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UN body reaffirms human rights obligations over trade, finance

by Chakravarthi Raghavan

Geneva, 27 Aug 2001 - A UN human rights body of jurists, has asserted that respect for human rights and obligations of States - civil and political, economic, social and cultural - enshrined in the Universal Declaration of Human Rights and the international covenants must be a priority in all international policy forums, including the IMF and the forthcoming WTO’s 4th Ministerial Conference at Doha.

The three resolutions adopted by the UN Sub-commission on Promotion and Protection of Human Rights at its recently concluded three-week annual session (ending 17 August), governing the general issues raised by economic globalization, as well as issues raised by the WTO’s Trade-Related Intellectual Property Rights Agreement (TRIPS) and the General Agreement on Trade in Services (GATS) provide strong support for civil society movements waging a strong international and national campaigns on these issues, according to Mr. Miloon Kothari of the Habitat International (an NGO coalition) and a UN Special Rapporteur on adequate shelter and housing as a human right.

The Sub-Commission, comprising 26 independent experts and serving as an advisory body to the Commission on Human Rights, in calling into question the impact of key aspects of globalization process on human rights, have urged a detailed study of the effects of globalization and certain trade agreements on human rights.

The jurists also reaffirmed the importance and relevance of all human rights obligations, in all areas of governance and development, on international trade, investment and finance, and the need for all Governments and international economic policy forums to take these obligations fully into account in international economic policy formulation, including the WTO’s forthcoming 4th Doha Ministerial Conference.

Civil Society movements campaigning on these issues underscored the fact that the jurists body, meeting three weeks after the massive anti-globalization protests in Genoa (Italy) at the venue of the G7/G8 summit, had adopted these resolutions, after two days of intensive discussions on globalization and human rights.

“With these three resolutions, the Sub-Commission sends an important signal and clear message to all governments as well as international economic policy forums to take international human rights obligations and principles fully into account in international economic policy making,” said Mr. Peter Prove of the Lutheran World Federation.

Reacting to the claims before the jurists by the International Monetary Fund (IMF) that it was not bound by international human rights standards, the Sub-Commission, in a resolution on Globalization and its Impact on the Full Enjoyment of All Human Rights, reaffirmed the importance and relevance of human rights in international trade, investment and finance, and urged all governments and international economic policy forums, including the Doha WTO meeting to take human rights fully into account.

The Sub-Commission considered a progress report by Mr. Oloka-Onyango (from Uganda) and Ms Deepika Udagama (from Sri Lanka) on Globalization and its impact on full enjoyment of human rights, and adopted three resolutions covering the general issues of globalization, the WTO’s Trade-Related Intellectual Property Rights and the General Agreement on Trade in Services (GATS) and their implications on all aspects of human rights - the Universal Declaration of Human Rights and its Article 28 and 25 paragraph 1, and the binding obligations on States under the International Covenant on Economic, Social and Cultural Rights.

In reacting to the claims made before it by the International Monetary Fund, during the discussions of the Onyango-Udagama report (that had re-affirmed the juridical position that the UN Charter and the various human rights obligations prevailed over every other), that the IMF was not bound by the UN Human Rights standards, the Sub-Commission:

·        reaffirmed the importance and relevance of human rights in international trade, investment and finance;

·        urged all governments and international economic policy forums, including the forthcoming 4th WTO Ministerial meeting at Doha, to take human rights fully into account;

·        expressed concern about HR implications of liberalization of international trade in agricultural products, especially the right to food for members of vulnerable communities;

·        called upon all governments and international economic policy forums, including the WTO and its GATS Council, to conduct an assessment of the impact of GATS (in its current and future forms) on the implications of international trade in basic services such as health and education services and their further liberalization;

·        reiterated its continuing concerns (voiced by it for the first time last year) over the negative impact of TRIPS on human rights, and the need to clarify several provisions of the TRIPS and need to ensure that the obligations of States under TRIPS do not contradict their binding human rights obligations and the crucial human rights issues raised by the implementation of TRIPS - protection of traditional knowledge of indigenous peoples, food security, access to medicine, technology transfer and development, preventing bio-piracy.

Nathalie Mivelaz of the World Organization Against Torture pointed out that “these initiatives of the Sub-commission are very timely, coming as they do shortly prior to the Annual Meetings of the World Bank and the IMF in September and the 4th Ministerial Conference of the WTO .. and signal an intensification in the scrutiny of further developments in these forums by the human rights community.”

