Regional Economic Arrangements and the Rule of Law in the Americas: The Human Rights Face of Free Trade Agreements
40 Pages Posted: 2 Apr 2008
Date Written: 2005
In past studies, we explored the more visible and controversial linkages between international trade law and non-trade issues that span a broad range of vital interests we may collectively describe as human rights law. We have addressed the widespread criticism that international trade rules are insensitive to basic human rights and that globalization has done little with its enormous power to preserve exhaustible natural resources and otherwise promote sustainable development, to alleviate the gap between rich and poor, to encourage states to grant their citizens basic human rights contained in U.N. treaties, to resolve the often conflicting policies underlying essential human rights and trade goals, and generally to integrate trade and critical human rights law on the global front.
Our focus in this essay is on the contribution of regional free trade agreements to the rule of law. We conclude that FTAs have pronounced effects on attainment of rules-based governance. Provisions in FTAs that encourage transparency, accountability, and due process by governments, as well as dispute settlement systems that promote timeliness, inclusive record keeping, and impartiality in the administrative decisional process are powerful allies to right-minded governments interested in symbiotic avenues to advance for their citizens the rule of law, by which we mean formal justice that promotes liberty.
The notice, publication, timeliness, and record keeping provisions of FTAs, in particular, seem to have outsized effects in promoting rules-based governance. These requirements turn a mirror onto the process of government itself, revealing its strengths and weaknesses at once both to public officials and to their constituencies, often with positive effects on the lawmaking process that could not have been predicted even by the officials who negotiated the provisions. They institutionalize measures the government already is taking to advance the rule of law, thus serving as the government's conscience and relief force.
Even if trade negotiators accept our essay's thesis, many questions make its immediate application problematic. For example, what steps should negotiators take to account for the specific cultural premises and substantive norms that frame the rule of law concept for use in a particular society? Is it realistic to expect that one could discover a confluence of such premises and norms within a region, for example, Central America or the Caribbean, so that regional negotiations may be undertaken among trading blocs, or must each country be addressed separately?
At bottom, we may ask, are trade agreements, despite their importance to society as mechanisms to spur economic growth, simply unsuited as instruments to improve human rights for civil society in general, because the meat and bones of trade treaties lie in reducing barriers to open trade through nondiscrimination principles, when we know that most human rights priorities use discrimination as their most powerful avenue of enforcement? We hope our study will encourage further work in this important area.
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