CONFLICTS BETWEEN FUNDAMENTAL RIGHTS OR CONFLICTING

FUNDAMENTAL RIGHTS VOCABULARIES? AN ANALYSIS OF

DIVERGING USES OF ‘FUNDAMENTAL RIGHTS’ IN THE CONTEXT OF
INTERNATIONAL AND EUROPEAN TRADE LAW

John Morijn*

Forthcoming in: Eva Brems (ed.), Conflicts Between Fundamental Rights,

Antwerp/Oxford: Intersentia 2008

1. Introduction

Quests to identify and structure different judicial methodologies and legislative

modalities for dealing with conflicts between ‘fundamental rights’ presuppose a
common understanding of which norms, standards and principles actually constitute
the legal category of ‘fundamental rights’. Human rights scholarship typically
answers this issue of definition implicitly by simply referring to human rights treaties
and legislation on the international, European or national level, and the specialised
jurisprudence interpreting the norms laid down in them. Moreover, it is usually taken
as common ground that these ‘fundamental rights’ provide for an analytical
framework that is comprehensive and, because of their indivisibility and
interdependence, need to be pursued as a ‘package’ in any given context. On that
basis, it is not surprising that human rights specialists view lines of reasoning that
clearly prioritise one type of fundamental rights norms over other types, or the
phrasing of norms as ‘fundamental rights’, which are not as such listed in one of the
human rights treaties, with suspicion.

However justified this particular mindset and professional intuition is on its own
terms, it is submitted here that continuing unquestioning reliance on these articles of
faith may jeopardise the identification of challenges to the protection of the norms
that human rights advocates themselves regard as ‘the’ fundamental rights. For, in
reality, the fact of the matter is that outside the narrow professional circle of human
rights specialists, the fundamental rights vocabulary is being legally employed in
divergent ways. In academic writings, a number of norms listed in human rights
treaties are conceptually or de facto prioritised over other fundamental rights due to
some of their particular characteristics. Moreover, aside from norm setting initiatives
administered by human rights organisations themselves, further legal norms seem to
be (proposed to be) added to the list of ‘fundamental rights’ in contexts not primarily
dealing with fundamental rights protection. Clearly, as implementation of each of
these two proposals (that will be loosely characterised here as ‘sequencing’ and

*
Researcher, European University Institute, Law Department, Florence, Italy; Lecturer in Human
rights, University of Groningen, Faculty of Law.

Electronic copy available at: http://ssrn.com/abstract=1076647

‘extension’ of fundamental rights) would result in an entirely different list of
‘fundamental rights’, also one’s thinking about what to do about conflicts between
‘them’ would proceed from different premises.

Crucially, this is not solely a theoretical problem. Rather, the existence of parallel
fundamental rights catalogues and/or contextual short-lists is a quintessentially
practical issue for those concerned with balancing ‘fundamental rights’. Within many
international institutions, with activities significantly bearing on fundamental rights
protection as understood by human rights professionals, the vocabulary of
‘fundamental rights’ is not monopolised by them. Interpretational issues arising from
the conceptual and legal ambiguity about what is (not) to be regarded as included on
this legal ‘list of lists’, and what is to be naturally prioritised, are therefore by no
means exclusively raised and settled in courts and monitoring bodies with mandates
exclusively focusing on human rights proponents’ ‘fundamental rights’. As a result,
what is accepted to be added to, dropped from, or emphasised on the list of norms
considered ‘fundamental rights’ directly impacts judicial methodologies and
legislative modalities to deal with conflicts of ‘fundamental rights’ inter se. For these
reasons, intellectual non-engagement with alternative views regarding which norms
constitute ‘fundamental rights’, and which of these merit specific attention in specific
contexts, may eventually weaken fundamental rights protection as viewed by human
rights experts.

This chapter aims at illustrating this broad point by concentrating on international and
European trade law. These legal regimes1 are introduced here as an example of
contexts with regard to which ‘linguistic confusion’ about fundamental rights can be
identified, both in the ‘sequencing’ and ‘extension’ form. With regard to sequencing,
the focus will, in particular, be on recent endeavours by the International Labour
Organisation (ILO) that short-list four labour rights/human rights as the most
important ones in (initially) phrasing the challenges of trade liberalisation. This
approach has been strongly defended by prominent international labour lawyers. They
argue that this selection of ‘fundamental rights’ needs to be prioritised in the context
of WTO-driven trade liberalisation for reason of their procedural nature. It is believed
that their effective protection will eventually/sequentially help reinforce the protection
of other, more substantive labour standards/social fundamental rights.2 Even if a
prominent human rights expert has rejected this approach, arguing that the
prioritisation/sequencing is arbitrary and unjustified and will lead to a simultaneous

1
In this chapter the distinction between European and international trade law is being made because
these trade liberalisation schemes are covered by different legal rules, EC law and WTO law. On
the other hand, simultaneous discussion is warranted given that there are many conceptual and
methodological similarities between the two sets of legal rules. Moreover, experiences in EC law
are often taken as academic and institutional inspiration in the context of addressing similar issues
in WTO law.
2
B. A. Langille, Core Labour Rights - The True Story (Reply to Alston), 16(3) European Journal
of International Law 409-437 (2005); F. Maupain, Revitalization Not Retreat: The Real Potential
of the 1998 ILO Declaration for the Universal Protection of Workers'Rights, 16(3) European
Journal of International Law 439-465 (2005).

Electronic copy available at: http://ssrn.com/abstract=1076647

downgrading of other fundamental rights in the practical reality of policy-formulation,
there is further scope for confronting the rationale/viewpoint underlying the
prioritisation of procedural labour norms.3

There are also arguments made for extension of the list of fundamental rights in the
context of trade law, either explicitly or implicitly (i.e. by methodological
implication). For example, in European Community (EC) trade law, primordial
concerns for economic free movement rules (relating to goods and services etc.) have
long since been phrased ‘fundamental freedoms’, and occasionally in terms of
‘fundamental rights’.4 Many trade liberalisation proponents regard this understanding
and (judicial) use of the ‘fundamental rights’ vocabulary as instrumental to
(legitimising) the evolution of the EC economic integration scheme, and some
propose the adoption of a similar approach to be taken in the context of international
trade law. In human rights literature, diverging interpretations have been proposed as
to how to appreciate this type of resort to fundamental rights terminology to
characterise the nature of economic market freedoms. It is typically discarded as an
opportunistic attempt at co-opting a language with great moral force for narrow
instrumentalist reasons.5 Few, however, appear even to contemplate the possibility
that international and European trade lawyers may actually have an elaborate
conceptual explanation for their viewpoint and thus mean to say that economic market
freedoms are (or ought to be) seen as (inherently linked to) the list of ‘fundamental
rights’, or are to be seen as de facto on the same level normatively.

In other words, both in the cases of ‘sequencing’ and ‘extension’ proposals with
regard to fundamental rights protection in the context of trade law, the basic question
of whether well-developed conceptual thinking exists in support of these applications
of fundamental rights vocabulary tends to remain under-explored in conventional
human rights analysis. In line with the more general submission made above, it is the
premise of this chapter that this is unwise. More particularly, it entails the danger of
marginalisation of the fundamental rights discourse as used by conventional human
rights experts. As it was put by Professor Orford with regard to human rights/trade
discussions: ‘It is not clear whether trade law literature avoids confronting the
challenge that human rights pose to the global trade regime … [there] is a possibility
that human rights law in its current engagement with international economic
institutions may in fact not pose a challenge to trade law’.6 Regaining the centre-stage
in this discussion may therefore depend on the strength of human rights proponents’

3
P. Alston, Core Labour Standards and the Transformation of the International Labour Rights
Regime, 15(3) European Journal of International Law 457-521 (2004); P. Alston, Facing Up to
the Complexities of the ILO' s Core Labour Standards Agenda, 16(3) European Journal of
International Law 467-480 (2005).
4
ECR [1985], Case C-240/83 Procureur de la République v. ADBHU 520, 531, where the
European Court of Justice spoke of ‘freedom of trade as a fundamental right’.
5
P. Alston, Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to
Petersmann, 13(4) European Journal of International Law 815-844 (2002).
6
A. Orford, Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice, 18
Leiden Journal of International Law 179-213, 185 (2005).

