Book Review of "JUST TRADE"

Rebecca Smith, an accomplished practitioner and scholar in the field of international human rights for immigrant workers, has published a review of JUST TRADE: A NEW COVENANT LINKING TRADE AND HUMAN RIGHTS, my co-authored book with Prof. Berta E. Hernandez-Truyol.  Ms. Smith is coordinator of the National Employment Law Project's Immigration Worker Justice Project. 


Smith's review, which appears in the October issue of Cornell University's Industrial and Labor Relations Review, 64 Indus. & Lab. Rel. Rev. 13 (2010), notes that Berta and I "attempt to end the 'splendid isolation' of the two areas of law. They argue that trade rules can be read--and in fact were meant--to support human rights.  The authors intend the book to be a catalyst for discussion and development of policy coherence in these two areas.  They should be applauded for an ambitious, even courageous, foray into this minefield and for a carefully developed, thought-provoking presentation."


Ms. Smith received the United Farm Workers of America’s Aztec Eagle Award, as well as special recognition by the Foreign Minister of Mexico for her work on behalf of undocumented workers before the Inter-American Court of Human Rights.  She believes that "Just Trade presents a number of bold ideas for the incorporation of human rights standards in trade matters. . . . As a labor rights practitioner, I found a number of these ideas thought-provoking, including that of bringing more human rights issues to the WTO's dispute panels and bringing more human rights elements to trade treaties.  For example, Hernandez-Truyol and Powell suggest that the WTO could be a forum for harmonizing human rights and trade law."


Smith wonders whether governments lack the political will to apply our suggested approaches, "either out of fear that their own practices will be exposed, or because they fear jeopardizing other national interests that always seem to merit higher priority than human rights."  She cites a tragic case as an example, that of the 2008 claim against Guatemala  by labor unions under the new Dominican Republic-Central America-US regional trade agreement alleging illegal firing, death threats, and even reports of murder.  Despite findings by the U.S. Dept. of Labor that petitioners' claims were overwhelmingly supported, the U.S. administration refused to seek action under the agreement's strong enforcement provisions.


Looking forward to the "continued development of [our book's] ideas," Smith observes that we "recommend further reforms in the area of trade regulation, suggesting first that trade rules should require multinational corporations to provide assurance that they are abiding by labor standards in order to gain access to favorable treatment, and second that new trade agreements should include a human rights impact statement to test what effect trade liberalization will have on issues such as the treatment of women, poverty, and migration."

Remembrance of Professor Robert C. L. Moffat

Bob was my teacher during the first year of his career in the legal academy, imparting my first knowledge of civil procedure as well as his own special brand of jurisprudence.

Law school was somewhat more casual in those days of the classroom shuffle and Quarterback Spurrier and a plentiful market for pioneering legal jobs.  This comfortable camaraderie was especially noticeable in the relationships between the students and the younger professors.  Bob and Janette quickly became my Gainesville family and I routinely gravitated to their house every week to share in a nourishing meal, their exceptionally warm company, and a delightful conversation that often explored some legal issue in closer detail.

While I concede to being more impressionable then than now, looking back I realize there were few topics that Bob could not discuss with exceptional knowledge and passion, always made more memorable by his clever, near frolicsome sense of humor.  That continued of course to be the case when I moved back to Gainesville a few years ago, although by then the list of publications, honors, and memberships had more than met the promise of those early days.

To say that Bob was inspirational to his students is perhaps an understatement in my case.  Bob’s passion about legal theory led me to write that year my first law review article on The Legal Nihilism of Pashukanis.  Perhaps that article was not on the top ten list for Florida practitioners, but that did not discourage Bob from pressing me and classmate Pat Brown into service during the summer after our graduation to put together an entire symposium edition of the Florida Law Review on Jurisprudence, where I had the great pleasure of working with Myres McDougal and Harold Lasswell on one of their classic iterations of the New Haven School.  Bob always ran with the big dogs, as they say, and it was amazing to have some of that vibrant personality and powerful mind rub off on me as a law student.

I’ve always loved the expression, "Teachers Touch Tomorrow."  We can be sure that Bob has inspired a world of creative ideas and interests and passions in his thousands of students.  Now that’s a legacy.

