Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann 1. Introduction Any current bibliography of international legal analyses of the relationship between trade and human rights will be replete with the works of Ernst-Ulrich Petersmann, many of which put forward a version of the argument which is reflected in the article above.1 At first glance it is a highly attractive account. At last one encounters a trade lawyer who embraces enthusiastically and wholeheartedly the human rights agenda! At last an international economic law expert who, in a determinedly interdisciplinary way, integrates philosophy, human rights and economic theory; one who seeks to tame the excesses so noisily decried by the anti-globalization protesters of Seattle and subsequent fame. Petersmann embraces the human rights agenda from within the citadel of international economic law and brings his formidable experience as a former legal adviser in the German Ministry of Economic Affairs, the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) to bear in the name of an approach which would resolve once and for all the seemingly intractable conflicts between trade and human rights which so bedevil the analyses of other authors. `Democratic legitimacy' and `social justice' are both `defined by human rights' and must therefore be embraced by the `global integration law' which is pursued by the WTO.2 But despite his consistent invocation of the discourse of human rights - and contrary to the reader's first impressions as well as to Petersmann's own perception of his work - his approach is at best difficult to reconcile with international human rights law and at worst it would undermine it dramatically. In essence, the result of following the approach set out would be to hijack, or more appropriately to Hayek, international human rights law in a way which would fundamentally redefine its contours and make it subject to the libertarian principles expounded by writers such as Friedrich Hayek, Richard Pipes and Randy Barnett. In light of such a negative assessment it might reasonably be asked whether there is any point in seeking to respond in detail to an analysis with which one disagrees so comprehensively and which, although it has frequently been published before, has drawn so little sustained reaction from other scholars. But there are several strong reasons which argue in favour of a detailed rebuttal of these views. The first is that Petersmann has long been a prominent and respected international trade lawyer and what he thinks is thus potentially influential. The second is that the article which is the principal focus of this reply is not an isolated foray but an encapsulation of views which have been reproduced many times over in the space of well over a decade. Indeed, few academics could have shown such perseverance and determination in working with the same array of materials in the context of so many different analyses.3 This side of Petersmann's work resembles the standard `stump' speech of a politician which contains the same message and relies on the same content time and time again, but on each occasion is delivered in a slightly different form depending on the audience. This fact probably explains why more than one-fifth of the citations provided in the article above are to the author's own previous writings.4 The third is that so few scholars have apparently responded to Petersmann's oft-repeated views. Although the literature on trade and human rights (the latter being interpreted as including labour rights) has burgeoned in recent years,5 remarkably little attention has been given by most of the mainstream writers to Petersmann's thesis. By leaving his thesis only marginally contested there is a significant risk that those who do not have a strong grasp of the complexity of the issues raised by the trade and human rights linkage will assume that his work on this issue enjoys a level of acceptance which it in fact does not. A fourth reason is that Petersmann has to date been reluctant to engage with those few scholars who have been critical of his work. One such example is provided in the article above. Steve Peers has presented a detailed, sustained and measured critique of Petersmann's basic and oft-repeated proposition that there is a freestanding human right to trade.6 Petersmann makes no mention of the Peers article in the two pieces published on the same subject in 2002,7 but it does attract a footnote in the article above. Peers' analysis is dismissed on the grounds that he wants `human rights [to] end at national borders' and is opposed to `constitutional protection' for `the freedom of transnational economic transactions'.8 In fact, Peers endorses neither of those propositions, even implicitly. Petersmann has been similarly reluctant to engage with another critique by Robert Howse and Kalypso Nicolaides,9 who address several important dimensions of his standard analysis. Their critique focuses on his revisionist reading of Kant, his suggestion that governments should entrench free trade rights at the international level despite the fact that the vast majority of them have not treated trade in that way in their domestic constitutions, and his insistence that an approach which ties the hands of governments by putting the priority of free trade out of reach in democratic debate is consistent with the citizen empowerment of which he is so fond. In reply, Petersmann is content to pose a rhetorical question, based on the title of their article, which is designed to dispose of the matter. He asks, without responding: `are there convincing arguments that "constitutionalism" is a "fallacy", and "constitutionalizing the WTO a step too far"?'