3
response to both the proposal for prioritisation of procedural fundamental (labour)
rights, and that for the apparent extension of the fundamental rights list with economic
market freedoms. If the aim is the guarding of the understanding of ‘fundamental
rights’ as cherished by human rights experts, engagement with alternative conceptual
thinking is required.

To start this debate, this chapter will attempt at succinctly identifying the terms of the
apparently varying uses of ‘fundamental rights’ by human rights experts, international
labour lawyers and trade lawyers in the context of European and international trade
law (section 2). It then goes on to highlight some conceptual and methodological
implications of this Babylonian situation of ‘different lists’ in the practical situation of
solving conflicts between ‘fundamental rights’ in the legal setting of a trade court
(section 3). A conclusion will wrap up the discussion (section 4).

2. Diverging uses of ‘fundamental rights’ in the context of international and

European trade law

This section contrasts the use of the fundamental rights vocabulary by human rights
lawyers with its employment by international labour lawyers and European and
international trade lawyers in the context of trade liberalisation. It aims at identifying
the conceptual thinking behind these alternative invocations, focusing on what is
meant or implied rather than what it said. It will be argued that international labour
lawyers’ argumentation for prioritising procedural (social) fundamental rights in this
context is ultimately not convincing (section 2.2). It will also be suggested that
arguments to the effect of extending the list of fundamental rights to include
economic market freedoms, be it in the form of proclaiming a free-standing right to
trade or equating fundamental freedoms to fundamental rights, are conceptually
dubious and cannot, therefore, be accepted (section 2.3). The next section will then
follow up on the findings by providing some observations on implications of the
existence of the parallel fundamental rights vocabularies identified, in particular in
situations of ‘conflicts between fundamental rights’ (section 3).

First, however, to provide a complete picture, it may be useful to take a brief step
back and contextualise trade liberalisation (law) itself as but a part of the process of
economic globalisation. Intriguingly, both sides in these heated discussions resort to
argumentation using ‘fundamental rights vocabulary’. These positions feed in turn
into uses of ‘fundamental rights’ in the more particular context of international and
European trade law in important ways. Here it will be argued that argumentation by
opponents and proponents of the neoliberal version of economic globalisation both
seem to boil down to a form of questioning the interdependence and indivisibility of
fundamental rights as conceptualised in conventional human rights scholarship – and
therefore a type of simplification of the immensely complicated issue of the
interrelationship of economic development and human rights protection (section 2.1).

4
2.1. Uses of the ‘fundamental rights vocabulary’ in the general context of economic
globalisation: different challenges to interdependence

Trade liberalisation (law) itself constitutes but a part of the economic component of
the much wider globalisation process. With regard to the relationship of fundamental
rights and economic development rather diverging visions exist and persist. These
viewpoints constantly play in the background of more detailed discussions, such as
that of the legal interplay of trade liberalisation and fundamental rights. It is revealing
to highlight these visions briefly at this stage of the discussion.

Some liberal development economists have described their view of the

interrelationship between fundamental rights and economic development in detail.
They tend to judge fundamental rights primarily in terms of the extent to which they
facilitate better market functioning, and therefore stress the importance of those that
are particularly instrumental to that end. For example, one economist recently
observed that from an economic development perspective ‘a completely different set
of rights than the economic, social and cultural rights usually discussed in UN debates
[would need to be highlighted]... in the same way that civil and political rights are
about civil and political liberties, economic, social and cultural rights ought to focus,
first and foremost, on the protection of economic, social and cultural freedom … key
ingredients of economic freedom would include personal choice, voluntary exchange
(both domestically and internationally), freedom to compete, and protection of person
and property ... economic freedom has also to do with the extent to which a market
economy is in place.’7

In other words, the argument is that of economic, social, and cultural fundamental
rights only economic rights are grounded conceptually at the level of freedoms in the
context of economic development. Other ambitions can follow later. As Chauffour
observes, ‘there is no doubt that providing everyone with the panoply of economic,
social and cultural rights, including the right to food, housing, clothing, health,
education and other social services would make poverty history and solve the
development puzzle ...[yet] there is something tautological in this approach that offers
little guidance on how to bring about the development’.8

In human rights scholarship the relationship of economic globalisation to fundamental

rights is usually appreciated very differently. Economic globalisation, that places the
working of the market mechanism at the centre, and stresses the virtues of
deregulation and privatisation, is viewed almost entirely negatively. A recent analysis
was not exceptional in starting from the hypothesis ‘that economic globalisation
adversely affects civil, political, economic, social and cultural rights, labour rights and

7
J.-P. Chauffour, Pro-Human Rights Growth Policies, Development Outreach, October 2006,
http://www1.worldbank.org/devoutreach/october06/article.asp?id=381 (visited on 16 October
2007)
8
Ibid.

5
the environment’.9 Another respected human rights scholar observed that ‘the
neoliberal [economic] ideology has undermined the very foundation on which
[fundamental] rights were built’ and concluded that ‘with … market extension
without social consciousness … market globalisation vastly increases economic
inequality between states and within states’.10 More generally, therefore, human rights
law experts have expressed a certain measure of frustration that ‘economic
globalisation is destroying the painstakingly evolved emerging consensus on human
rights [which largely evaporated the dichotomy between civil/political and
economic/social right and led to the evolving minimal consensus on the substance of
human rights]’.11

This dialogue helps identify a number of issues that are also present in the debate
about the interplay between trade liberalisation law and fundamental rights. Firstly,
there is disagreement about the conceptual and normative nature of social
fundamental rights. The development economists’ presupposition is that fundamental
social rights only describe the provision of social services (like health, education) as
an end-product, whereas human rights scholars have pointed out that fundamental
rights are not only a description of the end to be pursued, but are equally important as
means to the fulfilment of their own end. In other words, they circumscribe as well.
As Alston recently rebutted the ‘tautology claim’ as articulated by Chauffour, social
rights ‘do not mean an entitlement to a handout … they are claims to a set of social
arrangements – norms, institutions, laws, and an enabling economic environment –
that can best secure the enjoyment of these rights … it is thus the obligation of
governments and others to implement policies to put these arrangements in place’.12

Secondly, and related, the way in which fundamental rights are discussed by
development economists narrows them down to civil, political and economic rights.
The ‘spill over’ in which economic wealth creation is predicted to result, is not itself
seen to be governed by individual entitlements of the same normative intensity. As
Evans correctly observes:

“within the ambit of market discipline13 … human rights are conceptualised as the
freedoms necessary to maintain and legitimate particular forms of production and
exchange ... these are a set of negative rights associated with liberty, security, and

9
A. Pollis, Human Rights and Globalization, 3(3) Journal of Human Rights 343-358, 344 (2004).
10
A. Eide, The Importance of Economic and Social Rights in the Age of Economic Globalisation,
in: W.B. Eide & U. Kracht (eds), Food And Human Rights In Development - Volume I.,
(Antwerp: Intersentia, 2005), 3-40, 20.
11
A. Pollis, supra note 9, 346.
12
UNDP, Human Development Report 2000, at 73, cited in P. Alston, Ships Passing in the Night:
The Current State of the Human Rights and Development Debate Seen Through the Lens of the
Millennium Development Goals, 27(3) Human Rights Quarterly 755-829, 789, (2005), Emphasis
added.
13
Evans defines this term as ‘the mode of social organisation that operates without the need for
coercion that stresses economic growth and development, deregulation, the free market, the
privatisation of public service and minimum government; T. Evans, International Human Rights
Law as Power/Knowledge, 27(3) Human Rights Quarterly 1046-1068, 1054 (2005).