Calling a spade a spade: Toward a more expansive condemnation of human rights violations

Worker rights are human rights. A healthy environment is a human right. Health care is a human right. Freedom from discrimination based on race, color, sex, religion, national origin, or political opinion are human rights. The right to own property, to assemble peaceably, to due process, to an education, to leave the country are human rights. Freedom of expression and the right to vote are human rights. Of course, freedom from torture and arbitrary arrest are human rights.


These are individual rights that exist simply because we are human beings. They are guaranteed by a raft of UN treaties.  Yet rarely do we see this term used except in the context of genocide, slave labor, mass rape and child soldiers as weapons of war,  imprisonment of dissenters, and other violent government intervention into the lives of its citizens.  We can agree that government violence against its people deserves a higher priority of condemnation than other human rights violations.  My contention, however, is that we should begin routinely labeling as human rights violations other government deprivation of protected individual rights.


Fraudulent elections, unreasonably forceful quelling of public protests, and failure to ensure that producers do not poison our aquifers, pollute our air, or crush unions picketing for fair wages are violations of human rights that deserve to be accurately labeled as such. As Berta Hernandez-Truyol, co-author of our book on Just Trade, reminds us, "all human rights are universal, indivisible and inter-dependent and interrelated."


Condemning as human rights violations what governments that perpetrate them prefer to call "labor violations" or "environmental problems" or "discrimination situations" will help to end the fallacy that only violence by governments rises to the level of a "human rights" concern.  It would recognize that the indivisibility of human rights means that denial of free speech is closely related to arbitrary arrest, that condoning chemical dumping is closely related to denial of health care, and that failure to enforce laws against discrimination against women at work is closely related to the use of rape as a weapon of war.


Our human rights are precious, and each is inter-dependent on the others.  Let us accurately label their violation.

The Devil Made Me Do It: GATT and PPMs

The most sacrosanct of all global trade rules is that the World Trade Organization's (WTO) 150+ Members must treat a product from one Member no less favorably than it treats the "like" product from any other country.  For example, the most-favored nation (MFN) clause requires that Spain not tax or otherwise regulate the import or sale of bananas from Costa Rica in a more restrictive manner than it taxes or regulates bananas from Guatemala.


But what if the Guatemalan bananas are harvested in an unsustainable manner that requires continued clear cutting of virgin forest to maintain production, while the Costa Rican bananas are grown in an environmentally sound manner?  May a WTO Member restrict the former imports on environmental grounds, that is, treat the Guatemalan bananas "less favorably" than those from Costa Rica?


We note in Just Trade that "the GATT refuses entrance to [its] safe harbors to border measures that distinguish among products based on the way they are made or harvested--their processes or production methods."[1]  PPMs are the very lifeblood of environmental protection: steel made with low carbon emissions, shrimp caught without killing endangered sea turtles, wooden tables sourced from sustainable forests. Thus, exclusion from the WTO/GATT system of PPMs as a means to discriminate among products presents a severe disadvantage to enforcement of environmental and other human rights treaties, laws, and policies.  Import discrimination against armoires made from unsustainably-harvested tropical wood cannot be justified under MFN because a sustainably-sourced armoire is "like" the restricted product in its physical characteristics and uses.  Such a restriction must be immunized from WTO sanction, if at all, under the tight restrictions of GATT's General Exceptions, its Public Health and Welfare Clause.


We state in Just Trade that "no legal impediment" requires the PPM distinction.  Columbia University's noted trade economist, Dr. Jagdish Bhagwati, has confirmed in the Foreword to the first issue of the Indian Journal of International Economic Law, that legal interpretation did not enter into the equation.  Jagdish recalls, as the GATT Director General’s Economic Policy Advisor, being drawn into the discussion of what the panel should be asked to do about the creative U.S. claim that GATT article III permitted its discrimination among tuna imports based on how they were harvested.  He notes that the decision was based on two factors: first, that PPMs could too easily be used as disguised protectionism.  For example, a developed country could deny access to its market of products from Members that did not pay their workers a fair wage.

The second reason was that Emerging Market countries could not use PPMs against developed countries because they rarely would have higher environmental, labor, or other human rights standards than developed countries.  Thus, as Jagdish puts it, “an asymmetry of effective rights” would be created.[2]

I need not point out that neither of these premises for the PPM distinction is based on legal interpretation.  This is not to say that his reasons were not valid policy considerations, but the question before dispute panels is what the language of the treaty permits, not what should the drafters have written.  In fact, what Bhagwati and the Tuna-Dolphin panels were saying is, let’s send PPMs to the General Exceptions, where the far tighter restrictions will keep the use of PPMs in check.


