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