6
property, which offer a moral and normative foundation for justifying actions with the
current global political economic ... although the … human rights regime is said to
embrace the unity of all rights … market discipline pursues only those rights
necessary to sustain legitimate claims for liberal freedoms ... the catalogue of rights
associated with market discipline therefore describes human beings as individuals
and agents of a particular kind and type … the rights discourse related to market
discipline … de facto provides a context where free will, equality within exchange
relations, and property converge to create social relations primarily characterised by
… gain and private interests, rather than the pursuit of human dignity and
community”.14

The force of this observation is not changed by Trebilcock’s illuminating clarification

that the economic thinking behind market based economic globalisation ‘is not
Pareto-efficien[cy] (where everybody is made better-off), but … Kaldor-Hicks-
efficien[cy] (in that the winners could compensate the losers and still be better off).’15
It does however help us formulate some of the relevant questions more precisely: how
do fundamental rights play into the obligation of ‘winners’ to ensure that ‘losers’ are
compensated? Is compensation (as is seemingly implied in the term) always a reaction
to the initial pursuit of economic globalisation, i.e. does it follow the pursuit of
economic globalisation? Or do fundamental rights pursued together effectively
subscribe under what conditions economic globalisation can be entered into in the
first place? In other words, to what extent does Kaldor-Hicks efficiency correspond to
the balance struck between individual entitlement and community/solidarity in
fundamental rights? It is not the intention to answer these questions here. They are
raised to show that a much more nuanced approach may be needed to bridge the
disciplines of economics and conventional human rights scholarship and appreciate
the implications of ways in which they both use a fundamental rights vocabulary.

Thirdly, conventional human rights scholarship seems to swing to the other side by
denying any possibility of a positive correlation between economic globalisation and
fundamental rights. This is prima facie particularly odd because of the very presence
of economic fundamental rights in their own list. Put crudely, does fundamental rights
law itself not envisage that there should be ‘economic winners’? Is ‘winning
economically’ possible without some form of (market) regulation? More generally,
the unease with giving development economics a place in fundamental rights thinking
may be reflective of their ‘clash’ as disciplines. As Oberleitner points out, however, it
may be a more useful starting-point to see that ‘there is no inherent incompatibility
between the two disciplines … human rights and development economists rely on
different theoretical and philosophical underpinnings ... overcoming absolutist

14
T. Evans, supra note 13, 1056-1057. Emphasis added.
15
M. J. Trebilcock, Critiquing the Critics of Economic Globalization, 1 (1-2) Journal of
International Law & International Relations 213-238, 226 (2005).

7
positions and bridging the gap between the two disciplines requires recognising
economic and social values as human rights and seeing human rights ‘more as a
science than a theology’’.16 Science does not allow one to ignore a part of one’s own
theory.

2.2. International trade law and the core labour standards debate: sequencing the
fundamental rights list by prioritising procedural rights

In 1998 Member States of the International Labour Organisation adopted a

Declaration on Fundamental Principles and Rights at Work.17 This Declaration short-
listed four rights from the numerous ILO conventions, namely freedom of association
and the effective recognition of the right to collective bargaining, the elimination of
all forms of forced or compulsory labour, the effective abolition of child labour, and
the elimination of discrimination in respect to employment and occupation.18 The
most important reason for its adoption were discussions about whether to integrate
labour concerns into the WTO, which had been resisted mainly by developing nations
for fear that it would erode their competitive position. This led to the WTO Singapore
Ministerial Declaration of 1996 pointing to the ILO as the appropriate forum for
setting and dealing with labour standards.

For the limited purposes of the analysis here it is primarily necessary to remember
that the core labour standards are but a subset of human rights norms recognised
under international law.19 In light of this it is important to identify how the short-
listing of the four labour rights/social rights as particularly relevant to the challenge
posed by trade liberalisation20 has been justified. This is all the more necessary as the
idea of core labour standards has since developed into a frequently relied upon
benchmark for locating ‘the relevant’ fundamental rights in the context of
international trade law. As any short-list is defined as much by what it contains as by
what it leaves unmentioned, the question that arises in particular is how the choice of
leaving out numerous other labour rights came about.

Langille has defended the move toward narrowing down the list of labour rights to
those chosen for the ‘core’ as ‘morally compelling, conceptually coherent, and

16
G. Oberleitner, Review of Mac Darrow, Between Light and Shadow: The World Bank, the
International Monetary Fund and International Human Rights Law, (Oxford: Hart Publishing,
2003), 69(4) Modern Law Review 669-672, 671 (2006) (quoting Darrow, 205). Emphasis added.
17
See generally at http://www.ilo.org/dyn/declaris/DECLARATIONWEB.INDEXPAGE (visited on
16 October 2007)
18
ILO Declaration, para. 2.
19
See also A. Cassimatis, International Trade and Human Rights - Which Human Rights?, 6
International Trade & Business Law Annual 19-63, 19, 63 (2001).
20
ILO Declaration, Preamble para. 5: whereas it is urgent, in a situation of growing economic
interdependence, to reaffirm the immutable nature of the fundamental principles and rights
embodied in the Constitution. Emphasis added.

8
pragmatically important’.21 He has claimed that it is a case of (chrono)logical
sequencing – “if you want protection of the non-core, you need to start with the
core”22 – and elaborated that core rights are a consistent set in that they constitute a
package that helps restrict employers’ rights with regard to whom to bargain with,
while saying nothing in the abstract about the substantive outcome of such bargaining
with employees.23 Importantly, moreover, in arguing thus he has presented the
rationale of the short-listing as ‘a shift from international labour standards to
international ... human rights, and not the other way around’.24 In other words, the
newly defined fundamental rights vocabulary of the ILO Declaration is hinted to have
significance for the wider (social) fundamental rights/trade liberalisation discussions,
i.e. beyond the labour standards (which are, after all, the only social rights the ILO
has a mandate to deal with): ‘[t]he key to understanding the core labour rights idea is
that it … calls into question … received wisdom and the comforting dichotomies it
assumes and deploys, between labour rights on the one hand and economic progress
on the other, and even between economic and human rights theory’.25

Maupain, another prominent international labour lawyer, has added a more elaborate
explanation for the move toward core labour standards. Also in his view the selection
is coherent in different respects because:

“there is a …common … thread running through [the core labour standards’]

diversity… freedom from forced and child labour as well as non-discrimination relate
to the autonomy of the will and freedom of association and collective bargaining are
the extrapolation of this autonomy from the individual to the collective level … social
justice … cannot be defined so much in terms of a pre-defined product as in terms of
fair processes which are themselves inseparable from its proclaimed values of human
dignity, freedom and dialogue … the functional coherence rests on their impact on the
achievement of other rights ... as ‘enabling rights’ or process rights, they ‘empower’
workers with the tools that are necessary for the conquest of other rights”.26
Conventional human rights scholars have objected to the idea of core labour
standards, and attacked the logic proposed to defend it. Alston has pointed out that the
standards chosen for the ‘core’ are process, rather than result-oriented27, which stands
in contrast to the idea of interdependence of fundamental rights: ‘acceptance of the
importance of individual liberty and empowerment does not … lead to the conclusion
that the other half of the equation will be addressed automatically if freedom is
secured’.28 Moreover, “the common denominator among the standards chosen is an
attempt to protect freedom of choice, which makes [the standards] not only

21
B.A. Langille, supra note 2, 424.
22
B.A. Langille, supra note 2, 435.
23
Id., 431.
24
Id., 422.
25
Id., 419. Emphasis added.
26
F. Maupain, supra note 2, 448.
27
P. Alston, supra note 3, 487.
28
Id., 477-478.

