-- Basil Fernando, Executive Director, Asian Human Rights Commission

At first glance, the title of this paper may seem rather strange. Why speak of a special relationship between human rights and trade and investment?  Human rights is a holistic concept having equal bearing on all aspects of life, and therefore it is unusual to speak of a relationship between human rights and any specific arena of life, such as economics, politics or aesthetics. Human rights has an equally valid relationship with all such fields.

The core of any human rights concept is the right to life. The right to human life is so intrinsically connected with the survival of all forms of life, that human rights today is understood as a very comprehensive concept. Rather than the perspective that humans are the masters of the universe, the human rights concept today is based on the opposite understanding: the value of every being (and/or object) and every action must be measured by its relevance to the preservation and enhancement of life itself. No master stands above this principle.

The cornerstone of the human rights concept is the recognition that power tends to corrupt, and that absolute power corrupts absolutely. This implies that every form of power should be bound and controlled. The final boundary that no power should be allowed to cross is that of human rights. The covenants on Civil and Political Rights and Economic, Social and Cultural Rights and numerous other conventions and declarations adopted by the international community through the mediation of the United Nations have expressed various aspects of this boundary. While there will be further development of the exposition of the human rights idea, the fundamental concept will always remain the same: that no power can legitimately cross the boundary of human rights. The moment an attempt is made to cross this boundary, the attempt becomes not only illegitimate but is seen as contrary to the interest of human beings who are affected by such attempts.

In relation to human rights, power means not only political power but also all other forms of power including economic and social power.  In modern times we are also seeing that economic power can be far superior to political power and can also be separated from political power. Therefore human rights is not only about limits to political power, it also sets limits to every form of economic and social power.

Trade and investment are important economic activities and these activities have a bearing on all aspects of life in a given society. In fact in terms of modern day trade and investment, the areas of influence are not just a particular locality or even a national boundary but global society at large.

The question then is how such activities should be measured from the point of view of the enhancement and improvement of human life. From the point of view of human rights, such enhancement and improvement cannot be measured only from the point of view of those who are engaged in such activities. This being the case, the measurement clearly cannot consist of whether the material wealth of the traders and the investors was improved as a result of their activities. The real measurement is whether the quality of the life of everyone in a given community has been enhanced and improved. Negatively, this would mean that any diminishment or deterioration of the quality of life of the community would amount to a violation of the basic human rights of the people whose lives have been so affected.

How then do we measure the diminishment and deterioration of the quality of life?  These measurements have been written down by the international community through the Universal Declaration on Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), all of which have been further elaborated upon by other covenants and conventions. From a human rights point of view, the role of trade and investment should be to improve the rights of everyone, both in the area of civil rights and also in the area of social economic and cultural rights. [1]  The question of how trade and investment could diminish or deteriorate human rights as enshrined in these basic documents, must then be asked. Can it not be presumed that all trade and investment by their very nature, enhance and improve such basic rights? Closer examination will show that such a presumption is flawed.

In all civilizations there has been the distinction between what may be called good trade and bad trade, or legitimate trade and illegitimate trade. Also, over a period of time, certain things that were initially considered a part of legitimate trade (but not good trade), have been subsequently recognized as illegitimate trade. The slave trade was one such example. There was a long and protracted struggle to gain the recognition that slave trading offends the very basic nature of human beings and that it should be universally condemned. The struggle to eliminate the slave trade was one of the foundational struggles that gave rise to the concept of human rights as we understand them today.  Thus the distinction between what may be acceptable as legitimate trade and what is not, is a core element of the human rights heritage.

In modern times we speak of drug trafficking and the trafficking of human beings.  The word 'trafficking' is in fact a substitute for the word 'trade', but what it implies is the same: the trading of illicit drugs and human beings. Quite a considerable amount of human rights discourse, especially in the recent decades, has been devoted to this subject.  The idea of women's rights and children's rights in particular, as part of human rights, comes from such discourse. There have been various types of sales and purchases relating to women and children, which have been carried on for centuries, sometimes even having legitimacy. The discourse that is occurring on this subject will also show that there is nothing sacrosanct in trade in itself. There can be bad trade and very harmful forms of trade.

Thus from a human rights perspective, not only is it legitimate to distinguish harmful trade from beneficial trade, but it is crucial. However, there are some difficult problems surrounding such distinctions. For example, trading in arms is legitimate from a legalistic point of view. There are many serious challenges though, to such a legalistic point of view; the sale of arms to private citizens is illegal in many countries while in the United States of America possession of arms by private citizens has been claimed as a moral right. In fact, the very accusation of double standards relating to human rights arises around controversies such as this.

