PHA-Exchange> FW: WTO-HR Caucus: FINAL joint statement on WTO and human rights for endorsement / distribution

[Davinia Ovett]

Please distribute widely / apologies for cross postings

APPEAL FOR ENDORSEMENTS:   JOINT STATEMENT ON TRADE AND HUMAN RIGHTS

The following statement has been drafted by a group of human rights
organizations and advocates from around the world.  The group functions as
a civil society "human rights caucus" around the WTO.  The statement will
be released on December 10 - International Human Rights Day - in Hong Kong
on the eve of the WTO Ministerial Meeting.  We invite all human rights
supporters to co-sign the statement with us.  This call for endorsements
comes in English only, but the text will be translated to French and
Spanish in the coming days.

Endorsements should be sent to Tamara Herman at globalisation at dd-rd.ca.
The deadline for endorsements is NOON (EST), December 9, 2005.

Please include the name of your organization (with french and spanish
translations if available), and the country in which it is headquartered.



(See attached file: caucus statement. eng..doc)

                   Statement of the Human Rights Caucus

                          On the occasion of the
       Sixth Ministerial Conference of the World Trade Organization

                             December 10, 2005

In a matter of days, government delegates will be gathering in Hong Kong
for the latest landmark event in the ongoing process of economic
globalization--the Sixth Ministerial Conference of the World Trade
Organization (WTO). We, members of civil society from developed and
developing countries, concerned about the impact of this process on the
realization of human rights and fundamental freedoms of people all over the
world, take the opportunity of International Human Rights Day to remind our
governments that their human rights obligations cannot be abandoned at the
WTO door.


 The moral and legal primacy of human rights

The human rights struggle is the struggle for human dignity, which is a
fundamental and defining ethical value in any culture. Trade liberalization
on the other hand is a means, not an end in itself. The end that must be
served by trade, as well as other aspects of economic policy, is increased
human wellbeing through development. This is the only basis on which a
given economic policy can claim moral and political legitimacy.

The canon of international human rights law (comprising civil,
political,economic, social and cultural rights) offers a comprehensive
legal definition of the fundamental elements of human wellbeing and human
dignity. Therefore, any trade or other economic policy that offends against
the principles of human rights, either in design or practice, lacks moral
and political legitimacy.

Human rights are enshrined in numerous international treaties and in many
national constitutions. Substantial portions of human rights law are
regarded as having achieved the status of customary international law. Some
of its foundational principles are recognized as peremptory norms of
international law.

The promotion and protection of human rights are included in the UN Charter
as being among the fundamental purposes of the United Nations. Through
Articles 55(c) and 56 of the UN Charter, Members of the United Nations
pledge to take joint and separate action to "promote universal respect for,
and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex language or religion.”  Charter Article 103
expressly and unambiguously provides that “[i]n the event of a conflict
between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.”

Increased trade can undoubtedly serve as one means for the realization of
human rights--especially the right to development--but it does not
automatically or necessarily do so. Even when trade does bring increased
wealth, poor distribution of the benefits both within and between nations,
perpetuates poverty and impedes the progressive realization of human
rights.


 The Doha Development Agenda & coherence in law, policy and practice

Human rights and economic policy are interconnected to a degree that
demands coherence in international and national law, policy and practice.
In the wider context of the security-development-human rights nexus, UN
Secretary-General Kofi Annan has declared in his March 2005 report, In
Larger Freedom, that:

     We will not enjoy development without security, we will not enjoy
     security without development, and we will not enjoy either without
     respect for human rights. Unless all these causes are advanced, none
     will succeed.

Nevertheless, the international trade regime has repeatedly denied and
rejected any intersection between its mandate and human rights. This is
both logically and legally indefensible especially since most WTO members
have ratified at least one of the major UN human rights treaties.

This isolationism of the international trade community is based in part on
a lack of knowledge of human rights--in particular of economic, social and
cultural rights as an inseparable element of the canon of international
human rights law--and also of the important contribution that human rights
can make to desired development outcomes of trade policy and practice.

Isolationism has resulted as well from the disconnection of international
trade policies and practices from the goal of increased human wellbeing.
Increased trade and trade liberalization have become ends in themselves,
and trade negotiations pit governments against each other in a competitive
process driven by corporate interests rather than human development.

We denounce this isolationist tendency, which runs counter to the Preamble
of the Marrakech Agreement, and demand that our governments take specific
steps to ensure coherence between trade means and human rights ends.


§      WTO member States must take their human rights obligations into
account in all aspects of trade policy development, negotiation and
practice.
§      WTO member States must undertake human rights impact assessments
before concluding new trade agreements or revisions of existing trade
agreements, as well as in the course of implementing existing agreements.
§      Information about human rights impacts should be included in trade
policy reviews, both in the members' own reports and in the reports
prepared by the WTO secretariat, including information provided by civil
society sources.
§      The WTO should be receptive to human rights arguments in the context
of dispute settlement, including through the possibility for human rights
organizations to submit amicus curiae briefs to the panels and the
Appellate Body set up under the Dispute Settlement Understanding.
§      States should establish effective mechanisms within government to
enhance policy coherence between human rights and trade. Trade ministries
and trade representatives should receive human rights information and
assessments from both governmental and non-governmental sources, in order
to formulate and advocate for coherent policy decisions in international
economic forums.



Extraterritorial Obligations

No country has, as yet, made a sufficient attempt to ensure that its policy
positions in international economic forums are consistent with its domestic
human rights obligations and with the human rights obligations of its
trading partners.

