International Trade Law
International trade law refers to the rules and norms for managing trade between two or more nations as well as across borders. It is a combination of domestic law and public international law that relate to transactions for goods or services across national boundaries. In general, trade law has the goal of improving the economic well being through efficient market exchanges. Daniel M. Hausman & Michael S. McPherson (p. 671) explains that trade law is based upon enhancing the economic well being of nations through trade, on the inference that gains are exploited through the unrestricted flow of goods across nationwide boundaries. The law rests upon a view of humans as individuals who seek to maximize wealth and self-interested satisfaction of personal preferences. In a wholesome economic model, values outside competence are inappropriate, even destructive because they complicate or hinder the trading system.
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International trade and finance bodies were created largely to operate on the economic model and generally exclude other values of international society, like human rights and environmental protection. The international trade regime is clearly marked by a commitment to open markets. The establishment of the WTO expanded the substantive reach of international trade regulation to include trade-related aspect of intellectual property, trade in services, and trade-related investment measures. Yet, within the legal instruments and policies related to trade and investment there can be found some considerations of human rights. The General Agreement on Tariffs and Trade (GATT) allows states to ban the importation of products stemming from prison labor. Additionally, GATT allows measures necessary to protect human, animal or plant life or health.
James Gathii (p. 147) describes that the World Bank and the International Monetary Fund (IMF) have received substantial attention because of the considerable impact they can have on human rights, although both initially resisted taking human rights into account in their operations. Recently, the World Bank has begun to considering the human dimension of its work and it has declared that the alleviation of poverty is its main objective.
Ibrahim Shihata (p.45) affirms that the Bank has also been active in designing means to address the issue of the debt burden, culminating in the highly indebted poor countries largely as a result of scrutiny from non-governmental organizations and activists concerned about increasing wealth disparity, increased unemployment and other failures to improve the human condition in the countries subject to Bank operations, the Bank has begun to pay attention to social safety nets, human rights, and the notion of good governance.
International human rights law
The growth of Human rights led to the arise of movements against slave trade, and to combat the destructive forms of weaponry, such as gas warfare and dum-dum bullets, are early examples of international movements to counter the negative side of international trade and technology. Efforts to avoid competitive distortions and enhance the protection of fundamental rights of workers necessitated international labor standards. This resulted to the creation of the ILO in 1919. The International Labor Organization (ILO) engaged all the relevant actors in its operations from the beginning. Using a tripartite structure of representation, and ensured the participation of business, labor, and governments in developing worker rights and minimum labor standards for member states.
At the end of World War II the international protection of civil and political rights emerged becoming an aim of the international community in reaction to the atrocities committed during that conflict. In the post-World War II paradigm, the state and its agents are obliged to respect and ensure rights. In fact, some acts are plainly defined as human rights violations only if committed by state agents or those acting in complicity with them. If rights are violated, the state is compelled to ensure domestic remedies to correct the harm are available. A failure to do so may allow the individual to bring a complaint against the state before an international tribunal.
In spite of the emphasis on state responsibility, international human rights instruments continue to recognize human rights that are debased predominately by non-state actors, for example, freedom from slavery and forced labor. The duty imposed in such instances, however, remains essentially on the state to ensure the right against the slave holders and employers of forced labor. Human rights instruments also speak to the obligations of non-state actors.
The Universal Declaration of Human Rights (Universal Declaration), refers to itself as "a common standard of achievement for all peoples and all nations, to the end that every individual, and every organ of society" shall endeavor to promote respect for, and observance of, the rights. Article 1 of the Universal Declaration specifically refers to the behavior of individuals towards each other. This is complemented with a firm statement that, nothing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any task aimed at the destruction of any of the rights and freedoms set forth herein. The human rights law also enforces individual responsibility for some human rights violations and other acts designated as crimes under international law. These offenses require the state where the offender is found to try or hand over the individual, and in a few instances may allow prosecution before an international tribunal.
