by Adam McBeth. New York: Routledge, 2010. 384pp. Hardback. $140.00. ISBN: 9780415486705.
Reviewed by Evan Rosevear, Department of Political Science, University of Toronto. Email: evan.rosevear [at] utoronto.ca.
The concept of inherent human dignity and the concomitant existence of a set of universal human rights are inextricably intertwined with the style of liberal-constitutionalism which seems to have become the “only game in town” with respect to democratic ideals. At the same time, the growing internationalization of trade has fostered global economic growth while limiting, or at least altering, the capacity of states to take actions which give effect to human dignity via the restriction of their capacity to regulate economic activity within their territorial jurisdictions. Although it is clear that international trade and the efficacy of human rights frequently intersect, the bodies of law which govern them are generally viewed in isolation by policy–makers and academics alike. It is the interaction of the legal norms which govern international trade and human rights which this book seeks to understand and recommend integrative interpretive and institutional improvements for, particularly in light of the increasing impact of non-state actors on human rights matters.
In the service of these aims, Adam McBeth advances three complementary arguments. First, the heretofore isolated interpretation of international trade law and human rights law has limited the efficacy of the latter. Second, human rights law could (and should) be integrated with international trade law to provide adjudicative frameworks by which measures aimed at facilitating economic growth through efficient exchange can be balanced against their particular effects on individuals and groups who are, or are likely to be, negatively impacted by such policies. Thus, it could be consistently and transparently determined whether or not specific measures are justifiable and, if so, what remedies or compensatory actions are appropriate. Third, and more radically, human rights law should be considered from the perspective of the rights holders and applied to all those who have the capacity to influence the individual realisation of these rights. In partial defence of this final proposition McBeth points to the seemingly paradoxical requirement that international cooperative regulation ostensibly based on mutual benefit – as he takes international trade law to be – imposes a reverse onus on objections to activities conducted under its auspices premised on their violation of human rights.
The work can be divided into two sections. The first three chapters, comprising roughly a quarter of the work, are primarily concerned with locating and specifying human rights within the broader corpus of international law. To do so, a plethora of cases, treaties, constitutions, and [*297] academic literature are drawn upon to develop a list of 24 human rights which are “norms of customary international law” (p.40). Operating from the perspective that human rights are innate, McBeth references the MAASTRICHT GUIDELINES to develop an understanding of the obligations of non-state actors with respect to international human rights law. According to this framework, States are obliged to: respect (refrain from interference in the enjoyment of the right); protect (prevent interference by third parties in the enjoyment of the right); and, fulfill (take appropriate action toward the full realization of the right) human rights. With respect to non-state economic actors, he contends that: international regulatory entities such as the WTO are bound by legal norms imposed upon them by a community of States, even in the absence of a contemporaneous mechanism for enforcing the obligation directly against the individuals; International Financial Institutions (IFIs) such as the IMF have “an unequivocal duty not to frustrate the realisation of human rights, which effectively equates with a duty to respect human rights” (p.70); and, Multi-National Enterprises (MNEs) “ought to be viewed as being obliged, within [their] sphere of operation and influence, not to violate human rights and to prevent others within [their] control and influence from violating human rights” (p.82). The primary obligation of rights protection and promotion, he concludes, remains with States, but this does not detract from the concurrent obligations of non-state actors.
The second portion of the work is devoted to the in-depth analysis of the primary players of each of the three types of international economic actor he identifies: international-regulatory (the WTO/GATT), IFIs (the World Bank and the IMF), and for-profit MNEs in general. For each type, the primary adjudicative mechanisms and dominant approaches and interpretations of international law are presented and critiqued in reference to both extant literature and the author’s rights framework. In the case of discrepancies, logical interpretive alternatives are offered and the ideational and institutional barriers (or lack thereof) for the integration of human rights law into the extant economically oriented framework are presented. For example, he notes that the general exceptions clause of the GATT specifies a number of purposes for which the “most favoured nation” and “national treatment” principles might be contravened, including the protection of public morals, human life or health, and the conservation of exhaustible natural resources. However, he argues, the generality of these clauses coupled with their possible employment as hidden trade restrictions, has lead to their limited employment and unfavourable treatment within extant adjudicative processes.
A pivotal assumption of the work is that the goals of international trade law and human rights law are not fundamentally opposed, though they do come into conflict. These conflicts, it is supposed, arise in large part because of their different “levels of analysis”: international trade law is concerned with the maximization of efficiency and productive-economic growth at the macro-level, while human rights law focuses on the individual, in particular the maintenance of individual dignity as [*298] codified in the UNDHR, ICCPR, ICESCR, and elsewhere. While one might reasonably disagree with the normative proposition advanced, its development has clearly framed a number of key tensions between international trade law and human rights law, not the least of which is the primary differentiation between the former’s focus on the improvement of the general good as opposed to the latter’s focus on individual well-being. It is here where the true academic value of the work lies. To be sure, there is an important role for prescriptive scholarship, but for scholarship to be a useful and cumulative endeavour it must be conducted in reference to both extant literature and real-world conditions. McBeth has performed admirably within the context of legal scholarship on the matter of international law. However, analogous to one of his principal arguments, there is a need to integrate two bodies of literature which have developed independently of one another in spite of their frequent intersection.
In order to obtain a fuller understanding of how the current disconnect between international trade and human rights laws came to be and how they might be better integrated so as to advance the interests of both, there must be an integration of legal research on the one hand and political science, particularly the study of international relations and – if scholars such as Gourevitch (1978) and Putnam (1988) are to be believed – comparative politics on the other. McBeth compellingly argues that human rights principles manifest in customary international law could be employed to provide a relatively universal content to the various non-economic exceptions within the agreements which govern and seek the liberalization of international trade. In doing so, he provides a step by step analysis which relies heavily on extant adjudication, particularly that of the WTOs dispute resolution mechanisms, as well as the IFIs interpretations of their own mandates. Rather problematically, however, McBeth’s argument takes the law he is describing as exogenously determined. As such, it does not contextualize the current state of international law as a product of ideational factors shaped through the strategic interaction of individual nation-states, economic actors, and interest groups. While it would be naive to reject the discursive and ideational power that international law exercises on both state and non-state international actors, failure to consider the unequal power relations which underpin the origins, functioning, and consequences of the such law and the adjudicative bodies they engender is equally so.
This critique should not be considered an indictment of the work; it is to the author’s credit that he has so fruitfully parsed the disconnect between these two systems of international law and exposed the institutional elements which, intentionally or not, frustrate the advancement of human rights. Moreover, it would be unreasonable to expect such a project as outlined above to emerge from a single work. INTERNATIONAL ECONOMIC ACTORS AND HUMAN RIGHTS should be considered as an element in a broader whole which advances both the social-scientific analysis of international law and the ongoing development of social justice, particularly as manifest in human rights law. What remains to be seen is if the political science [*299] community will respond to this cogent articulation of the legal and institutional factors which constrain the advancement of human rights and their incorporation, along with international trade law, into a holistic body of international law that facilitates the aims of both in a transparent and consistent manner.
Gourevitch, Peter. 1978. “The Second Image Reversed: The International Sources of Domestic Politics.” INTERNATIONAL ORGANIZATION 32(4): 881-912.
Putnam, Robert D. 1988. “Diplomacy and Domestic Politics: The Logic of Two-Level Games.” INTERNATIONAL ORGANIZATION 42(3): 427-460.
© Copyright 2010 by the author, Evan Rosevear.