Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann 5. Conclusion Ernst-Ulrich Petersmann and other like-minded commentators have responded to the end of the Cold War and the ascendancy of a form of neo-liberal economic orthodoxy by calling for a fundamental realignment of international human rights law in order to give appropriate priority to what they call `economic liberties'. Petersmann has made an important and distinctive contribution to the debate by suggesting that the entrenchment of these values can best be done at the international level, using the well-established techniques of international law, and by urging that the principal locus of action should be the international economic institutions such as the WTO and the IMF rather than the UN's human rights bodies. If one takes an ordo-liberal starting point116 then these proposals, which would have the effect of prioritizing property and free trade over virtually all other values and would do so by giving them the imprimatur of human rights, make perfect sense. There is also a powerful instrumentalist motivation as Petersmann acknowledges when he says that `human rights law offers WTO rules moral, constitutional and democratic legitimacy that may be more important for the parliamentary ratification of future WTO agreements than traditional economic and utilitarian justifications'.117 Petersmann is in fact far from being the first to advocate a human right to free trade. In his 1944 State of the Union address, President Franklin D. Roosevelt put forward an economic bill of rights which included: `The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.' 118 Ironically, when the American Law Institute subsequently adapted the long list of economic and social rights proposed by Roosevelt for possible inclusion in the UDHR they omitted this right but retained virtually all of the standard economic and social rights that were subsequently recognized in the relevant provisions of the Universal Declaration.119 Moreover, Petersmann's proposal to privilege the right to property recalls the arguments put forward over the years by Richard Epstein, who has long advocated an interpretation of the fifth amendment to the US Constitution (the so-called `takings clause' which prohibits the taking of private property `for public use without just compensation'), which would give far greater protection to property rights than they currently enjoy and would result in the overriding of many of the social and labour rights which currently exist under US law.120 In these respects, Petersmann's proposals are hardly novel. The principal problem with his approach, however, is that it is presented as though it were simply a logical development of existing policies, rather than representing a dramatic break with them. In a form of epistemological misappropriation he takes the discourse of international human rights law and uses it to describe an agenda which has a fundamentally different ideological underpinning. Thus, his proposals are presented as: involving a relatively minor adaptation of existing human rights law; amounting to little more than the transposition of a balanced and proven EU policy on human rights and trade; being entirely consistent with widely accepted conceptions of constitutionalism and the rule of law; being fully compatible with the recognition of a wide range of social rights; and being a straightforward application of Kantian principles. But as the preceding analysis has sought to show, none of these characterizations is accurate. The proposed agenda is in fact a revolutionary and radical one which, if adopted, would have far-reaching consequences for the existing international human rights regime as well as for the balance of values reflected in the vast majority of existing constitutional orders. The most fundamental change is that human rights would, despite all of the Kantian rhetoric, become detached from their foundations in human dignity and would instead be viewed primarily as instrumental means for the achievement of economic policy objectives. Individuals would become the objects rather than the holders of human rights. While their broader range of human rights would continue to be protected through ineffectual institutional arrangements, they would become empowered as economic agents acting to uphold the WTO agenda. More specifically in terms of changes, a very large number of national constitutions, only a handful of which recognize anything approaching a right to free trade, would have to be amended. International human rights instruments, which have proved notoriously difficult to amend, would have to be substantially revised if the rights to property, contract and freedom of trade are to be recognized and made judicially enforceable in the way Petersmann envisages. Economic actors, such as corporations, would be empowered far beyond existing practice to invoke the protection of human rights instruments. The various limitations upon the right to property, which have been prominent in the application of that right by international human rights organs, would be dramatically curtailed.121 At the political level, the reluctance to incorporate any human rights dimension within the WTO framework, a position which the vast majority of governments have consistently manifested in that context, would need to be overcome. Finally, there is the paradox implicit in a project which proceeds on the basis of the constant reiteration of the importance of democratic values being achieved through measures designed to put the principle of free trade, repackaged as a human right to be enforced by international economic agencies, effectively beyond the reach of all domestic constituencies. Rather than waiting for these radical changes to occur within our lifetimes it would seem to be more productive to pursue the debate over the appropriate relationship between trade and human rights in two directions. The first, which focuses on the ways in which the two separate bodies of law can best be reconciled and made complementary to the greatest extent possible, is already well under way (the `trade and ...' debate), although Petersmann's writings show a reluctance to place much store upon this approach. The second is to begin a more sustained and critical debate that focuses upon the agenda that Petersmann describes, but does so in a systematic and intellectually open way which acknowledges the underlying assumptions and imposes a high scholarly burden of proof on the proponents of the different positions. Petersmann is correct when he says that the human rights community has so far been reluctant to take such proposals seriously and perhaps one very constructive result of his many writings will be to compel the sort of debate which is required. But it cannot be based on flimsy assertions such as those put forward by another commentator who has also called for `economic freedoms, including property and contract rights [to] be placed at the top of a new agenda for international human rights' and asserts that empirical studies vindicate the efficiency of such an approach in order to guarantee `wealth, social stability and civil rights'.122 Human rights proponents, on the other hand, can no longer dismiss the strong version of claims made on behalf of property rights and free trade without engaging with them in a more convincing and incisive manner. 116 Ordoliberalism insists on the importance of an appropriate constitutional and regulatory framework to provide the setting within which a private law system premised on private property, contractual freedom, open markets, etc. can flourish. See generally Joerges, `The Science of Private Law and the Nation State', in F. Snyder (ed.), The Europeanization of Law: The Legal Effects of European Integration (2000) 47. 117 See Petersmann, in CMLR, supra note 3, at 1377. 118 Eleventh Annual Message to Congress (Jan. 11, 1944), in J. Israel (ed.), The State of the Union Messages of the Presidents, Vol. 3 (1966), 2875, at 2881. 119 American Law Institute, `Statement of Essential Human Rights', UN Doc. A/148 (1947). 120 R. Epstein, Takings: Private Property and the Power of Eminent Domain (1985). For a critique in relation to labour law, see Schwartz, `Property Rights and the Constitution: Will the Ugly Duckling Become a Swan?', 37 Am. U.L. Rev. (1987) 9. 121 Despite the extensive limitations upon the right to property permitted under existing human rights law David Kennedy has lamented `the overwhelming strength of the "right to property" in the human rights vocabulary'. Kennedy, `The International Human Rights Movement: Part of the Problem?', Eur. Hum. Rts. L. Rev. (2001) 245. 122 McGinnis, `A New Agenda for International Human Rights: Economic Freedom', 48 Cath. U.L. Rev. (1999) 1029, at 1032-1034. In a brief history of international human rights law (at 1030) the author manages to present a remarkably revisionist account of the drafting of the UDHR.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Tuesday, October 15, 2002 07:01AM