by James Harrison. Portland: Hart Publishing, 2007. 292 pp. Cloth $105.00/£50.00. ISBN: 9781841136936.
Reviewed by Wesley T. Milner, Department of Law, Politics and Society, University of Evansville. Email: wm23 [at] evansville.edu.
In this age of rampant integration, much has been written about the increasing presence of international organizations such as the International Monetary Fund, International Bank for Reconstruction and Development (World Bank) and the World Trade Organization. At least since the violent protests which began in Seattle almost a decade ago, these Bretton Woods institutions have generated much controversy. The WTO, being the latest and arguably most powerful player on this international financial world stage, emerged from the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1995.
During this same period, numerous scholars have tackled the thorny and complex issues surrounding human rights, especially in relation to the world economy and globalization. Much of this has focused on trade surrounding multinational corporations and the impact on various aspects of human rights (e.g., physical integrity rights, subsistence rights, economic rights, and the like). In an audacious move, James Harrison attempts to answer the very salient question of how the international trade regime actually impacts the realization of human rights.
From the outset, Harrison takes a legalistic approach in pitting the very distinct international trade law against international human rights law. Here, he makes no bones in claiming international trade law can only be viewed as legitimate as long as it fosters social justice. He argues that it is imperative for the WTO to be viewed by its constituents as substantively promoting justice if it is to continue to develop and even ultimately survive. He concurs with human rights intergovernmental organizations that there should not be a tradeoff between these systems, but rather the WTO should employ decision-making that insures human rights norms. In this context he does weigh the relevance of other potentially competing organizations, such as various United Nations bodies and the International Labor Organization.
Harrison begins his detailed intersection of these two systems by succinctly discussing the theoretical and historical underpinnings of the international trading system as manifested through the WTO. Two central questions are posed that frame much of the rest of the work: Do WTO procedures provide space for human rights norms or at least not stymie other (better suited) institutions in promoting these objectives? Further, does the opaque nature of WTO legal duties prevent the 151 member states from promoting or protecting human rights?
Chapter Two provides a firm justification for the human rights methodology in analyzing the international trade regime. In adeptly rejecting a number of cultural relativist [*281] arguments, Harrison lays out a legal positivist approach as codified in international legal instruments (e.g., Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and so on). Further, he posits in no uncertain terms the universality and inseparability of economic, cultural and social rights (referred to by some as second generation rights) with civil and political rights (so-called first generation rights).
Chapter Three builds upon the previous chapter to convince the reader that adopting this human rights approach to trade law can move the trading system toward a more socially just scenario. While some human rights promoters are coming to realize that the trade regime could enhance human rights, the reverse has not necessarily been the case. Social justice concerns are rarely considered in WTO deliberations because it is viewed that this approach will hamper consensus on the trade front. Harrison argues that a liberalized, yet regulated trade system can benefit human rights as long as there are safeguards for addressing negative social impacts. Indeed, there may be little alternative to utilizing the WTO apparatus in promoting human rights. In this section, the author provides a succinct but very effective and balanced overview of the potential benefits of trade openness in relation to poverty reduction and development. In essence, the system has to insure that those on the short end of the trade liberalization stick not be stripped of their basic needs (although Harrison does not stipulate what level of basic human needs is required). This is a direct challenge to the welfare economics approach based at least in part on aggregate welfare improvement. Eventually, Harrison forcefully lists four reasons for viewing the WTO through human rights lenses: 1) trade liberalization is not a magic elixir for equitable economic growth; 2) the current WTO system is not an optimal system of free market guidelines; 3) even optimal open markets may not be ideal for human rights realization; and 4) an implicit human rights approach is more likely to bring about market-oriented rather than holistic conceptualization of human rights.
The second part of the book focuses on legal issues in assessing the human rights impact of the trade regime. After laying out the legal framework and methodology for dealing with human rights in the trade law context, Harrison spends the next three chapters (five through seven) illustrating conditionality-based measures (both in multilateral and unilateral situations). Here, one WTO member state makes its own trade with another state “conditional” on the other state’s human rights performance. Though he acknowledges the very contentious nature of using trade restrictions to protect and promote human rights, Harrison provides institutional support (e.g., UN Charter, ILO, Kimberly Process and conflict diamonds, and the like) for such tactics. Although there are some potential limits to a multilateral approach, Harrison saves his most skeptical assessment for the unilateral cases. Here, he feels that individual states may fear retaliation by WTO for employing unilateral actions. Further, conditionality in regional trade agreements and generalized systems of preferences may lead to fragmentation of international standards. [*282]
Chapters Eight and Nine bring in compliance and cooperation-based trade measures employed to address human rights deficiencies. Here, the effectiveness of the Office of the High Commissioner of Human Rights (OHCHR) as well as the issue of Trade Related Aspects of Intellectual Property Rights (TRIPS) and access to pharmaceuticals in developing countries are examined. Although there are mechanisms in WTO agreements for addressing human rights, the TRIPS and access to medicines debate (specifically in South Africa and Brazil) expose the obvious and fundamental differences between human rights and international trade law. Indeed, while there appears to be a fragile consensus that dire public health issues like HIV/AIDS trump intellectual property rights, there is still great division as to how (and to what degree) these theoretical ends should be achieved.
The last section of the book proposes strategies for protection and promotion of human rights in international trade law. Harrison correctly posits that different aspects of human rights need different treatment under international trade law, and that attempts to circumvent the WTO in relations to human rights is extremely problematic (i.e., we have to work through the existing structure). In that light, very detailed suggestions are laid out in Chapter Eleven, which argue for raising explicit human rights arguments in WTO dispute settlement proceedings. In short, utilizing general exception clauses are seen as the only viable option that can protect the complete menu of human rights concerns at the WTO. He believes that in the very near future we will see increasing test cases before the WTO dispute settlement bodies, forcing the institution to address legal claims based on human rights. Noting that the above is not sufficient, Harrison concludes with four final prerequisites: 1) human rights violations as a result of international trade law must be identified; 2) international human rights norms and obligations must continue to be further specified; 3) more clarity of relationship between the WTO and human rights must be realized so state action will be taken without fear that WTO obligations are being violated; 4) the state-centered trade regime in respect to human rights protection and promotion must be reassessed.
Throughout each of the chapters, Harrison takes great pains to lay out what he will cover, how it relates to the broader subject of promoting and protecting human rights, and concludes with a distillation of the complex issues raised in each section. The work is excellent in merging complex theoretical issues surrounding human rights norms and real-world situations and cases of globalization and increasing trade liberalization and integration. While perhaps a bit pedantic for those readers well-versed in international trade law, it proves somewhat useful for the more general scholar in navigating what might otherwise appear to be an arcane world of the WTO. Having said that, this is not a primer on the WTO, but rather a very detailed and narrow approach (focusing almost exclusively on human rights applications) to this important world body.
© Copyright 2008 by the author, Wesley T. Milner.