J. Oloka-Onyango (p.11) stresses that the achievement of human rights is a major boost to achieving international trade. Building on his view the Commission on Human Rights in 1998 established a working group on the impact of structural adjustment programs on social, economic, and cultural rights. The working group is largely composed of developing countries, with France, Germany, and Italy representing industrialized countries among the sixteen states participating. The Commission unanimously adopted a ruling on trade liberalization and its impact on human rights, in which it asked all governments and forums of economic policy to take fully into consideration the obligations and principles of human rights in the formulation of international economic policy. The ruling expressed opposition to unilateral sanctions on trade as a way to incorporate human rights into the policies and practices governing international economic matters. The ruling requested the High Commissioner for Human Rights to cooperate with the World Trade Organization and its member states to emphasize the human dimension of free trade and investments and to take measures to see that human rights principles and obligations are fully taken into account in future negotiations in the framework of the WTO. Significantly human rights law protects the right to property, including intellectual property, freedom of expression and communications across boundaries, due process for contractual or other business disputes, and a remedy before an independent tribunal when rights are violated. Moreover, the rule of law is an essential prerequisite to the long-term conduct of trade and investment.
Christoph B Graber (p. 27), states that economic analysis of the law can help legitimize the use of free speech. The protection of information and expression not limited to commercial speech and protection of property and of basic social welfare rights i.e. right to food, shelter and basic education are implied and necessary components of a stable international trading system. Therefore human rights guidelines should be defined and assessed on whether protection of human rights is relevant and important for maintaining the long term steadiness and viability of the international trading system
Fundamental human rights support freedom of economic players protecting them from unnecessary government intervention this may be in addressing unevenness of market information. A case study by Thomas Cottier (p. 245) describes how freedom of expression is thus a major ingredient of an efficiently functioning market. It is therefore claimed that freedom of expression should be included in the trade rules .however on the other hand the freedom of expression should provide a basis for legitimate restrictions of economic activities.
Benn Steil (p. 96) describes that failure to establish of the rule of law with protection for contracts and property rights may drive investors away. It is therefore essential to maintain security for international investment and trade.
Trade regulations should be amended to allow members of WTO to pursue appropriate domestic human rights and policies and in particular the possibility to protect public morals, public health and the environment. This should be done in accordance with the human rights. Sanctions for purely political ends can only be imposed on the basis of UN Security Council sanctions in accordance with Article XXI GATT and similar provisions in other agreements. Unless otherwise provided for by the international law, trade regulations cannot be used as a means of implementing sanctions for political ends outside the scope of WTO rights and obligations.
Judicial reform and the establishment of the rule of law with respect for human rights should be a priority, even if only for the instrumental reason to secure investment, property, contracts, debts, and profits. As the U.N. Development Program's Human Development Report 2000 proclaims, 'rights make human beings better economic actors.' This is because they feel appreciated which gives them motivation to work
The Copenhagen Declaration and Program of Action confirmed that social progress and social justice cannot be achieved in the absence of respect for all human rights and fundamental freedoms. The Sub-Commission on Promotion and Protection of Human Rights finds major responsibilities and objectives which are essential to the development process and to economic policy in human rights.
Many nations have approved the Vienna Convention on the International Sale of Goods, which has led to a common recognition that there is a need for an international law of contracts: for example, the Rome Convention on the Law Applicable to Contractual Obligations offers less specialized uniformity, and there is support for the International Institute for the Unification of Private Law( UNIDROIT) all of which signify continuing efforts to produce international standards as the internet and other related technologies encourage ever more interstate commerce.
With the growth of international law a common guideline for people helping others across borders in times of natural or man-made disasters should be developed. This approach of people and States helping each other would reinforce the principle of international cohesion as a indisputable principle of international relations and law.
The revolution in information technology and international news transmission has brought the people together, leading to expression of unity across borders through the expression of help for disaster victims, demonstrating a sense of unity among all.
The human rights should resist pressures which agree to trade rules that diminish flexibility and guidelines space to protect the public interest and human rights. The developing countries could use their human rights obligations as a shield to protect them from engaging in liberalization commitments that would decrease their ability to protect human rights. Brazil for instance did this in 2001, by introducing a chain of resolutions on access to medicines in the UN Commission on Human Rights. These resolutions were a fraction of a successful universal tactic that lead Brazil to achieve recognition of access to medicines as a human right, which in turn supported developing countries efforts in the WTO to ensure recognition of their right to make low-cost generic drugs obtainable to their people.