
In our conclusion, chapter 15, we try to pave the way for the future, where human rights and trade coexist as parts of a whole and thus must be cognizant and supportive of each other. Trade and human rights cannot possibly be perceived as isolated, as they have been for too long. Yet, the integration must be purposeful and proactive so that trade’s powerful reach can work not only for economic expansion and well-being but also for the flourishing of human rights. Well fed, healthy, educated, and fairly compensated workers are good for business. Trade can be good for people; people are necessary for trade. Social, cultural, economic thriving of the individual ought to be one of the focal points of trade—the best result trade can offer to confirm its promise of prosperity.