“... in the buildup to Doha, these resolutions from an important UN human rights body bolster the case for a comprehensive human rights review of the Uruguay Round agreements and point convincingly to the folly of embarking on a new round prior to fully coming to grips with the conflicts between agreements such as TRIPS, Agreement on Agriculture (AoA) and GATS, and the existing legal obligations of States under the international human rights instruments,” added Kothari.

Pointing to another important resolution adopted by the Sub-Commission, supporting efforts towards a legal mechanism for the review of individual and group complaints of violations of economic, social and cultural rights, Nathalie Prouvez of the International Commission of Jurists said: “there are no rights without adequate remedies, and the adoption of a universal complaint mechanism for violations of economic, social and cultural rights, will fill a huge gap in the international human rights protection system.”

On the services issues, Asbjor Eide, the Norwegian expert serving on the commission, expressed the main human rights concerns about the deregulation of international services. The rise of trade liberalisation, which now also includes services, has direct and potentially profound effects on the full realisation of economic and social rights, Eide said. As a human rights forum, the Sub-Commission has the responsibility to carefully and critically study what is occurring in that realm in order to bring the dangers to light, he said.

There are serious risks that, once privatised, international services will opt for the solutions that are most profitable and forget about the most vulnerable sectors of the population, given that privately-run services are not subject to the same democratic controls as public services, he commented. Citing the examples of health, education, potable water and sewerage services, Eide warned about the serious dangers involved if the states transfer their responsibilities to transnational service providers that lack a social conscience about the local communities.

In the resolution on ‘Globalization and its impact on the full enjoyment of all human rights’, the Sub-Commission:

·        Reaffirmed the importance and relevance of human rights obligations in all areas of governance and development, including international and regional trade, investment and financial policies and practices, while confirming that this in no way implies the imposition of conditionalities upon aid to development and urged all Governments and international economic policy forums to take international human rights obligations and principles fully into account in international economic policy formulation, including during the forthcoming Fourth Ministerial Conference of the World Trade Organization (Doha, 9-13 November 2001);

·        encouraged the two Special Rapporteurs to examine further the relationship between international human rights law and international economic law, particularly in relation to the functioning of multilateral and plurilateral economic institutions; to focus on guidelines and mechanisms necessary to deal effectively with the phenomenon of globalization and its varied impacts on the full enjoyment of human rights; and to propose further measures necessary to ensure that the United Nations human rights regime is strengthened to address the challenges presented;

·        recommended that Governments engaged in the preparation of Poverty Reduction Strategy Papers include in them reference to applicable human rights obligations and ensure that the realization of such obligations is incorporated in the objectives defined in their Poverty Reduction Strategy Papers;

·        encourages the Special Rapporteur on the right to food to explore, within his mandate, the implications for the realization of the right to food of liberalization of the international trade in agricultural products, particularly in the framework of the WTO’s AoA;

·        also encouraged the Committee on Economic, Social and Cultural Rights and other bodies monitoring the implementation of human rights treaty obligations in the area of economic, social and cultural rights to explore, in the course of reviewing States parties’ reports, the implications for the realization of the right to food of liberalization of the international trade in agricultural products, particularly in the framework of the WTO’s AoA;

·        recommended that the Commission on Human Rights consider requesting that an expert consultation be convened on economic globalization and human rights, involving special rapporteurs and other special mechanisms of the Commission having relevant mandates, members of the Sub-Commission, United Nations agencies with relevant competencies, the World Bank and the International Monetary Fund, other international economic institutions, including the World Trade Organization and the Organisation for Economic Cooperation and Development, academics and relevant civil society representatives.

On the issues of Intellectual property and human rights, the Sub-Commission in some pre-ambular paragraphs,

·        reaffirmed that, as declared in article 28 of the Universal Declaration of Human Rights, everyone is entitled to a social and international order in which the rights and freedoms set forth in the Universal Declaration can be fully realized, and that, as stated in the provisions of the International Covenant on Economic, Social and Cultural Rights, the rights to self-determination, food, housing, work, health and education constitute legally binding obligations upon State parties;

·        stressed that, in accordance with article 27, paragraph 2, of the Universal Declaration of Human Rights and article 15, paragraph 1 ©, of the International Covenant on Economic, Social and Cultural Rights, the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author is a human right, subject to limitations in the public interest;

·        expressed the need to clarify the scope and meaning of several provisions of the TRIPS Agreement, in particular of articles 7 and 8 on the objectives and principles underlying the Agreement in order to ensure that States’ obligations under the Agreement do not contradict their binding human rights obligations, and noted the day of general discussion held on 27 November 2000 by the Committee on Economic, Social and Cultural Rights on article 15, paragraph 1 ©, of the Covenant in order to clarify the relationship between intellectual property and human rights, and the current efforts of the Committee to draft and adopt a general comment on that subject,

