Alliance for Responsible Trade

Background

In virtue of international law and, in particular, the Charter of the United Nations, Charter of the Organization of American States, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), American Declaration of the Rights and Duties of Man, American Convention on Human Rights, and the Protocol of San Salvador, states are required to respect, protect, and promote the exercise and fulfillment of all universal and indivisible human rights. In order to fulfill this obligation, states must demand and ensure that other social and economic players within their jurisdictions, including transnational corporations, also respect human rights.

Nevertheless, governments continue to either ignore prior commitments to the international community on human rights or they treat these commitments separately from economic matters. In some extreme cases, they have pushed for collective, social and labor rights to be excluded from constitutional protection. Frequently, free trade negotiations end up modifying domestic social pacts, making the weakest social partners bear the brunt of concessions made to benefit transnational corporations. These strategies have put human and social rights in jeopardy and have led to the deterioration of protections as well as the weakening of domestic and international enforcement mechanisms. In fact, many governments have put much more emphasis on negotiating trade agreements than protecting human rights. For example, the Committee which is charged with overseeing state compliance with the International Covenant on Economic, Social and Cultural Rights (which has been ratified by 145 nations) is composed of 18 part-time experts and two staff persons. The World Trade Organization, on the other hand, with roughly an equivalent membership, has over 500 employees and much greater resources. These practices ignore the fact that, according to international law, governments have the fundamental obligation to respect and ensure the exercise of human rights by all persons in their jurisdictions and to demand that other actors, including transnational corporations, uphold basic human rights. Human rights must not be an element tacked on to negotiations, but rather the legal and normative framework for international economic relations. Trade relations should be seen as a means and not as an end for development, since the primary obligation of any government is to achieve its citizens' well being.

The current neo-liberal aproach is incompatible with human rights and has exacerbated the marginalisation of broad sectors of the hemisphere's population. In this context, four basic points must be considered:

1. All members of the United Nations have pledged to uphold the rights enumerated in the Universal Declaration of Human Rights. In addition, many states have ratified the ICCPR, the American Convention on Human Rights, the Protocol of San Salvador, the ICESCR and other legally binding documents that obligate states parties to respect, protect and promote civil and political, as well as economic, social and cultural rights. When negotiating bilateral or multilateral agreements on trade or investment, states must be mindful of their preexisting human-rights obligations under international law. Currently, there are no reports of any government actually establishing a process designed to identify inconsistencies between their human-rights and their trade obligations, either domestically or internationally. According to the United Nations Charter, Article 55, universal respect for human rights is a central purpose of the United Nations. The UN Charter also states that in the event of a conflict between the Charter and any other international law, the obligations under the Charter shall prevail (Art. 103).

2. States parties to the above-enumerated binding agreements, as well as others barring discrimination, must guarantee equal rights for all people under their jurisdiction, without distinction of any kind, such as sex, ethnicity, nationality, language, religious beliefs, political convictions, economic or social conditions. States must combat impunity in cases of human rights violations, including cases of discrimination. In particular, states must adopt measures necessary to give effect to the rights recognized in the instruments to which they are party. For example, in many cases, states are obligated to ensure the effectiveness of policies that provide for the rights of women, workers, children, the elderly, migrants and their families, the displaced, the disabled, indigenous peoples, and those of African descent, among others. States must recognize the rights of indigenous peoples and approve instruments that guarantee the full use of said rights.

3. States parties to the ICESCR and other international instruments setting forth economic, social and cultural rights must take measures to progressively realize the right to work, basic labor rights, the rights to social security, to an adequate standard of living (including food and housing), and the rights to health, education and culture.

4. We must strengthen the efforts made by the peoples of the Americas to build a common vision and action plan on human rights. This common agenda must govern any economic, financial and trade agreement in the hemisphere and include mechanisms to ensure full implementation and enforcement. It will not gain strength without the common aspiration of all our peoples to make agreements and existing human rights mechanisms effective in regional and international settings.

Guiding Principles

1. The individual is the subject of all rights and liberties, and human rights imply the strengthening of opportunities and capacities so that all persons can enjoy them.
   