9
theoretically consistent with free trade, but also required by it”.29 Indeed, it can be
observed that the reasoning used in defence of the slimmed down fundamental rights
list of core labour standards resembles the argumentation of liberal development
economists in some respect 30, and therefore opens itself to the same criticism.31

Beyond that, it is important to stress that from the viewpoint of conventional human
rights scholarship the problem goes deeper than a cosmetic worry about ‘the merger
and acquisition of international human rights law by international labour law’.32 For
international labour lawyers’ argumentation for selecting the ‘core’ as a logical
starting-point in facing the challenge posed by trade liberalisation can also be
questioned on further, perhaps more specific grounds. First of all, the selection of
procedural social rights is questionable on its own terms within labour law. Secondly,
and irrespective of that, the extrapolation of insights within international labour law to
a wider context outside formalised industrial relations is not justifiable. Fundamental
rights protection is about more than workers’ rights protection, and the idea of
interdependence itself is at odds with giving natural preference to securing the rights
of a limited group of people in a limited capacity. These issues will be addressed in
turn.

First, in justifying the move to short-listing procedural social rights, Maupain gave the
following elaboration:

“Workers’ safety and health … even though it may in the strict sense be regarded as
of ‘vital’ importance, cannot be regarded as ‘fundamental’ in the sense of enabling
rights … the guarantee of these fundamental rights [i.e. the four core standards; jm]
is recognised both as an end in itself and as the means to achieve other rights.”33
In other words, the author suggests rights are only ‘fundamental’ when they are
foundational, and they are foundational when they are enabling rights. The point is
that procedural and substantive aspects of labour rights are mutually enabling. For
example, why would it be conceptually more compelling to say that only once
working a worker creates an entitlement to a healthy work environment, while the
substantive presence of such an environment effectively determines the extent to
which (s)he can be a productive worker or trade unionist?

Secondly, there is a deeper problem with representing the idea of core labour
standards as a more general way forward in the context of international trade
liberalisation. The ILO Declaration limits itself to reinforcing minimum entitlements
of those working as a result of their participation in wealth creation, and the

29
Id., 487 (referring to C. McCrudden and A. Davies, A Perspective on Trade and Labor Rights,
(2000) Journal of International Economic Law 43-62, 51-52.)
30
See supra, section 2.1.
31
See supra note 14 and accompanying text.
32
To play on the titles of two articles by P. Alston; see supra note 3 and 5.
33
F. Maupain, supra note 2, 449.

10
possibility for the fulfilment of their needs through working.34 Although this follows
naturally from the limitation in the scope of the ILO’s mandate, it is important to be
aware that this is, in itself, a limiting perspective. For it would seem that for humans
to be effectively rid of forced or child labour, substantive social rights beyond labour
rights need to be pursued in parallel in order to guarantee movement towards an
alternative reality in which everybody can advance parts of human freedom not
primarily linked to industrial relations. So, if international labour lawyers claim that
the move towards core labour standards is a move toward international human rights,
they make general claims from a particular and partial setting and context.

There is no justification, however, for transposing this conceptual thinking, which is

logically restricted ratione personae and ratione materiae, to contexts other than the
world of formalised labour. Speaking of it generally as the most compelling way
forward in a situation of increasing economic interdependence is unconvincing. As
Langille himself seems to point out, procedural guarantees to ensure greater
reciprocity of freedom of contract only see to the framework in which interaction can
take place, and not the substance of any resulting deal. Such a purely procedural
viewpoint cannot be a guarantee of social justice, simply because not everybody
affected is represented in/has access to the relevant industrial democracy. Moreover,
conditions beyond work for individuals to pursue their own freedoms need to be
created simultaneously. Working is an important avenue for that, but education, health
and housing are also substantive social rights. In other words, there are many aspects
of unfreedom that are not directly linked at all to industrial relations and the market.
They nevertheless need to be inserted into discussions in order to come to a fairer and
more balanced conceptual and legal assessment of the appropriate scope of trade
liberalisation.35 The ILO is a valuable institution to address part of this challenge.

The vocabulary of fundamental rights as employed by international labour lawyers

should therefore be appreciated in terms of it speaking to the partial world of work.
Practical considerations such as scarcity of resources cannot be used to narrow the
conceptual basis for fundamental rights. Instead, they should get their place at the
stage of application only, against the background of the conceptual idea of
interdependence and indivisibility of all (aspects of) fundamental rights. In that
respect it may well be that, on these terms, an approach to labour rights protection that
particularly emphasises securing procedural rights is worth considering as a strategy
in the context of formalised industrial relations – at the level of application rather than
at the conceptual plain. Finally, although it has been argued here that international
labour lawyers’ argumentation eventually falls flat in conceptual terms itself, as a
result of the fact that the reach of trade liberalisation’s impact on a society is much

34
See ILO Declaration, preamble para. 7; Whereas, in seeking to maintain the link between social
progress and economic growth, the guarantee of fundamental principles and rights at work is of
particular significance in that it enables the persons concerned, to claim freely and on the basis of
equality of opportunity, their fair share of the wealth which they have helped to generate, and to
achieve fully their human potential. Emphasis added.
35
B.A. Langille, supra note 2, 430.

11
wider than can be covered by labour law, there may still be conceptual lessons to be
drawn from their efforts for conventional human rights scholarship, namely:
fundamental economic rights matter. This will be addressed briefly at the end of the
next section.

In conclusion, even if international labour lawyers and human rights experts are likely
to agree on the norms deserving a place on the social norms on the fundamental rights
list, they appear to disagree about the way they need to be applied to come to
effective improvement in their protection in the long run. As the reasons given for
prioritised application of procedural social rights were shown not, in fact, to be
supportable if labour law itself is contextualised, there may be avenues for human
rights lawyers and international labour lawyers to aim at converging their efforts in
socialising trade liberalisation.

2.3. European trade law and the nature of economic free movement rules: extending
the fundamental rights list to include economic market freedoms

Economic market freedoms are the cornerstone rules in trade law that regulate the
conditions for free circulation of goods, services, capital and persons in the
framework of establishing a common economic market. In EC law their effective
application has long since been understood as the driving force for the realisation of
the internal market and the advancement of economic integration.36 Reflecting their
import in this context they have come to be judicially expressed, and interpreted, in
terms of their being ‘fundamental freedoms’. This logic has in turn led to a seemingly
widely held institutional understanding that ‘there is no hierarchy between
fundamental rights and fundamental freedoms as far as EC law is concerned’.37 Many
trade liberalisation proponents regard this understanding and (judicial) use of the
‘fundamental rights’ vocabulary (or, if you will, the vocabulary of ‘equal
fundamentality’) as instrumentally very important to the evolution of the EC
economic integration scheme. They also lean heavily on the moral force that the
language of fundamental rights gives to legitimise the continuing development of the
type of trade liberalisation they like to see promoted, both in the EC and the WTO.
This subsection seeks to identify some important aspects of the thinking behind this
position. It will be argued here that it boils down to a complex and multifaceted
argument for extending the list of fundamental rights in the context of trade law,
either explicitly or implicitly (i.e. by methodological implication).

The trade liberalisation law/fundamental rights debate is very heated, but also often
remains unclear in conceptual terms. The difficulty in appreciating the virtue of the

36
As it was recently put in a speech by the president of the European Court of Justice, V. Skouris,
Fundamental Rights and Fundamental Freedoms: The Challenge of Striking a Delicate Balance,
(2006) European Business Law Review 225-239, 226.
37
Id., 239.

