Moreover, where such conflicts occur, States may be strongly inclined to prioritize their obligations
under trade and investment agreements, both because of the risk of counter‐measures being
imposed on them if they violate such agreements, and because of the need for States to be seen as
trustworthy and hospitable to foreign investors. There are, of course, theoretical arguments in favor
of recognizing the primacy of human rights treaties, including the fact that the Charter of the United
Nations itself refers to human rights and proclaims its superiority above all other agreements (see
Article 103 of the UN Charter); and human rights courts have occasionally affirmed that the special
nature of human rights treaties ‐‐ that seek to guarantee rights to human rights and therefore "do
not depend entirely on reciprocity among States" ‐‐ require that they be seen as standing "in a class
of their own" and prevail over other obligations of States (Inter‐American Court of Human Rights
2006: para. 140). But these arguments are of little weight in fact, when balanced against the
commercial interests of States and their wish to send reassuring messages to the international
community of investors.
That, at least, is the classic way of framing the question of the relationship between economic
globalization and human rights in general, and trade and human rights in particular (for excellent
studies on this issue, see Joseph 2011 and Harrison 2007). Yet it is this view that chapters 16 to 18 in
this volume seek to challenge. They do so in different ways. In Chapter 16, Christian Barry and Sanjay
Reddy assert the need to go further than simply avoiding conflicts between trade and human rights.
Focusing on the question of how to avoid trade liberalization conflicting with the requirements of
basic labour standards, as guaranteed in the core instruments of the International Labour
Organisation, they insist that trade should be seen as an instrument to promote compliance with
such standards, in order to avoid the reverse consequence, i.e., the risk that opportunities to
compete on global markets will discourage countries from improving the rights of workers, at least in
labor‐intensive lines of production in which the costs of labour represent a significant component of
competitiveness. By systematically examining the arguments that could be raised against such a
linkage by the inclusion of social clauses in trade agreements, they carefully list the conditions linking
trade and labour standards might be acceptable, in order to avoid any instrumentalization for
protectionist purposes, or misuse of such a linkage. They conclude that linkage should be considered
desirable provided it is unimposed, transparent and rule‐based ; involves adequate burden sharing ;
incorporates measures that ensure that appropriate account is taken of viewpoints within states ;
and is applied in a context‐sensitive manner. A fair and effective system of linkage, they add, "will
likely demand action to promote labor standards not only from countries that are the sites of
production, but also by countries in which firms involved in the process of producing or marketing
goods are located, owned or managed" (Chapter 16: 622).
In Chapter 17, Lang addresses another challenge to the classic discourse of "fragmentation". He
questions in particular the simplified, "legal centralist" framework, that sees the WTO primarily as a
rules‐setting and rules‐enforcing organisation, whereas in fact, its influence resides as much (or even
to a larger extent) in the socialization process it encourages, and in the collective learning it leads to.
It follows that the WTO regime is not simply one that constrains States and that it is therefore not to
be seen primarily as a threat to human rights insofar as it may narrow down the "policy space" States
require to progressively realize them. It is also a "teaching" forum, that has a potential to educate
policy‐makers into certain values ‐‐ instruct them, as it were, about what it means to be a liberal
trading nation. What results is a reframing of the debate between trade and human rights : rather
than the search for "coherence" between regimes, what is required is for the human rights
community to become relevant to the debate on the desirable trade regime, encouraging policy
learning and the production of new ideas about desirable trade policy.
The agenda Lang proposes to the human rights community is in a sense a more radical project than
the classic search for "overcoming fragmentation" ‐‐ for it would lead the human rights community
to participate in shaping the discussion about the constitution of the liberal trade project itself,
27
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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