   
2. Human rights are based on human dignity and are the birthright of all human beings. They are therefore universal. They include civil, political, economic, social and cultural rights. Sometimes one category of rights is privileged in favor of another category and there are long-standing debates regarding the relative importance of different rights in the international community. However, in 1993 at the World Conference on Human Rights, the world's governments agreed that human rights are indivisible, inter-related, inter-dependent and universal. This means that one category of human rights cannot be neglected so that attention be paid to another. Furthermore, the Conference agreed that the realization of human rights is the first obligations of governments.

3. Economic, social and cultural rights are necessary preconditions for any possibility of effective, egalitarian and non-discriminatory civil and political rights. In order to guarantee the functioning of just societies and to legitimize their own existence, governments should take steps, to the maximum extent of their available resources, to achieve progressively the full realization of all economic and social rights of the people in their territory. Reducing the government's role in ensuring the enjoyment of civil and political rights without considering the full exercise of economic, social and cultural rights would bring intolerable discrimination that favors those sectors that have already benefited from the unequal distribution of wealth and therefore reproduce social inequalities.

4. Governments have the primary obligation to respect, protect and promote human rights. Although other actors are not directly regulated by international law, nevertheless, there is an international consensus that they have the duty to respect such rights and be responsible for them. When faced with violations (by action or omission) perpetrated by such actors as transnational corporations and/or multilateral institutions, governments and the international community should adopt, individually or through international cooperation, effective measures to prevent, raise objections to, or sanction violations of those rights anywhere. Effective remedies should be provided to victims of such violations.

5. All countries in the hemisphere that have not already done so should sign and ratify or, in the cases of treaties or declarations no longer subject to ratification, endorse the following international and regional human rights instruments and ensure that the human rights set forth therein are included in the content of any hemispheric, bilateral or multilateral agreement negotiated and signed:
   

International Instruments:

• International Covenant on Civil and Political Rights
• Optional Protocol of the International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights, including support for the creation of an Additional Protocol.
• The Vienna Convention on the Law of Treaties (1980)
• International Convention on the Elimination of All Forms of Discrimination against Women
• Convention on the Rights of the Child
• International Convention on the Elimination of All Forums of Racial Discrimination
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Convention for the Prevention and Sanction of the crime of Genocide
• Statute of the International Criminal Court
• Vienna Declaration and Programme of Action (1993)
• United Nations Declaration on the Right to Development
• Conventions related to the core labor rights identified in the International Labor Organization's (ILO) Declaration on Fundamental Principles and Rights at Work - freedom of association and collective bargaining, the elimination of all forms of forced or compulsory labor, non-discrimination in respect of employment and occupation, and the effective abolition of child labor -- as well as the U.N. Conventions on the Protection of the Rights of All Migrant Workers and Members of Their Families and ILO Convention 169, Indigenous and Tribal Peoples' Convention.

Regional Instruments

• American Convention on Human Rights
• Additional Protocol to the American Convention on Economic, Social and Cultural Rights, the "San Salvador Protocol"
• Inter-American Convention on the Forced Disappearance of Persons
• Inter-American Convention to Prevent, Sanction and Eradicate Violence against Women, the "Convention of Belém do Pará"
• Inter-American Convention to Prevent and Sanction Torture

The recognition of the rights derived from existing obligations and the ratification of other accords is only the first step toward the full implementation of human rights. This will bring into effect the right to development as a universal and inalienable right and as an integral part of fundamental human rights as declared by the General Assembly of the UN in 1986.

1. The Declaration on the Right to Development constitutes an essential framework for the full exercise of human rights, covering and integrating the other rights. Therefore, as long as the process of globalization continues to deny governments the necessary autonomy to develop their countries, it will not be possible to combat the social injustices that already exist and are increasing in our hemisphere. If globalization is to have a positive result for the Americas, it must start from the recognition that we are all citizens of the same planet, and that we are endowed with human dignity, which is the source of all of our rights.