12
argumentation of each side of the debate is that it is rarely made clear, and is often
extremely hard to discover, precisely what the conceptual building blocks are for
reaching conclusions. Take the following observations by two eminent scholars in
their respective fields of human rights and international trade law that apparently
show varying views without it becoming very clear where the eventual disagreement
lies:

Trade is not an end in itself, but a tool which can be useful for economic and social
development, provided it is adequately regulated, taking the different contexts and
interests into account ... necessary safeguards must be made simultaneously with each
stage in the liberalisation, they cannot be postponed until later – and if they cannot be
adopted, the liberalisation should not proceed.38

[The inspiration to see more to life than money does not provide a normative basis for
the position that human rights should peremptorily trump trade law] ... there is a great
nuance here ... the rights to trade – including those to a vocation and a livelihood – are
not necessarily inferior in priority to certain other rights ... we can think of
circumstances in which there may be deep normative import, if not normative
superiority, attaching to trade values; for example, trade disciplines may alleviate
poverty in a very significant way at the expense of modest incursions on human rights
... not all human rights are peremptory, and some, like the right to health, are
dependent on states’ financial resources ... while there is indeed more to life than
money, much of what is good in life becomes available, or enjoyable, only after
sufficient resources are secured. 39

In an attempt to pin down some aspects of this discussion a little more clearly, it is
here proposed to distinguish between a number of possible explanations of trade
lawyers’ argumentation in these discussions (or opponents’ understanding of their
argumentation). For the purpose of this chapter it is important to observe that each of
these viewpoints would have an impact on the way norms on the list of fundamental
rights (as understood by conventional human rights scholarship) would be balanced
inter se in case of conflict, the balance always tipping in favour of a more economic
outlook. Possible ways of understanding trade lawyers’ argumentation or concerns in
conceptual terms include:
1. A prioritisation of (some of) those (civil, political, economic and social)
fundamental rights that facilitate the operation of the market economy in the context
of trade liberalisation
2. An extension of the fundamental rights list with (to be newly recognised)
economic fundamental rights, including a ‘free-standing fundamental right to trade’,
the right to property and the right to contract

38
A. Eide, supra note 10, 35.
39
J. P. Trachtman, Book Review: Conflicts of Norms in Public International Law: How WTO Law
Relates to Other Rules of International Law, of J. Pauwelyn (ed.), (Cambridge University Press,
Cambridge, 2003), (2004) 98 American Journal of International Law 855-862, 856. Emphasis
added.

13
3. An extension of the list of fundamental rights with economic market freedoms, by
equating economic market freedoms to fundamental rights directly
4. An elevation to a normative level equal to that of fundamental rights of economic
market freedoms that are presented as facilitating the protection of fundamental rights
(i.e. an indirect equation of economic market freedoms to fundamental rights)
5. (Giving proper consideration or weight to economic fundamental rights that are
already on the list of fundamental rights)

It is rare for each of these arguments to be made in isolation. Many of the possibilities
listed get mixed somehow by those aiming to defend or rebut an extension of the
fundamental rights list, and they are linked in important ways. Some aspects of the
first possibility have already been rebutted above (section 2.1). In the remainder of
this section, mainly the second to the fourth possibility will be discussed. It will
emerge that each element must be responded to differently from the viewpoint of the
values defended by conventional human rights scholarship. The last option for
conceptually accommodating the issues that trade lawyers raise - giving proper
consideration or weight to economic fundamental rights already on the list of
fundamental rights - will be discussed toward the end of the next section of the
chapter. This option, which could include a reconsideration of the scope of some or all
economic fundamental rights already on the fundamental rights list will be presented
as the most convincing way of dealing with the issues identified by trade lawyers
within a fundamental rights framework (section 3).

With regard to the second and third possible explanations of trade lawyers’
arguments, the proposals for the addition to the fundamental rights list of rights or
principles of a primarily economic nature in response to the challenge of convincingly
connected trade liberalisation and fundamental rights protection would appear rather
radical. It may be useful to recall, however, that there seems to be little reason to
disallow extension of the fundamental rights list as a matter of principle. It is
sometimes argued that other interests or insights should also be called fundamental
rights.40 Moreover, particularly in the field of fundamental rights, new norms are
often judge-made. Therefore, it makes little sense, logically, to give the impression
that claims cannot be elevated to fundamental rights status for the reason that they are
not yet mentioned in a human rights instrument.

Be that as it may, it does not seem that anyone has argued for the inclusion of a free-
standing right to trade. The work of Petersmann has sometimes been interpreted as

40
See, e.g., C. Dresler and S. Marks, The Emerging Human Right to Tobacco Control, 28 Human
Rights Quarterly 599-651, 629 (2006) (“our claim is that the evidence [regarding the harmful
effect of the production, marketing and consumption of tobacco control] has become so
compelling and the policy priorities have evolved so far that strong case can be made for the
emergence of an implied derivative human right to tobacco control”.)

14
arguing for it. He has, however, denied having intended that claim.41 On close
analysis it appears that understandings of his work as arguing for a ‘free-standing
right to trade’ are more a form of short-hand for (questioning the wisdom of) adding
more economically oriented rights and principles to the fundamental rights list.

Criticisms on more detailed terms have been voiced against Petersmann’s work as
well. They have been described as relating to the fact ‘that key terms [he uses] remain
ambiguous, that his vision effectively represents a radical libertarian free-trade
agenda, and that he borrows the legitimacy of human rights while selectively ignoring
their substance’.42 Alston has described his views as a ‘strong version of claims made
on behalf of property rights and free trade’.43 From the viewpoint of the breakdown
presented above, these criticisms appear united in understanding his argumentation as
essentially consisting in a mixture of the second and third possible way to change the
fundamental rights vocabulary applicable to trade law, i.e. an argument that what is
needed for an optimal connection of fundamental rights protection to trade
liberalisation is the addition of further economic fundamental rights to the
fundamental rights list and/or an extension of the list of fundamental rights to include
economic market freedoms. Interestingly, Petersmann himself has also rejected these
representations of his views.44

It is submitted here, that Petersmann’s work is more usefully characterised in a more

subtle way. To illustrate this point, consider the following passage in one of Ernst-
Ulrich Petersmann’s writings45:

The EC Treaty provides for comprehensive legal and judicial protection of

fundamental individual ‘market freedoms’, non-discrimination and social rights …
[w]orldwide economic agreements, including the WTO Agreement, do not link their
legal protection of market access and economic freedom to protection of human rights
… yet … WTO rules of freedom of trade across frontiers, non-discrimination and rule

41
E.-U. Petersmann, Taking Human Dignity, Poverty and Empowerment of Individuals More
Seriously: Rejoinder to Alston, 13 (4) European Journal of International Law 845-851, 846
(2002).
42
A. Lang, Book Review: D. Cass, The Constitutionalization of the World Trade Organization,
(Oxford: OUP, 2005), 17(1) European Journal of International Law 309-312, 311 (2006). Lang
describes the views of ‘others’ in those terms.
43
P. Alston, supra note 5, 844.
44
E.-U. Petersmann, Book Review: D. Cass, The Constitutionalization of the World Trade
Organization, (Oxford: OUP, 2005), (2006) Common Market Law Review 890-892, 890: “Cass
imputes to this reviewer the view that ‘the WTO agreements consist of a series of human rights’
[and] that my plea for a ‘human rights approach to international trade’ is ‘fixated on only one
category of human rights, namely individual economic rights’. The present reviewer would
categorise this as an absurd presentation of his views.” Another reviewer has however very
differently evaluated the book by Dr. Cass on this point, suggesting that she has taken “an
admirably nuanced approach … to Petersmann’s work.”; A. Lang, supra note 42, 311.
45
E.-U. Petersmann, Trade and Human Rights I, in : P.F.J. Macrory et al. (eds.), The World Trade
Organization: Legal, Economic And Political Analysis - Volume II, 623-661, 632-633 (New
York: Springer, 2005).