International human rights law places obligations upon States with regard
to international assistance and cooperation. These obligations require that
States refrain from actions (including in the context of negotiating and
implementing international trade agreements) that could interfere, directly
or indirectly, with the enjoyment of human rights in other countries, as
well as their own. Such extraterritorial obligations mean that steps should
be taken to ensure that activities undertaken by States individually or
within multilateral processes including trade negotiations do not undermine
the ability of other States to meet their human rights obligations.


§      Developed States must take into account their responsibility for
international assistance and cooperation for the realization of human
rights.
§      UN human rights treaty bodies should strengthen their capacity to
examine the human rights impacts of international trade agreements and
policies and to make observations concerning policy coherence.



   Agricultural trade, and the human right to food

In a world that has more than enough food to feed everyone, the number of
people who suffer from hunger and malnutrition is increasing. According to
the UN Food and Agriculture Organization, more than 850 million people lack
adequate food. Every five seconds a child under the age of five dies of
hunger or hunger-related disease. The international trade in agricultural
food products must be part of the solution, not part of the problem, in
relation to this tragedy.

There are close linkages between agricultural trade liberalization and the
failure to respect, protect or fulfill the human right to food.  Developing
countries have been pushed to open their agricultural markets to foreign
imports that are often exported at less than the cost of production.
Unfair trade rules, coupled with international financial institution loan
conditions, have limited the policy space for developing country
governments to meet their human rights obligations.

The Doha Development Agenda requires that WTO members address livelihood
and food security concerns by establishing adequate flexibilities within
new rules for trade in agriculture.  However, on the eve of the 6th WTO
Ministerial Meeting, very little hope of progress towards this goal can be
offered to millions of poor farmers and people suffering from hunger around
the world, and to the societies of which they are a part.


§      WTO members must honour their commitment to make special and
differential treatment for developing countries an integral part of the
negotiations, including in agriculture negotiations.
§      Market access rules must allow for differentiation, and allow
developing countries to adopt rules and practices for the purpose of
protecting the livelihoods of their agriculture-reliant poor.
§      Developing countries must have sufficient policy space to enable
them to support small farmers and to protect their agricultural markets
from cheap imports, especially for food staples.
§      Developed countries must end the dumping of subsidized agricultural
production.



Trade in services and equitable provision of essential services

Current negotiations on the WTO's General Agreement on Trade in Services
(GATS) threaten to erode the ability of national governments to implement
measures for the equitable provision of essential services (such as health,
water, sanitation and education) to all their citizens.  The implementation
of such measures is a central requirement of States under their human
rights treaty commitments. While the GATS does not technically require
withdrawal of the State from the provision of essential services, the logic
of liberalization of trade in services does not favour equitable provision
of those services.  The legal requirements of the GATS continue to threaten
effective State involvement and oversight in this area. Further mandated
negotiations may also threaten governments’ capacity to regulate services
in the public interest.

Moreover, consideration of the potential impact of the GATS should address
the power imbalances between countries in the negotiation process, and the
existing pressure towards privatization of the public sector under the
policy prescriptions of the IFIs.

Insofar as the human rights obligations of private corporations are not, as
yet, legally enforceable in all circumstances, as the home States of those
corporations are hesitant to adopt extra-territorial legislation to that
effect, and as the host States may find it legally or practically
impossible to impose strict obligations on foreign corporations, the rights
of poor and vulnerable populations to the highest attainable standard of
health, nutrition, education etc., may be put in jeopardy.


§      Essential services with direct implications for specific human
rights--such as the human right to health, water and education—should be
excluded from negotiations under the GATS.
§      There should be no new approaches within the GATS negotiations (such
as ‘benchmarking’or sectoral approaches) that could undermine the existing
flexibility of the positive list approach.
§      The ability of Governments to regulate in the public interest must
not be subjected to new constraints.



 Trade-related intellectual property rights, and the human right to health

The WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) has
posed formidable obstacles to the progressive realization of the human
right to health and the right to life, particularly in terms of access to
medicines. By protecting, or indeed mandating, monopoly rights for at least
20 years, and stifling competition from lower-cost producers, the TRIPS
Agreement enables drug prices to be set high and to stay high.

The 2001 Doha Declaration on the TRIPS Agreement and Public Health
recognized the practical problems for public health posed by TRIPS
compliance and encouraged WTO members to take advantage of TRIPS
flexibilities. However, many commercial and political disincentives
continue to limit the practical availability and utility of these
flexibilities, such as compulsory licensing and parallel importation, and
hamper the ability of poorer countries to ensure that TRIPS outcomes are
consistent with their human rights obligations. Further, the crisis
regarding neglected diseases (mainly those affecting populations in the
developing world) demonstrates the limitations of the market-based
justification for stringent intellectual property laws - i.e. incentive for
innovation.

In addition, the TRIPS provision allowing patent monopolies over living
organisms is offensive to many religions and spiritual traditions and is
therefore a violation of cultural rights.


§      States must ensure that intellectual property rules in TRIPS and in
other trade agreements do not obstruct or undermine any State’s ability to
comply with its human rights obligations, including equitable access to
medicines.
§      Assurances must be made that the additional seven year delay granted
to Least Developed Countries (LDCs) for the implementation of TRIPS is not
used to obtain concessions in agriculture, services or non-agriculture
market access (NAMA).
§      G8 countries must honour their commitment at Gleneagles to ensure
"universal access to (HIV) treatment for all those who need it by 2010",
and pursuant to that commitment to take all necessary steps to mitigate the
restraining effects of the TRIPS Agreement on access to ARVs in the
developing world.
§      The review under provision 27(3)(b) should proceed and lifeform
patents should be removed from the agreement.


Endorsed by:

Rights & Democracy, Canada
World Lutheran Federation, Switzerland


 
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