Friday, December 18, 2009

Thursday, August 27, 2009

WTO Chief Claims that Trade Advances Human Rights: Chameleonic or Paradigm-Changing Behavior?

One can hardly imagine a less likely pair to be sharing a stage than Pascal Lamy, director general of the World Trade Organization and the EU's former trade minister, and Archbishop Emeritus Desmond Tutu, the Nobel Peace Prize-winning champion of equal rights in South Africa and elsewhere. The occasion was an otherwise ordinary rite of spring, bestowal of honorary doctorates on the year's notable figures, in this case by the University of Geneva in May.

What made the event extraordinary was Recteur Vassalli's brilliant choice,in honor of the University's 450th year,of the subject that the honorees were assigned to address--human rights in the globalizing world. Lamy recognized the challenge by his lighthearted labeling of the Recteur's charge as "reckless" because, after all, "is not the WTO for many the symbol of a globalization in which mercantile pursuits have precedence over human beings, the market over individuals, might over right? "[1] Indeed, we note in Just Trade that human rights advocates maintain that global trade rules encourage sweatshops and child labor, promote overuse of irreplaceable natural resources, and confound national efforts to promote human rights by trade's command to Members of unconditional nondiscrimination in the treatment of like imports from other WTO Members, regardless of the human rights price of their production.[2]
Director-General Lamy gamely claimed that "globalization and the opening up of trade can work in favour of universal human rights, by which I mean both civil and political rights as well as economic and social rights." This is a bold statement, to be sure, signaling that Lamy fully intended to respond to Vassalli's question in the presence of Bishop Tutu in a positive and constructive way. Perhaps with an eye to whether WTO Members would accuse him of making promises that will be difficult to keep, or worse, Mr. Lamy added two qualifications. First, trade rules must be "just" and must apply to all. Second, the ability of trade to promote human rights "presupposes the existence of national social policies . . . to secure redistribution or (otherwise) provide safeguards for the men and women whose living conditions are disrupted by changes in the international division of labour" and "to correct the imbalances between winners and losers."
Bishop Tutu's response predictably questioned Lamy's positive view of globalization, asking how the West could accept that the European Union paid in agricultural subsidies the equivalent of US$2.50 daily for every cow and that "obscene amounts" are spent on the death and destruction of war "when we know that a very, very small proportion of this (money) would enable God's children everywhere to have clean water to drink, to have enough food to eat, to have a decent home and a decent education."[3] Wise words, indeed, but wisdom well known, not the complete shift in approach taken by Bishop Tutu's trade companion.
DG Lamy's conceptualization of Just Trade is consistent with our own. We posit the "absolute necessity that states pursue both human and economic well-being as a single, integrated ideal" through what is in effect "a human rights impact statement" that points the way to "what must be done in order for . . . states, corporate entities, and individuals alike to benefit from trade's promise of prosperity." Just Trade's "new covenant linking trade and human rights" demands that the pathway thus identified be implemented through changes in trade agreement provisions, implementing legislation, and financial and technical assistance.[4] Similarly, Lamy recognizes that "the benefit of trade opening for human rights is not automatic," requiring "national social policies" to "correct the imbalances between winners and losers" as trade's reach expands.
Mr. Lamy labels this process the "Geneva Consensus," encompassing also the proposition that trade liberalization is insufficient "unless it goes hand in hand with a sustained international effort to help the developing countries to build the capacity they need to take advantage of open markets." Lamy's recognition that "the greater the vulnerability of economies, societies or individuals, the more dangerous the imbalances" that WTO Members must correct through social policies to make trade both global and just brings to mind Just Trade's treatment of the special difficulties that trade rules present for women, indigenous populations, and the poor.[5]
Are WTO Members listening either to me and Professor Hernandez or to Pascal Lamy?
[1] Lamy's speech is reprinted on the WTO web site,
[2] Just Trade at 4.
[3] Jeremy Allen, "Tutu decries inequality at Geneva ceremony," Swisster 5Jun2009, available at
[4]Just Tradeat 297.
[5] Just Trade at chaps. 9, 10, 11, and 12. DG Lamy first presented his vision of a "Geneva Consensus" in a 2006 speech in Santiago, Chile, on "Humanising Globalization." He then observed that "we need to 'reform globalization' with a clear view to enhancing the development of social, economic and ecological aspects of humanity." See

Honduran Constitutional Crisis - Not a Coup

Even the New York Times, whose coverage of this critical event has been abysmally inadequate, continues to refer to the removal on June 28 of Honduran President Manuel Zelaya by the military as a "coup."[1] Such terminology unapologetically evokes images of the 1973 "caravan of death" mass execution of 75 political prisoners that began General Augusto Pinochet's 20-year dictatorship in Chile[2] and the 100-plus other examples of Latin America's not-so-distant propensity to end presidential terms prematurely by military force.[3]
No expert on the Honduran Constitution, I nonetheless feel compelled to call for media coverage of the actual legal context for Zelaya's being ushered out of the country by the Honduran military. As noted in an article published July 12 by Honduran Issa M. Faraj,[4] article 239 of the Honduran Constitution provides that if the president even proposes amending the Constitution to extend his rule, he shall "immediately cease to function in his post." According to Faraj, the Honduran Congress advised the Supreme Court that Zelaya's attempts to force a referendum on amending the Constitution were illegal because they could only be intended to amend the unamendable term limit provision. The Supreme Court agreed and ordered the military to arrest Zelaya. After decades of military dictatorships, Hondurans appear dead serious about preventing an authoritarian extension of presidential term limits.
It is not so clear why Zelaya was exiled to Costa Rica, but that should not cloud the justification for the president's removal from office. The only attempt in the U.S. media for legal accuracy came from a July 12 op-ed piece by Honduran Miguel Estrada, which I highly recommend.[5]What is now needed is a thorough airing of the documents on the Supreme Court's web site that explain the process. Do they justify Zelaya's removal? Did Zelaya receive due process?

[1] One Side Makes Offer in Honduran Impasse, AP, July 15, 2009, available in The New York Times on-line at
[2] Patricia Verdugo, Chile, Pinochet, and the Caravan of Death (Boulder: Lynne Rienner Pubs. 2001), from publisher's description at[3] Arturo Valenzuela, Latin American Presidencies Interrupted, 15 J. Democracy 5 (2004).

[4] Honduras: The Country the World Should Envy Today, July 12, 2009,
[5] Miguel A. Estrada, Honduras' Non-coup, Los Angeles Times, July 12, 2009 Opinion, available at,0,1570598.story?vote47975676=1.