·        reiterated that actual or potential conflict existed between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights, in particular the rights to self-determination, food, housing, work, health and education, and in relation to transfers of technology to developing countries, and

·        stressed the need for adequate protection of the traditional knowledge and cultural values of indigenous peoples and, in particular, for adequate protection against “bio-piracy” and the reduction of indigenous communities’ control over their own genetic and natural resources and cultural values, as well as the provisions of the UN Convention on Biological Diversity relating to the safeguarding of biological diversity and indigenous knowledge relating to biological diversity, and the promotion of the transfer of environmentally sustainable technologies.

In its operative paragraphs, the resolution among others,

·        reminded all Governments of the primacy of human rights obligations under international law over economic policies and agreements, and requested them, in national, regional and international economic policy forums, to take international human rights obligations and principles fully into account in international economic policy formulation;

·        called upon Governments to integrate into their national and local legislation and policies provisions that, in accordance with international human rights obligations and principles, protect the social function of intellectual property;

·        urged all Governments to ensure that the implementation of the TRIPS Agreement did not negatively impact on the enjoyment of human rights as provided for in international human rights instruments by which they are bound, and take fully into account existing State obligations under international human rights instruments in the formulation of proposals for the ongoing review of the TRIPS Agreement, in particular in the context of the Ministerial Conference of the World Trade Organization to be held in Doha in November 2001;

·        called upon States parties to the International Covenant on Economic, Social and Cultural Rights to fulfil the duty under article 2, paragraph 1, article 11, paragraph 2, and article 15, paragraph 4, to cooperate internationally in order to realize the legal obligations under the Covenant, including in the context of international intellectual property regimes;

·        suggested that the Committee on Economic, Social and Cultural Rights and other bodies monitoring the implementation of treaty obligations in the area of economic, social and cultural rights explore, while reviewing States parties’ reports, the implications of the TRIPS Agreement for the realization of economic, social and cultural rights;

·        requested the UN High Commissioner for Human Rights to seek observer status with the World Trade Organization for the ongoing review of the TRIPS Agreement;

·        also requested the High Commissioner for Human Rights to consider the need for an examination and, if necessary, to conduct such an investigation, into whether the patent, as a legal instrument, is compatible with the promotion and protection of human rights and corresponding State obligations;

·        further requested the High Commissioner to undertake an analysis of the impact of the TRIPS Agreement on the rights of indigenous peoples; and

·        encouraged the Special Rapporteurs on the right to food, education and adequate housing as a component of the right to an adequate standard of living to include in their reports a review of the implication of the TRIPS Agreement for the realization of the rights falling within their mandates;

The Sub-Commission called upon the High Commissioner to convene an expert seminar to consider the human rights dimension of the TRIPS Agreement based inter alia, on the reports of the High Commissioner on the impact of the TRIPS Agreement on human rights (E/CN.4/Sub.2/2001/13) and to report thereon to the Commission on Human Rights at its 59th session.

In a separate resolution on liberalization of trade in services, and human rights, the Sub-Commission,

·        called upon Governments and international economic policy forums actively to ensure that, in the formulation, interpretation and implementation of policies in relation to the liberalization of trade in services, such liberalization of trade in services does not negatively impact on the enjoyment of human rights by all persons without discrimination;

·        requested the United Nations High Commissioner for Human Rights to submit a report on the human rights implications of liberalization of trade in services, particularly in the framework of the General Agreement on Trade in Services (GATS), to the Sub-Commission at its fifty-fourth session;

·        encouraged other relevant UN agencies, in particular the World Health Organization and the United Nations Educational, Scientific and Cultural Organization, to undertake analyses, within their respective competencies, of the implementation of GATS on the provision of basic services such as health and education services; and

·        recommended that the World Trade Organization and its Council for Trade in Services, in conducting its assessments of the impact of GATS in its current and future forms, include consideration of the human rights implications of the international trade in basic services (such as, inter alia, the provision of affordable and accessible health and education services) and the further liberalization thereof; and that the WTO take into account in assessments of the implementation of GATS the report to be prepared by the UN High Commissioner for Human Rights and any analyses prepared by other United Nations agencies.

The UN High Commissioner for Human Rights and other relevant UN agencies that have not already done so have been requested to seek observer status with the  Council for Trade in Services of the World Trade Organization. – SUNS4955

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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