It is important that these controversies be placed within the perspective that human rights, as enshrined in the Universal Declaration on Human Rights and the two subsequent covenants  (ICESCR and ICCPR), are universal and indivisible. Within the human rights field there is no longer a controversy on this matter, with the Vienna Declaration of 1993 having resolved any doubt on the matter. The practical implication then, is that where there is a conflict between trade, investment and human rights, human rights considerations should be given priority over considerations relating to trade and investment. Unfortunately, in most instances what takes place is the very opposite. The considerations relating to trade and investment are given pre-eminence, despite whatever consequences they may have on the human rights of the people who are directly affected by the consequences of such trade and investment.

It is no longer under dispute that bad economic practices can lead to famine, hunger and other adverse consequences to the population. The work of Amartya Sen in this regard is well known and acclaimed. That the reason for famine is not necessarily the lesser availability of food but the lack of the means by which the people are able to buy food, is a premise that also seems to be well accepted now. The lack of means with which to buy food means a lack of entitlements. Thus, people may starve, suffer from malnutrition or suffer from other forms of acute poverty due to the lack of entitlements. The direct cause of a lack of entitlements are the problems arising from economic and social factors. Thus, as Amatya Sen puts it, "In poverty, the problem is not lack of assets, these are actually symptoms. The problem is actually with the capabilities."

In the language of human rights, a lack of entitlements means the deprivation of the means to achieve basic human rights. Therefore in critically examining the relationship between trade, investment and human rights, the important question to be answered is whether particular trade or investment practices enhance the entitlements of all peoples, or if these practices in fact reduce their entitlements.  In considering this, what happens to the lowest in the economic strata as a result of such trade and investment is the yardstick, because those who are the economically weakest are the ones likely to suffer and lose their entitlements before any others. Keeping this in mind, the following items may be considered.

a. Will some people be unemployed as a result of a particular form of trade or investment and if so, what alternatives are provided for such people to retain their entitlements?

b. Will some people be dislocated from their usual habitat as a result of the introduction of any particular practice of trade or investment?  If so, what alternatives are provided for such people to retain their entitlements?

c. Does the introduction of such trade or investment practices lead to the enhancement or deterioration of the people's right to organize themselves, to form trade unions and to express themselves freely?

d. Is one of the pre-conditions for the introduction of any trade or investment practice the removal of basic welfare measures such as facilities for education, health and the like?  If there is any such depravation of existing entitlements, what is being envisioned to undo such disentitlements?

e. Does the introduction of new trade and investment require changes in the political system that are more in favour of totalitarian practices, as opposed to greater democratic practices?

f. Will the new trade and investment practices require a greater use of state-sponsored violence such as martial law, national or internal security laws or greater emergency powers?

g. Will the new trade and investment practices lead to the destabilization of a given society?  If so, will it lead to the exacerbation of internal conflicts, such as religious, ethnic and minority conflicts?  Will a state of anarchy be likely to spread due to such trade and investment practices, spreading a situation of collapse of the rule of law and the basic institutional framework of justice?

h. Is there a link between the new trade and investment practices and the increase of corruption?

Anyone familiar with the situation in many Asian countries in recent decades will not find such questions irrelevant. In fact they are the burning questions of most societies.  Finding solutions to these questions is an integral part of human rights work. Many of the human rights activities including the ratification of international covenants and conventions and also human rights education, are undermined due to the instability that is prevalent in various countries and the serious problems regarding the rule of law arising therein.

The most important question that arises out of all this from a human rights point of view, is the concept of the implementation of human rights as required by the common Article 2 of the ICCPR [2] as well as the ICESCR. This requires all state parties to provide legislative, judicial, administrative and other mechanisms to implement human rights.  The question in terms of trade and investment would be whether the state parties strictly implement the obligations of the common Article 2. The state has to protect the interests of all.  This means that while safeguarding the interests of trade and investment, the state is under the obligation to ensure that these interests will not adversely affect the interests of others. To do that, the state must provide strong mechanisms for the protection of human rights as required by the common Article 2 of the human rights covenants. This Article provides the basic conceptual framework to deal with this issue: the protection of human rights must be enshrined in local legislation in an effective manner with the legislation being enforced. The enforcement of such legislation requires that investigations into violations of rights are done through proper institutions such as a functioning police force and corruption control mechanism - for example, the Independent Commission Against Corruption (ICAC) of Hong Kong. The judiciary must be independent and competent with powers to intervene in the instances of human rights violations. If Article 2 is effectively implemented, it will give rise to a climate where the interests of trade and investment can be properly balanced with the interests of all citizens.


Endnotes

1. For detailed commentary on human rights provisions relating to international trade, investment and finance policy and practice see the paper 'The Realization of Economic, Social and Cultural Rights - Commission On Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fifty-first session, Item 4 of the provisional agenda. [Back to contents]
   
2. See the open letter to the global human rights community: Let us rise to the Article 2 of the ICCPR, article2, Volume 1 No. 1 February 2002 - http://www.article2.org/mainfile. [Back to contents]

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Published on: 2004-06-09 (924 reads)