15
of law can serve ‘human rights functions’ by protecting individual freedom, non-
discrimination, legal security and social welfare across frontiers … economics
demonstrates that ‘individual rights are a cause of prosperity’46 [and that] economic
welfare can be increased by the ‘successful struggle for rights of which the right to
property is the most fundamental’47.

This is a complex and wide-ranging statement and it is not necessary here to engage
with every aspect of it.48 Rather, it is submitted that the heart of the reasoning is the
normative claim about how rules that ensure freedom of trade across borders,
supported in part by the understanding of these economic market freedoms as
individual rights, result in aiding the protection of all fundamental rights. It is
essentially an articulation and defence of the fourth possible way to understand trade
lawyers’ argumentation in the trade/fundamental rights debate, i.e. the viewpoint that
economic market freedoms require elevation to a normative level equal to that of
fundamental rights for the reason that they facilitate the protection of fundamental
rights (or, as Petersmann himself puts it, serve ‘human rights functions’).

It will be argued here that this view, which may be seen as boiling down to an indirect
equation of economic market freedoms to fundamental rights, needs to be rebutted.
The grounds for this rebuttal are multi-faceted. This appears to be so in particular
because the fourth viewpoint of trade lawyers’ argumentation has strong conceptual
and logical links with calls to extend the fundamental rights list with rights and
principles of a more economic nature (the second and third possibilities), and in

46
Ibid., referring generally to the book by M. Olson, Power And Prosperity, (New York: Basic
Books,2000).
47
E.-U. Petermann, supra note 46, referring generally to the book by R. Pipes, Property And
Freedom (New York: Alfred A. Knopf, 1999).
48
The claim about the measure of social rights protection that the EC Treaty (or the ECJ) provides,
or the argument about the economic nature of the linkage of individual rights protection and
prosperity are both debatable claims according to the present author. If for no other reasons, they
are interesting for revealing parts of Professor Petersmann’s assessment of the extent to which the
EC economic legal regime is capable of protecting fundamental rights and his intellectual beliefs
with regard to economic principles underlying trade liberalisation. Apart from that, the claim
about the right to property appears to be directly in line with the viewpoint that some economic
fundamental rights need to be given a higher priority in the context of trade liberalisation and/or
that the list of economic fundamental rights needs to be extended to include new economic
fundamental rights, such as the right to property and the right to contract (the third possible
explanation of trade lawyers’ argumentation). This is not surprising, as Professor Petersmann has
previously argued that the fact that the right to property and freedom of contract have not been
recognised in the ICESCR “reflects an anti-market bias which reduces the Covenant’s
operational potential as a benchmark for the law of worldwide economic organisation and a
rights-based market economy and jurisprudence”; E.-U. Petersmann, Time for a United Nations
'Global Compact'for Integrating Human Rights into the Law of Worldwide Organizations:
Lessons from European Integration, 13(3) European Journal of International Law 621-650, 628-9
(2002). This observation has been described by Howse as “a question-begging manner of making
the case that property and contractual rights should be recognised as fundamental rights at the
international level”; R. Howse, Human Rights in the WTO: Whose Rights, What Humanity?
Comment on Petersmann, 13 (3) European Journal of International Law 651-659, 654 (2002)
(emphasis in original).

16
important ways conceptually hinges on these. In the context of this section only a
number of aspects will be highlighted.

A first underlying issue is the difference in nature between economic market freedoms
and fundamental rights. Even if this is no longer frequently pointed out, many
commentators view fundamental rights and economic market freedoms as ‘essentially
different’49, ‘especially as regards their basic objective ..’50. As Lohse recently
wrote51, the structural differences between fundamental rights and economic market
freedoms lie in the fact that protection of the first finds ‘justification in human dignity
and the high value of humanity as such’. The rationale of economic market freedoms
is ‘to prevent protectionist behaviour of Member States in the form of discriminating
against production and products from other Member States’ for the purpose of which
the protection of individual rights aspects of economic market freedoms is
importantly instrumental. Therefore, conceptually, the resulting freedom for the
individual is not the ratio underlying fundamental economic market freedoms, but
simply a spill-over of Member States obligations to each other (through the EC). As a
result, as it was put by Kombos, ‘[economic market] freedoms are about economic
considerations and any fundamental right resulting from the protection of a[n
economic market] freedom is incidental.52

Even if their equation is therefore conceptually shaky, and even if fundamental rights
proponents will not be satisfied with fundamental rights protection that is merely
‘incidental’, many trade law commentators are very ambiguous about the respective
nature of fundamental rights and economic market freedoms in their writings. For
example, a recent introduction to a book about trade and human rights, included
passages that appear to characterise market freedoms differently:

The guarantee of market freedoms should go hand in hand with human rights
protection as the first is a precondition to resolve the grave challenges with respect to
the social and economic human rights the world is facing today … on the other hand,
human rights need to balance the exercise of market freedoms.53

49
E. J. Lohse, Fundamental Freedoms and Private Actors - towards an ' Indirect Horizontal Effect'
,
13(1) European Public Law 159-190, 172 (2007).
50
Id., 159.
51
Id., 173-174.
52
C. Kombos, Fundamental Rights and Fundamental Freedoms: A Symbiosis on the Basis of
Subsidiarity, 12(3) European Public Law 433-460, 435 (2006). Emphasis added. For a more
sophisticated argument that economic market freedoms have both an individual freedom-aspect
and a technical non-discrimination aspect, arguing that there may be grounds for the individual
freedom aspect of economic market freedoms to be equated to fundamental rights, see E.J. Lohse,
supra note 49.
53
T. Cottier (et al.), Introduction, in: T. Cottier (et al.) (eds.), Human Rights And International
Trade, 1-28, 4 (Oxford: Oxford University Press, 2005).

17
Human rights including market freedoms provide an overall normative framework,
based upon which conflicts of competing policy goals and rights can be addressed.54

This conceptual ambiguity becomes problematic if it is linked to the observation

about the non-self executing legal nature of social and economic rights fundamental
rights and contrasted to the legally stronger framework of trade law:

Social and economic rights are not self-executing and the required implementation
will often take place by means of economic law and be supported by trade policy
measures… trade policy measures helping to implement human rights need to be
embedded within the principles of international economic law in order to be effective
and successful … the suggestion by Petersmann to the effect of recognising market
rights may be a means to bridge the principles of international economic law with
human rights concerns.55

In other words, there is a danger that because of the reasoning that is presented here as
a strictly legal matter, fundamental rights will be selectively detached from their
methodology. Other economic interests than those already represented in the list of
fundamental rights are added to the balancing act. Both direct and indirect equation of
economic market freedoms to fundamental rights can boil down to an enhanced
normative representation of economic interests in the form of the importance given to
economic market freedoms, either as fundamental rights in their own right or as
norms that need to be methodologically equated to them. There is an imbalance
precisely because economic interest are already part of the number of different
rationales that underlie fundamental rights themselves, namely in the form of
economic fundamental rights.

This point was also raised by Leader in his illuminating analysis: ‘even if the exercise
of the right to freedom of trade qualifies as fundamental in the international system, it
does not follow that the WTO should give it systematic priority of other rights’.56
Trade lawyers would probably say that systematic prioritisation results from legal or
fundamental rights that are not self-executing.57 But fundamental rights lawyers can
answer that such a reply finally implicitly reasons on two levels. Quite irrespective of
the fact that the protection of many (procedural aspects of) ‘non controversial’
fundamental rights also hinges on resources58, practical concerns such as scarcity of
resources (of which non-self execution is a legal translation) cannot, themselves, be
elevated to the conceptual level – it should not be seen as affecting the nature of, say,
social fundamental rights as fundamental rights. In justifying a particular viewpoint,

54
Ibid. Emphasis added.
55
T. Cottier, supra note 53, 19.
56
S. Leader, Trade and Human Rights II, in: P.F.J. Macrory (et al.) (eds.), The World Trade
Organization: Legal, Economic And Political Analysis - Volume II, 663-695, 667 (New York:
Springer, 2005).
57
See also J.P. Trachtman, supra note 39.
58
E.g. building and maintaining prisons, organising elections, setting up and maintaining a police
force, etc.