As we note in Just Trade, this basis is ironic, given the rich interpretive history of GATT Article III, which offers stronger discipline against disguised protectionism than any other WTO provision.

---

[1] Berta Esperanza Hernandez-Truyol and Stephen Joseph Powell,Just Trade: A New Covenant Linking Trade and Human Rights 92 (New York: NYU Press 2009), http://www.nyupress.org/books/Just_Trade-products_id-7917.html. 

[2] Jagdish Bhagwati, Foreword, 1 Indian J. Int’l Econ. L. iv, vi (2008).

Latin American Scholar Attila Andrade Shares My View that Honduras Did Not Experience a "Coup"

Andrade (LLM Yale 72, JSD Yale 77) is senior partner at the law firm of Advocacia Attila De Souza Leao Andrade Jr. in Sao Paulo, Brazil. He is at UF Law this semester as a visiting professor as part of UF’s Foreign Enrichment Program.

Andrade said the Honduran Constitution denies Zelaya the right to seek another term and provides that the president cannot change the document.

“It also indicates that whoever attempts to change the constitution shall be immediately ousted,” Andrade said. “Unfortunately, this hasn’t been publicized much by the media in Latin America because it doesn’t suit the media.”

Andrade pointed out that their Constitution gives the power to their Supreme Court to remove the president from power, which is what happened. He said the coverage of the ousting has been poor and was surprised to see other countries backing Zelaya.

“However, the media, and unfortunately, all the other countries in the continent, which is amazing to me, back Zelaya up in suggesting that he there was a coup d'etat, that he was ousted by the military, and that he must return home in a glorious return to power,” Andrade said. “I don’t see it that way. It was a constitutional matter, the laws in place were complied with, and the man was perfectly ousted because he was too greedy to the point of trying to violate his own Constitution.”

Regional trade agreements as the new glue of multilateralism?

With successful conclusion of the Doha Round stalled for over three years and regional trade agreements (RTAs) proliferating as fast as new leaves in the spring, some trade experts already bemoan the demise of the WTO (I even subtitled a recent article "Is the WTO Withering Away?")  At least half of world trade crosses borders without reference to MFN principles, the most basic of foundational GATT principles.  Is modern trade multilateralism at an end a mere 60+ years after its birth?

Perhaps we underestimate the WTO's staying power.

With the explosion of RTAs comes the exponential growth of what Jagdish Bhagwati calls the "spaghetti bowl" of inconsistent and sometimes inexplicable trade rules that confound exporters to more than one region and have eaten away at the basic premises of the multilateral trading system.  In the near future, however, can we not expect these participants in the global market to demand some mechanism at minimum to compile these multifarious regulations into an easily-searched location and at best to harmonize them to some standardized, business-friendly system?  What other international organization is better equipped than the WTO to use its vaunted data-gathering skills to create the perfect web site to track, categorize, and explain each of the thousands of  RTA rules?  With every WTO Member a party to at least one and usually several RTAs, what better organization to engage its Members in the task of recommending harmonious "regional" trading rules that will return some semblance of predictability and order to the global market?  What Member, acting in its own interests, can possibly resist adapting its RTAs to these user-friendly standards?

RTAs, operating under the WTO umbrella, as the new glue of multilateralism?

I have posted my new article

GLOBAL LAWS, LOCAL LIVES: IMPACT OF THE NEW REGIONALISM ON HUMAN RIGHTS COMPLIANCE (with Patricia Camino Pérez)

on my personal web site at ExpressO as an unpublished (so far) paper.  See http://works.bepress.com/stephen_powell/doctype.html.

I would especially appreciate suggestions for next steps in my research.

The Sustainablility Imperative-Let's Talk Economic Efficiency

See my comments on the May 2010 Harvard Business Review article by David A. Lubin and Daniel C. Esty on "The Sustainability Imperative," in which I propose a project to prove that failure of the WTO and regional trade agreements aggressively to pursue a healthy environment and to implement other human rights is contrary to trade's fundamental goal of increasing world welfare to the greatest degree.

A Question about WTO Litigation Strategy

See my comment on the question whether bringing weak claims together with stronger claims is good WTO litigation strategy.