2. Governments should prohibit all forms of discrimination based on gender, sexual orientation, race, ethnicity, religion, membership in any social or cultural group, nationality, or political views. They should establish effective measures to eradicate "ethnic cleansing" and combat the marginalization of and attacks on any social groups that experience discrimination within society, including gays and lesbians, persons with HIV/AIDS, street children, black people, prostitutes, and indigenous communities.

3. The region's governments should support the drafting of a Declaration and the establishment and ratification of a universal convention on Indigenous Rights before the conclusion of the Decade of Indigenous Peoples (2004), to which would be added a Permanent Indigenous Forum as part of the United Nations.

4. All trade, economic and financial agreements should include, at minimum, a "democracy clause" guaranteeing the full functioning of a state of law and democratic institutions with the primacy of human rights as the guiding principle.

5. The hemisphere's governments should guarantee that neutral and objective administration of justice on the part of judicial organizations becomes the necessary and essential basis for our countries' and the region's governability. They should recognize that impunity and influence-peddling are currently fundamental obstacles that must be overcome in order to consolidate a truly democratic culture and values system.

6. Negotiations on any trade and integration agreement must meet the requirements of democracy and transparency. Negotiations or agreements that do not respect these rules must not continue. Citizens and civil-society organizations representing them must have full access to information on intergovernmental negotiations and to the means and opportunities required to express their opinion on the content and possible ratification of such agreements. Governments must provide the resources needed to ensure that there will be participation on the part of citizens. National parliaments must conduct proper public consultations on such agreements and take the consultation results into consideration before expressing an opinion on the agreements.

Strengthening and Reform of the Inter-American System of Human Rights

The bodies of the Inter-American system for the protection of human rights should carefully monitor the consistency of trade agreements with the respect of human rights.

The executive nature of the decisions made by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights should be reaffirmed. States should comply with the decisions made by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. States should also adopt the national legal and other measures required to ensure implementation of all decisions emanating from the bodies of the inter-American system for the protection of human rights.

The Inter-American Commission on Human Rights should review periodically the impact of regional economic integration on human rights. States should ask the Inter-American Court of Human Rights for an advisory opinion on the compatibility between any proposed trade or integration agreement and the human rights principles set forth in the regional conventions.

Any conflict-resolution mechanism in a trade or integration agreement should take into account international and regional standards of human rights protection, as well as the jurisprudence of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights in the process of resolving conflicts arising out of alleged violations of human rights prinicples set forth in those agreements.

In its annual report to the General Assembly of the OAS, the Inter-American Commission should include a standing chapter on measures and action to ensure compliance of all trade and integration agreements with Inter-American and universal instruments for the protection of human rights. In preparing this chapter, the Inter-American Commission shall take into account the contributions of civil society.

In addition, the following steps should be taken:

1. Strengthen the Commission and the Inter-American Court on Human Rights with the allocation of economic resources that they both require for their effective functioning and to hold permanent sessions, for the enforcement of its decisions and collaboration in the processes it carries out, as well as for making precautionary and provisional measures more effective through the recognition of its jurisdiction by all countries in the hemisphere.

2. Ensure the direct participation of victims or their representatives in all stages of the proceedings at the Inter-American system through the establishment and adequate financing of a Fund for Human Rights Victims.

3. Governments should establish domestic regulations, in accordance with the relevant international instruments, to ensure effective implementation of the right to asylum and/or refugee status, while guaranteeing that these mechanisms are not used to grant impunity to those responsible for human rights violations.

4. Make NGOs and other social organizations' formal consultative status at the OAS more effective, establishing formal mechanisms and spaces for consultation.

5. Adopt effective measures to protect human rights defenders.

6. Ensure that the election of members of the Commission and judges on the Inter-American Court meet criteria of independence, suitability and competence through a public and transparent process.

7. Promote further engagement of the Inter-American System with the development of economic, social and cultural rights.

8. Reaffirm the exercise of freedom of expression, eliminating any form of criminalization of public debate.

9. Promote transparency in public administration, adopting legislation and measures to implement the right to information.

In order to implement these international commitments, all parties should ratify the principles of cooperation and coordination among international, regional and national human rights protection instruments.