18
the legal cannot be convincingly presented as the conceptual ground itself. This is
particularly problematic in the field of fundamental rights, as their invocation “tends
to come mostly from those who are concerned with changing the world rather than
interpreting it.” 59

This leads to the more fundamental critique of the fourth possible way in which trade
lawyers propose to link fundamental rights to trade law. Whereas international labour
lawyers over claim their viewpoint by not seeing beyond the world of work while
trade liberalisation’s effect reaches much further, also seeing everything as a market,
in terms of competition, oversimplifies matters. Measures to ensure solidarity cannot
be seen solely in terms of economic spill-over, but need to be part of the equation (or:
the balancing) ab initio.60 Equating economic free movement rules which stem from
essentially economic thinking to fundamental rights that embody a much wider set of
considerations upsets the balance present in the current body of fundamental rights
norms, the balance between the various values necessary for people to fulfil their
needs as individuals and members of a community. Formal or de facto elevation of
more norms with an economic rationale to the level of fundamental rights will
destabilise the balance between the rationales underlying fundamental rights that
make for a much richer world vision.

In conclusion, with regard to international trade lawyers’ perception of fundamental

rights in the context of trade liberalisation by means of extending the fundamental
rights list by explicitly or methodologically including economic market freedoms in it
(often in addition to implicit sequencing of the fundamental rights list by means of
prioritising economic fundamental rights), human rights experts and economic
lawyers seem, at heart, to disagree conceptually about the nature of the norms that are
formally or de facto to be placed on the list of ‘fundamental rights’. It is important for
human rights scholarship to be aware of the presence of ‘different lists of fundamental
rights’ when attempting to get ‘their’ fundamental rights heard in contexts where the
‘other’ mindset may be prevalent. Some of the promises and challenges will be
discussed in the next section.

3. Re-approaching ‘conflicts between fundamental rights’ in the context of

international and European trade law: identifying conceptual and methodological
promises and challenges beneath and beyond Babel

It was indicated in the previous section that in the context of neoliberal economic
globalisation and its sub-contexts of international and European trade law various
different ‘fundamental rights vocabularies’ are being used simultaneously. Their
parallel employment has the potential to lead to numerous misunderstandings on

59
A. Sen, Elements of a Theory of Human Rights, 32(4) Philosophy & Public Affairs 315-356, 317
(2004).
60
See also A. Eide, supra note 38.

19
many different levels. It is impossible to map the implications of this Babylonian
situation in any comprehensive sense here. These issues merit more detailed
exploration. What the remainder of this section intends instead is simply to list a
number of conceptual and methodological promises and challenges that may be
particularly important for conventional human rights scholarship to keep in mind in
(re-)approaching ‘conflicts between fundamental rights’ in the context of trade law.

First of all, it could be said that the existence of different fundamental rights
vocabularies holds some promises for fundamental rights protection in the context of
trade liberalisation. For, while stress has been placed on the fact that the fundamental
rights lists diverge, there are great overlaps as well. What could be the potential of
diverging vocabularies? From the viewpoint of a pragmatic and optimistic human
rights advocate, one way of viewing the situation is that at least some fundamental
rights have already been recognised as important to the context of trade law. The
promise of the inclination to link economic fundamental rights and procedural social
fundamental rights to the operation of trade liberalisation conceptually is that these
types and parts of fundamental rights can then be characterised as trade concerns
rather than non-trade concerns. By implication, the protection of these fundamental
rights can then be conceptualised as trade concerns rather than non-economic
interests.61 Although in making this point it should continue to be stressed that
economic fundamental rights and procedural social fundamental rights are but a part
of the broader fundamental rights agenda, it may help make the debate more nuanced
to the effect that it may not always be helpful to characterise fundamental rights as
non-trade and non-economic concerns. It potentially makes it more obvious, for trade
lawyers in particular, that their system is not a normatively watertight set of norms.
As it was put by Leader, “there needs to be a willingness to place human rights on
both sides of the divide between trade and non-trade interests”.62

On the other hand, the Babel of diverging fundamental rights vocabularies also
implies many challenges for fundamental rights protection. A first challenge is
creating a better awareness among human rights advocates of the institutional setting
of the EC and WTO when they call for greater fundamental rights sensitivity. In
particular, in light of the conceptual observations in the previous section, it must be
asked whether and how ‘fundamental rights’ as understood by human rights experts
can be expected to be safeguarded by judicial mechanisms that likely
methodologically approach them de facto as but a sub-set of their own legal setting’s
‘fundamental rights’. What are the prospects and limits of this situation resulting both
from intellectual convictions and from a legal and institutional setting? Here this issue
will only be addressed from the limited perspective of interpretational experience with
exception clauses present in the EC Treaty, and proposals to this effect made for

61
Petersmann, for example, appears to characterise the protection of human rights as a ‘non-
economic benefit’ of integration law; E.-U. Petersmann, supra note 41, 849.
62
S. Leader, supra note 56, 691.

20
WTO trade agreements by none other than the Office of the High Commissioner for
Human Rights.63

It is often argued that a particularly promising avenue of reconciling fundamental

rights with trade law lies in a generous application of general exception clauses
present in several of the trade agreements, because of similar legal structures of
allowing exceptions to the main regime, being either trade law or human rights law.
For example, it has been argued that ‘the balancing principles in the exception clauses
in international trade law, such as non-discrimination, necessity and proportionality of
restrictions of individual freedom, and rights of individual access to courts, are similar
to the balancing principles in the exception clauses in human rights treaties [referring
as an example to Article 4 ICESCR]; from a human rights perspective, both serve
complementary functions for protecting individual freedom, non-discrimination and
the rule of law’.64 It is suggested here, however, that the limited practice in the EC
setting shows that the conceptual and institutional mindset of trade lawyers also
importantly limits prospects of fundamental rights protection via trade courts (even if
trade lawyers and human rights lawyers use the same legal vocabulary such as non-
discrimination, necessity, proportionality.. etc.).65 Those that talk the talk of
‘fundamental rights’ will not necessarily walk the walk (or waltz the waltz) expected
or desired by conventional human rights scholarship in methodological terms.
Therefore, caution should be applied in extending this practice to the WTO level.

In this context it may be illustrative to touch briefly upon particular suggestions for
use of ‘public morality’ clauses as present in exception clauses of various WTO trade
agreements for the purpose of advancing fundamental rights. Such wording is also
present in the EC treaty’s exception clauses to market freedoms. It is submitted here
that from the viewpoint of fundamental rights protection public morality wording is
logically problematic to integrate concerns for fundamental rights. Public policy
grounds that are present both in GATT/S and the EC on the one hand, and in human
rights treaties on the other, are generally only invoked to restrict rather than facilitate
fundamental rights. Public morality, just like similar clauses such as public security
and public policy, are therefore conceptually different from fundamental rights and
function as their limitation.66 In light of the fact that public morality serves as a limit
to individual entitlements in fundamental rights law, it is hard to see how fundamental
rights can be properly integrated into trade agreements through a legal concept that
serves as an exception to their own application. This essentially amounts to
suggesting a legal avenue to invoke fundamental rights in a trade context through
their own exception, and thus to a legal contradiction from a fundamental rights

63
Office of the High Commissioner for Human Rights, Human Rights and World Trade Agreements
- Using General Exception Clauses to Protect Human Rights, December 2005, website:
http://www.ohchr.org/english/about/publications/docs/WTO.pdf (visited on 16 October 2007)
64
E.-U. Petersmann, supra note 45, 627.
65
See for more extensive analysis, J. Morijn, Balancing Fundamental Rights and Common Market
Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution,
12(1) European Law Journal 15-40 (2006).
66
Id, 39.

