rather than remaining at the margins of the process through which the project is permanently
redefined. At the same time, the tools advocated for such a contribution of the human rights
movement to the reshaping of the liberal trade project remain classical. They include in particular a
renewed emphasis on the need to see trade as a means towards socially desirable ends, rather than
as an end in itself; or human rights impacts assessments of trade agreements, as a means to
stimulate policy learning within the trade negotiators' community.
This latter tool is discussed in Chapter 18, where Harrison and Goller explore the range of issues that
are raised in the preparation of human rights impacts assessments of trade agreements, anticipating
a number of problems that, three years later, the Guiding Principles on human rights impacts of
trade and investment agreements sought to address (Guiding Principles on Human Rights Impact
Assessments of Trade and Investment Agreements 2011). The Guiding principles define the
preparation of human rights impact assessments as an obligation of States, which are bound by pre‐
existing human rights treaty obligations and therefore are prohibited from concluding any
agreements that would impose on them inconsistent obligations : this, the Guiding Principles argue,
imposes on States a duty to identify any potential inconsistency between pre‐existing human rights
treaties and subsequent trade or investment agreements, and to remove any inconsistency which
has been found to exist. However, as Lang notes in Chapter 17, though ostensibly using the language
of "consistency" and presented as an antidote to "fragmentation", human rights assessments could
also be construed, perhaps more importantly, as a learning device, that may lead trade negotiators
to questions some of their most deeply held assumptions. It is therein, arguably, that their greatest
subversive capacity resides.
2. The "paradox of the many hands"
Where a State encounters obstacles in seeking to fulfil economic and social rights because of an
unfavourable international economic environment, this only rarely may be attributed to a single
State alone: instead, it is the combined effect of the conduct of a number of States that results in
such an environment. This is a second difficulty in addressing the relationship of economic and social
rights to economic globalization. There emerges what some have called the "paradox of the many
hands": the larger the number of States involved in a situation that creates obstacles to one State
fulfilling its human rights obligations, the more difficult it will be to assert a responsibility of any
individual State in that situation. This problem is well known in the area of climate change (Voigt
2008). But it is equally relevant here, where the question is whether any State may be held
responsible for a situation ‐‐ resulting in the lack of realization of economic and social rights in
another State ‐‐ for which not the conduct of the former State alone, but that conduct in
combination with that of a large number of other States, has contributed to this result (see, most
notably, Salomon 2007).
In international law, it is accepted that the responsibility of the State may be engaged even though
the adoption by that State of a different conduct may not have led to a different result: if a particular
conduct of the State is illegal, responsibility is not conditional upon the likelihood that the outcome,
in terms of prejudice suffered by the victims, would have been different. In the Bosnian Genocide
Case, the International Court of Justice noted that, in order to find Serbia responsible for not having
prevented acts of genocide : "...it is irrelevant whether the State whose responsibility is in issue
claims, or even proves, that even if it had employed all means reasonably at its disposal, they would
not have sufficed to prevent the commission of genocide. As well as being generally difficult to
prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the
possibility remains that the combined efforts of several States, each complying with its obligation to
prevent, might have achieved the result — averting the commission of genocide — which the efforts
of only one State were insufficient to produce" (International Court of Justice 2007: para. 430).
According to the Court, how much the adoption by the State of a different conduct could have
28
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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