'So near but yet so far,' has until recently been the most fitting way to describe relations between the WTO and the Human Rights world.  A few minutes walk along the Geneva lakeside will take you from the WTO building to the Office of the High Commissioner for Human Rights (OHCHR), yet relations between the two have at times been so cold that the small distance seemed impassable.  In 2000 a report on globalization and human rights by two members of the UN Human Rights Sub-Commission caused a tense exchange of letters between the WTO Secretariat and the UN Human Rights office(1) and became known in trade circles as the 'nightmare' report for having referred to the WTO as being a 'veritable nightmare' for developing countries.


Thaw in human rights-WTO relations

However, as evidenced by the constructive discussions on trade-related issues during the annual session of the UN Commission on Human Rights (Commission) in March-April 2003, the tension has eased considerably in the last two years.  Excellent reports of the High Commissioner for Human Rights, on the human rights impacts of agriculture trade liberalization(2) and liberalization of trade in services(3) have earned the respect of trade officials and public interest groups alike, and shown that the human rights perspective is a positive contribution to the debate on social impacts of trade liberalization.  The Commission's annual resolutions on access to medication as a human right(4), which refer to efforts in the WTO to resolve this issue, have further shown the WTO-relevance of human rights.   

The Commission on Human Rights' members are States: each of its 53 members is elected by the UN's Economic and Social Council (ECOSOC).  Thus any Commission resolution or decision is the subject of intense political negotiation and the lowest common point of agreement is often the one that carries the day.  In contrast, the Commission's 'Special Rapporteurs,' appointed to focus on particular aspects of human rights, are experts independent from any government.  Many of them deliver sharp and relevant analysis of key human rights issues  as is the case for the Special Rapporteurs on the right to education, the right to food, the right to health and the right to housing.(5)


Rapporteurs flag human rights impacts of
trade liberalization: education, housing and food

The human rights impact of international trade was a recurrent theme during the 2003 Human Rights Commission.  And the level of discussion reflected the willingness and ability of many in the human rights community and the trade policy world to seek mutually-beneficial solutions when trade liberalization risks adversely impacting on human rights.  For reasons of space, this article will limit itself to references to the reports of those Commission's Special Rapporteurs that refer directly to the WTO.(6)

In her report, Katarina Tomaševski (Special Rapporteur on the right to education) urged that education be upheld as a free public service.  She commented how decreasing allocations for public education was part of a dangerous trend of privatizing and liberalizing education services, and appealed to trade negotiators to bear in mind their obligations regarding the right to education when defining the permitted scope of liberalization of education services.  She expressed concern that with privatisation, and the blurred borderline between public and private due to the rapid expansion of sale and purchase of education services, only poor quality education would be left for the less well-off.  In a question and answer session, a Norwegian delegate raised the issue of trade liberalization in the context of the right to education, emphasizing the need to consider human rights law as well as trade law.  

The Special Rapporteur on the right to food, Jean Ziegler, noted that with globalization, one government's actions can have repercussions on the right to food of people in another country.  He recalled that States must ensure that their trade relations do not violate the right to food of people in other countries, adding that States should take account of their human rights obligations in their deliberations in multilateral organizations including the WTO.  

The report of the Special Rapporteur on the right to housing, Miloon Kothari, refers to the negative impacts of water privatisation on the poor and their right to housing.  It urges States, in keeping with their human rights obligations, to refrain from expanding agreements such as the GATS and NAFTA that open the way for large corporations to be sole providers of civic services essential for the realization of the right to housing and other human rights.  After his mission to Mexico in 2002, Mr Kothari's stated that Mexico must carefully examine its existing and proposed commitments under trade agreements such as GATS, NAFTA and the FTAA, in order to ensure they do not undermine Mexico's human rights obligations including access to basic services and the right to adequate housing. 


Right to development mired in politics;
right to health poised to progress

The human rights subject often looked to by people concerned with international economic policy is the right to development.  The most recent report of the Commission's independent expert on the right to development, Arjun Sengupta, contains much valid analysis and an interesting proposal for a 'Right to Development  Development Compact.'  Yet the Commission's work on this right is unlikely to have much impact on making international trade policy more attentive to human rights, as right to development discussions have always been highly politicized and are bogged down, year after year, in North-South disagreement over issues as basic as whether or not the right to development is a fundamental human right.

It is the Commission's Special Rapporteur on the right to health, Paul Hunt, who is poised to take the most concrete steps to address possible conflicts between WTO-related policies and the enjoyment of human rights.  His preliminary report, presented in 2003, sets out a range of issues he plans to explore further during his three-year mandate.  He has underlined the intention to focus on the right to health and poverty, as well as the right to health, discrimination and stigma. 

During the Commission's debates on the right to health, China and Argentina were amongst those who raised the question of access to medication and intellectual property rights. China noted that drugs to deal with diseases affecting mainly developing countries were produced in developed countries and that many developing countries could not afford the fees for the licenses to produce these drugs. The Chinese delegate asked how a balance could be achieved between the protection of property rights and the right to health.  A representative of Argentina wondered how the Special Rapporteur intended to address the question of the drug industry.  Paul Hunt's report does indicate his intention to consider this question in more detail, with reference to the implementation of the Doha Declaration on TRIPs and public health, particularly in the lead-up to the WTO Fifth Ministerial Conference in September in Cancún. 

In his report, the Special Rapporteur also indicates his intention to look at how services trade liberalisation under GATS could affect enjoyment of the right to health.  He takes a human rights perspective on another topical WTO issue: assessment, underlining in his report that human rights requires from States that they assess whether a new law or policy is consistent with its human rights obligations.  This involves analyzing the distributional impact of laws and policies on the well-being of different groups in society, especially the poor and vulnerable.  He recalls that the requirement of socially responsible impact analysis applies to States as well as other actors.

The Special Rapporteur on the right to health has requested to meet with WTO officials.  'I very much look forward to discussing with, and learning from, the WTO and its member States,' Paul Hunt says.  'Such meetings would provide a valuable opportunity to enhance understanding between the trade and human rights communities and contribute constructively to the debate about international trade and the right to health' he added.  

Developments at this year's Human Rights Commission have shown that the human rights movement can positively contribute to debates on trade and sustainable development, a contribution that should be welcomed by those concerned with economic justice worldwide.  So as the spring sun warms up the lake in Geneva, the park between the WTO Secretariat and the OHCHR may yet become a common ground for discussions between the WTO and the human rights worlds rather than a barrier separating them.