21
viewpoint. In that light it is suggested that, following similar proposals made with
regard to the EC context67, human rights experts may do better to push for a
legislative, or judge-made sui generis WTO trade exception ground to raise
fundamental rights concerns.

In the absence of such an explicit legislated or judicially created clause for the
moment, it needs, at least, to be appreciated that there may be a difference of
perception when a ‘conflict’ between an economic market freedom and a fundamental
right actually occurs. Whereas fundamental rights lawyers may not appreciate a clash
of this type as a conflict between ‘fundamental rights’, trade lawyers actually could;
after all they may consider the market freedom at play as a fundamental right of its
own, or believe that a normative equation of another sort is the way forward.
Moreover, as a practical matter, one needs to be aware that as a result of the
institutional setting of trade courts trade-related concerns will need to be addressed
first.68 Therefore, upholding a standard considered a fundamental right by human
rights advocates typically not only comes to be phrased in terms of a ‘restriction’ on
an economic freedom (already a defensive stance), but also as the underlying party in
one of two fundamental rights in the balance.

In this light human rights proponents involved in (arguing the case for) the balancing
act resulting from the ‘conflict’ identified should look for ways in which ‘their’
fundamental rights norms are brought up, and come to be judicially approached, in
accordance with ‘their’ methodology. This would involve a pragmatic ‘balancing act’
of its own, involving consideration of whether:

1. the fundamental right’s normative content is understood well enough in the

particular trade context in which the conflict arises69
2. the tension placed upon the fundamental rights is sufficiently evident
3. the ‘defence’ could be based on one of the more conventional grounds listed in the
exception clauses with a similar result.

Appreciation of each of these elements may lead to the conclusion that it may be
better to avoid the settlement of conflicts between ‘fundamental rights’ (as understood
in conventional human rights scholarship) in trade courts, at least until a clearer
common fundamental rights vocabulary has been articulated.

67
Ibid.
68
V. Skouris, supra note 36, 239: “It is often implied that criticisms of alleged fundamental rights
insensitivity by the European Court of Justice when it considers market freedoms in cases where
there is tension between them misunderstands that the legal context in which they come to be
considered is one in which market freedoms have to be looked at first.”
69
See, for example, R. Howse, supra note 48, 656: “[D]epending on human rights analysis to make
[a case] about the conservation of exhaustible natural resources seems questionable [as] the
extent to which environmental concerns are appropriately translated into the notion of
‘environmental rights’ is quite controversial, and in the presence of this controversy, and given
the institutional context of the WTO, the Appellate Body might well be inclined to take a cautious
or conservative view”.

22
A second challenge is the need for a willingness to review the argumentation of
human rights scholarship critically with regard to trade liberalisation so far. For Babel
may also in part be caused by conventional human rights scholarship because of the
way fundamental rights are conceptualised. There are two main points here that
deserve particular reflection. Howse recently observed, in a critique of overly
deterministic visions of the fundamental rights/trade interrelation, that:

“[t]he relation of market freedom, or free trade, to human rights is in almost all
situations a complex one, which cannot be well grasped by thinking in general terms
about ‘synergies’, not in terms of linear or teleological progression from economic
integration to human rights-based constitutionalism”.70
This observation would be equally critical of overly deterministic modes of reasoning
claiming that market freedom and free trade always end up harming fundamental
rights in one way or another. This links in with the uncomfortable feeling that
conventional human rights scholarship, in criticising economic globalisation
generally, seems to be ‘reasoning away’ the very category of fundamental economic
rights. A fundamental rights protection theory ignoring the importance of protecting
individuals pursuing economic activity, and the resulting greater scope for solidarity
measures through taxation of the earnings, envisions a car without an engine.
Importantly, this could be appreciated as much in terms of challenging the
indivisibility and interdependence of fundamental rights as the ‘engine without a car’
argumentation with which human rights advocates point their finger at the reasoning
of trade lawyers and labour lawyers in this context.

A second and connected point related to the appreciation of the nature of trade
liberalisation by human rights scholarship, and particularly seeing it as unconnected to
a wider development agenda. Alston has recently observed that human rights
professionals working in development policy increasingly opt ‘to be more selective
and to set priorities’71. As long as this process does not operate on the basis of some
fixed hierarchy of rights, such contextual prioritisation is not seen as a priori at odds
with indivisibility and interdependence72. As Alston justifies:

“If every possible human rights element is deemed to be essential or necessary, then
nothing will be treated as though it is truly important ... a list of requirements that is
too demanding or ignores trade-offs and dilemmas is unlikely to be taken seriously by
practitioners who are operating under major resource and time constraints and are
faced with competing priorities and the need to make difficult choices.”73

70
R. Howse, supra note 48, 652.
71
“If every possible human rights element is deemed to be essential or necessary, then nothing will
be treated as though it is truly important ... A list of requirements that is too demanding or ignores
trade-offs and dilemmas is unlikely to be taken seriously by practitioners who are operating under
major resource and time constraints and are faced with competing priorities and the need to make
difficult choices”; P. Alston, supra note 12, 807.
72
Id., 808.
73
Id., 807.

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This begs the question of why this reasoning cannot apply to trade liberalisation. Why
is it that such ‘pragmatic/contextual prioritisation’ cannot be undertaken in a trade law
context? After all, the WTO Preamble clarifies the WTO’s envisaged telos as
including ‘.. raising standards of living, ensuring full employment … and expanding
the production of and trade in goods in services, while allowing for the optimal use of
the world’s resources in accordance with the objective of sustainable development
…’. Moreover, the current trade negotiation round at the WTO is termed the Doha
Development Round.

In that light it is submitted here that Alston’s suggestions should be seen as equally
applicable to the way fundamental rights protection should be approached in relation
to trade liberalisation. This type of pragmatic prioritisation cannot, however, proceed
on the basis of a complete exclusion of a type of rights (economic, social, cultural,
civil or political) or the nature of the rights (procedural or substantive), but would
depend on the particular context. Moreover, which human rights norms are
sufficiently well understood to be usefully addressed at all in a trade liberalisation
context needs to be studied closely. As Amartya Sen has observed74, such a self-
questioning attitude would not weaken the application of human rights theory to the
real world. Rather, it would reinforce its credibility.

4. Conclusion

As its starting-point, this chapter has taken the view that human rights experts need to
address the use of the fundamental rights vocabulary by international labour lawyers
and European and international trade lawyers in the context of trade liberalisation in
detail, rather than dismissing it out of hand as being prima facie wrong-headed.
Practices to apply a ‘sequenced’ or ‘extended’ version of a ‘fundamental rights list’ as
conventionally understood by human rights experts amount to more than a short-
sighted watering down of ambition in the face of economic and political realities or a
strategic attempt at co-opting a language with great moral force. To avoid the
marginalisation of their own fundamental rights discourse, it is paramount and urgent
for human rights experts to address the rationale presented in defence of these
practices at the conceptual level. Greater effort should be put into critically engaging
with the vision behind prioritising procedural fundamental rights and the rationale of
dubbing economic market freedoms as ‘fundamental’. Human rights scholars’ greater
willingness to re-assess the nature of trade liberalisation critically, and its potential for
fundamental rights protection, in particular, would also make for a more balanced
debate. In the meantime, in the face of the Babylonian confusion about ‘fundamental
rights’, human rights experts also need to think about the practical implications, both
promising and threatening, of the alternative fundamental rights vocabularies in
circulation.

74
A. Sen, Human Rights and the Limits of Law, 27(6) Cardozo Law Review 2913-2927, 2923
(2006).

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