rights side, Article 103 of the UN Charter gives that document primacy over any conflicting other international obligation of a UN Member. The Charter obligates Members “to take joint and separate action” in cooperation with the United Nations to promote human rights and establishes objectives that run the gamut of human rights, including higher living standards and freedom from racial and sexual discrimination. The Charter does not itself resolve the hierarchy question, however, because the Charter leaves specific rules to the Universal Declaration and to human rights treaties.
Both the United Nations and the WTO thus recognize the potential for conflict, but neither attempts specific solutions if conflict occurs. If the contract itself—here the treaty—does not clearly resolve the conflict, how should we attempt to reconcile conflicting treaties? That we are faced with an “equal legitimacy” of trade and human rights norms places a premium on purposeful coordination of both sets of norms with those of the other field.42 The primary sources of international law are treaty and custom, the former of which binds only those who consent to be bound by signing the treaty, the latter binding on all who do not expressly contract out of the custom.
As we examine the many aspects of the human rights and trade intersection in later chapters, it will be useful to identify which human rights norms have been so generally accepted as to constitute customary international law. Some are clear: for example, genocide, slavery, systematic racial discrimination, and torture.43 Others, such as a living wage or freedom of association, trace their source solely to human rights treaties, while political philosophy underlies some concepts. Even if the human rights norm in question clearly is customary, and thus binds all, resolution of conflicts in actual cases usually requires additional steps.
We will ask repeatedly in this volume whether the intersection between trade and human rights must, of necessity, be characterized by conflict and indifference, as well as the consequences for the success of policies in both fields if the answer is yes.
4.4 Indispensable Role of Government
As Professor Powell has observed, trade rules cannot “directly inject rules-based governance into a country.” Observance of human rights for their citizens is an essential and irreplaceable role of national governments.44 As the leading advocate of “fair trade,” Oxfam, has succinctly observed, “Trade has the power to create opportunities and support livelihoods; and it has the power to destroy them.”45
Negotiators can structure trade agreements to create the economic opportunities sought, but national governments will succeed in creating societies committed to the rule of law and human rights in general only if they are prepared to intercede in the market to shape the effects of the economic growth created by trade.46 Trade, and capitalism in general, create the menu for improving social benefits, but both are inherently unstable and insensitive to unfairness. Without oversight and regulation, governments will squander trade’s opportunities for the advancement of human rights.47 This thesis is in tension with one of globalization’s premises: diminished government presence in the daily lives of civil society through privatization of government-owned infrastructure and lessened regulation.
In all cases, the essential concern with the hierarchy is the enjoyment of trade benefits without ignoring or trumping human rights norms. In that regard, it is important to emphasize that the WTO does not come into the world in a vacuum; there are existing norms—some domestic and some international—in the world that it inhabits. Thus, the agreements made pursuant to the WTO not only have to conform with trade’s premises, but also to those other domestic and international norms with which they coexist. This is not a novel concept. In Hartford Fire Insurance Co. v. California, the U.S. Supreme Court confronted the issue of whether, under international law, U.S. antitrust law could reach the conduct (conspiracy to set rates) of London reinsurance companies that had adverse effects in the United States. Although that case presented an issue of jurisdiction, it is instructive. The conduct in which the insurance companies engaged was legal in London, but it had effects in the United States where the same conduct would be illegal. The English norms were not in direct conflict with the U.S. norms; the insurance companies could have complied with both. They chose not to do so. Rather, they purposely opted to act the way they did, which breached U.S. antitrust law. Thus, the Court concluded, U.S. courts could, consistent with international law, exercise jurisdiction over the acts carried out in London, and the insurance companies were found liable.
This scenario is similar to the trade/human rights tension. Entities can enter into agreements pursuant to the WTO; yet they also must comply with human rights norms. If they enter into agreements that do breach those norms, then the entity that breaches the norm is held responsible to all its obligations.
5
Who Belongs, Who Rules
Citizenship—Voice and Participation in the Global Marketplace
5.1 Overview
Globalization is changing the nature of citizenship. What used to be considered a legal status now becomes more of a social bond. What used to be a particular relationship of an individual to the state may now be a relationship of an individual to multiple states. A status that once defined national belonging may now signify marginalization. Moreover, the power that individuals derived from citizenship to define the political, social, and cultural landscape now has been shifted to corporate entities whose loyalties lie in economic well-being as defined by the bottom line. This chapter will explore these new meanings, and attendant tensions, of citizenship in an era of globalization.1
5.2 Human Rights Framework
(A) Normative Setting
The concept of citizenship is well-grounded in the human rights documents. These documents ensure a right to a nationality,2 the right of members of society to the realization “of the economic, social and cultural rights indispensable for his dignity and the free development of his personality,”3 the right to participate in the cultural life of a community,4 self-determination,5 and a citizenship’s right to participate in the government.6
(B) The Development of the Concept of Citizenship
Two different concepts of citizenship—the “legal status” model and the “desirable activity” model7—underlie general understandings of citizenship as a legal, political, and social construct that resonates and has impacts both locally and globally.8 In seeking to identify the framework that defines and delineates citizenship and its attendant rights, privileges, and obligations, some theorists refer to its natural law foundations.9
A classic usage of citizenship identifies groups of persons with shared descent, language, culture, and traditions.10 In this regard, “Citizenship … becomes less an entitlement than a definition … [for p]eople [who] want to know where they belong, and they want to belong to familiar and homogeneous groups.”11
Contrary to such “definition” of citizenship is the view that “the true test of the strength of citizenship is heterogeneity [because] common respect for basic entitlements among people who are different in origin, culture and creed proves that combination of identity and variety which lies at the heart of civil and civilized society.”12 Significantly, some posit that “modern citizenship is inherently egalitarian.”13 A different characterization of modern citizenship is that it does not permit “arbitrary treatment … [yet] acknowledges individuals’ abilities to make judgments about their own lives.”14 Hence citizenship is like “a series of expanding circles” that increasingly includes outsiders.15 Consequently the very concept of citizenship incorporates the ideal of equality. Indeed, many contemporary theorists insist that the concept of citizenship must embrace differences among persons—differences of race, sex, sexuality, ethnicity, and religion, to name a few—and that a new conception of citizenship must be developed