.10 The final reason for focusing carefully on Petersmann's analyses is that the relationship between human rights and trade is one of the central issues confronting international lawyers at the beginning of the twenty-first century and any proposal which purports to marry, almost symbiotically, the two concerns warrants careful consideration. As George Soros has recently written: `The WTO opened up a Pandora's box when it became involved in intellectual property rights. If intellectual property rights are a fit subject for the WTO, why not labor rights, or human rights?'.11 While Soros opposes such a development there is an increasing number of authors who have called for the `constitutionalization' of the WTO and who consider that the inclusion of human rights within its mandate would help to overcome the democratic deficit from which it currently suffers. Petersmann's article thus compels a more systematic evaluation of these different proposals and lays out some of the principal arguments put forward by the proponents of WTO constitutionalization. 1 Petersmann, `Time for a United Nations "Global Compact" for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration', 13 EJIL (2002) 621 [hereinafter Petersmann]. 2 Ibid, at 624. 3 The (certainly incomplete) list of relevant publications of which I am aware includes the following: E.-U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991), Ch. VII; Petersmann, `National Constitutions, Foreign Trade Policy and European Community Law', 2 EJIL (1993) 1; Petersmann, `National Constitutions and International Economic Law', in M. Hilf and E.-U. Petersmann (eds), National Constitutions and International Economic Law (1993) 3; Petersmann, `Constitutional Principles Governing the EEC's Commercial Policy', in M. Maresceau (ed.), The European Community's Commercial Policy after 1992: The Legal Dimension (1993) 21; Petersmann, `Constitutionalism and International Organizations', 17 Northwestern J. In'l L. Bus. (1996) 398; Petersmann, `How to Constitutionalize the United Nations? Lessons from the "International Economic Law Revolution"', in V. Götz, P. Selmer and R. Wolfrum (eds), Liber Amicorum G. Jaenicke (1998) 313; Petersmann, `How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society?', 20 Mich. J. Int'l L. (1999) 1; Petersmann, `Legal, Economic and Political Objectives of National and International Competition Policies: Constitutional Functions of WTO "Linking Principles" for Trade and Competition', 34 New Eng. L. Rev. (1999) 145; Petersmann, `Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?', 31 NYU J. In'l L. & Pol. (1999) 753; Petersmann, `From "Negative" to Positive "Integration" in the WTO: Time for "Mainstreaming Human Rights" into WTO Law?', 37 CMLR (2000) 1363; Petersmann, `The WTO Constitution and Human Rights', 3 JIEL (2000) 19; Petersmann, `Human Rights and International Economic Law in the 21st Century', 4 JIEL (2001) 3; Petersmann, `Time for Integrating Human Rights into the Law of Worldwide Organizations', Jean Monnet Working Paper of New York University School of Law 7/01 (2001); Petersmann, `European and International Constitutional Law: Time for Promoting "Cosmopolitan Democracy" in the WTO', in G. de Búrca and J. Scott (eds), The EU and the WTO (2001) 81; Petersmann, `International Activities of the European Union and Sovereignty of Member States', in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (2002) 321; Petersmann, `Human Rights in European and Global Integration Law: Principles for Constitutionalizing the World Economy', in A. von Bogdandy, P. Mavroidis and Y. Mény, European Integration and International Coordination: Festschrift für C. D. Ehlermann (2002) 383; Petersmann, `Constitutionalism, International Law and "We the Peoples of the United Nations"', in H.-J. Cremer (ed.), Tradition und Weltoffenheit des Rechts: Festschrift fFCr Helmut Steinberger (2002) 291; Petersmann, `Economics and Human Rights', in F. Abbott and T. Cottier (eds), International Trade and Human Rights (2002, forthcoming). 4 Nineteen of 85 footnotes are either wholly or partly self-referential. 5 Gabrielle Marceau has identified the principal recent analyses in her article `The WTO Dispute Settlement and Human Rights', 13 EJIL (2002, forthcoming), at note 1. 6 Peers, `Fundamental Rights or Political Whim? WTO Law and the European Court of Justice', in G. de BFArca and J. Scott (eds), The EU and the WTO (2001) 111, at 123-130. 7 See supra note 3. 8 Petersmann, at 644. 9 Howse and Nicolaides, `Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too Far', in R. Porter et al. (eds), Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium (2001). 10 Petersmann, at note 78 and accompanying text. 11 Quoted in Stiglitz, `A Fair Deal for the World: A Review of 93On Globalization94 by George Soros', NY Rev. Bks, 23 May 2002, at www.nybooks.com/articles/15403.
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