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Tel (Law Dep.): +55 21 3114 1647/1649/1650

Managing Committee:

João Ricardo Dornelles, Carolina Campos Mello,

Márcia Nina Benardes, Florian Fabian Hoffmann

Research Dynamic on Law, Governance and Sustainable Development

Université de Montréal

Facultés Universitaires Saint Louis (Bruxelles)

Núcleo de Direitos Humanos do Departamento de Direito da PUC-Rio

Laboratoire d’Anthropologie Juridique de Paris, Université Paris 1 Panthéon / Sorbonne

General Coordinators: Christoph Eberhard & François Ost

Project Coordenators NDH:

Marcia Nina Bernardes, Liszt Vieira, Florian Hoffmann

Workshop on

“Governance, (Sustainable) Development, and Human Rights:

the Brazilian context, Southern perspectives, and new international articulations”

Issue Area I

The International Trade Regime

Background

Economic integration through (free) trade and (economic and social) development have been two prominent, if, for the most part, fairly distinct issues on the international agenda. Both are currently living through critical moments: in the case of international trade, the watershed of the WTO’s Seattle summit in 1999 has brought to the fore the deep divisions not just between industrialised and development countries, but also between proponents and critics of (economic) globalization the world over. It has shown the formidable political force which an organised global civil society can attain, and it has laid open the weaknesses of purely state-based multilateral mechanisms. For many, the failure of the 2003 Cancun summit has not merely confirmed the trend initiated in Seattle, but has also inaugurated a new phase in international economic relations, in which not economic integration and free trade as such are put into question, but the ability of the current regime to reconcile both the divergent (economic) interests of increasingly well-organised groups of states with each other, and the governments of these states with the people to which they owe their legitimacy. As a consequence, the fate of the WTO, the figurehead of the international free trade movement, may not be fundamentally in question, but it is, at least, again subject to debate.

In development, in turn, the relatively recent changes in its agenda may not have been as spectacularly visible as those in international trade, but they have nonetheless had a large impact on the way development is conceptualised and on the role it is to play in international politics. From UNDP’s new ‘human development approach’ inaugurated in 1990, and up to the UN’s Millennium Development Goals and the follow-up (and ongoing) Millennium Project, there has been a marked shift away from the neoliberal agenda, but also from the older, needs-based approaches to development, and towards individual agency with an emphasis on the building of capabilities and functionings, as theorised by Nobel laureate Amartya Sen. An informal ‘New York consensus’ on development has crystallized from these initiatives, consisting of five interrelated focal points, namely social development, economic growth, democratic governance, an equity-oriented, grass-roots approach, and an international institutional design aimed at maximizing world-market benefits for developing countries. As the recent Doha Declaration on trade and development, and the process, within the WTO ambit, it has initiated, shows, there is an increasing acknowledgement of the interlinkage of the two issues. Yet, the precise ways in which the partially contradictory means of trade and development respectively, to, admittedly, the similar end of human welfare are to be reconciled within a global development agenda is as yet an open question. Although the Millennium Development Goals have both revitalised the development debate and established development as one of the central and most pressing issues of the near future, their very ambitiousness also runs the risk of overburdening the capacity of the existing institutional and financial infrastructure, and of overestimating the willingness of political actors to commit themselves to an international economic order geared primarily towards human development.

One discourse, in particular, can be said at once to have stimulated the abovementioned changes in the paradigms of international trade and development, and to contain the key to possible ways out of the critical moment which both are experiencing, namely human rights. In international trade, human rights have so far played an ambiguous role, being used by some as potential means to tame the WTO, while being ‘co-opted’ into pro-free-trade discourse by others. The first group has used especially economic and social rights to critique aspects of economic globalization and the international regime enshrining it, pointing, inter alia, to the individual and collective disadvantages brought to specific groups, such as workers, women, indigenous peoples, the urban and rural poor, or developing countries as such, particularly those in Africa. The other group has, in turn, adopted human rights discourse as an integral aspect of what it sees as the desirable constitutionalization of the international trade regime, which would at once serve to protect fundamental human rights, and protect itself by granting new individual rights relating to ‘transnational economic transactions’. The former group sees human rights as a potential counterpoint to the international trade regime, the latter considers them part-and-parcel of that regime.

In development, the focus of the human development approach on individual and collective empowerment implies what has been termed a ‘rights-based approach’ to development, which has first been articulated in the 1986 UN Declaration on the Right to Development, and was reaffirmed in the 1993 Vienna, and the 2000 Millennium Declarations. It does not merely imply that human rights in general are inserted into the development agenda, but that the latter’s earlier focus on ‘objective’ (top-down) need is replaced by one on ‘subjective’ (bottom-up) entitlements. It places, thus, special emphasis on the explicit inclusion of a human rights framework –understood as universal and indivisible-, as well as on such core concepts as empowerment, accountability, participation, and non-discrimination. Human rights and human development are here seen as two sides of the same coin, with the ultimate objective of the rights-based approach being to enable people to live freely and in dignity, making their own choices towards self-defined ends. The UN has been at the forefront of the rights-based approach ever since Kofi Annan’s 1997 call for the UN to “mainstream human rights throughout its activities”. Development has been a key aspect of such mainstreaming, as is evidenced in such specific mechanisms as the HURIST (‘Human Rights in Development’) programme, operated jointly by the Office of the High Commissioner for Human Rights and UNDP in order to assist the integration of human rights and rights-based approaches into the latter’s activities. Yet, although the human rights turn of international development policy potentially represents a watershed, it is not without its inherent paradoxes. The main one concerns the State-centeredness of most rights based approaches: the State is often seen as at once the primary guarantor and the main violator of development rights. And, besides involving the state in partially contradictory roles vis-à-vis civil society and supranational organizations, it may also insufficiently take into account the increasing limitations which different globalization processes impose on the State’s ability to fulfil the responsibilities placed on it. Hence, while the rights-based approach to development may well be the only way forward, it is far from clear in what international-domestic legal and institutional setting it is best implemented.

At a time when both international trade and development are experiencing critical moments, human rights and rights-based approaches can play the potentially crucial role of an interface between the two agendas. That way, some of the problems encountered in each issue area might be addressed, and a more comprehensive approach to the goal of an equitable and just international socio-economic order might be found. Yet, many questions related to policy options, the appropriate institutional framework, and the division of labour between national and international actors, as well as between governments and civil society remain and need to be addressed in a systematic way.

Brazil is, particularly at the present moment, at the crossing point of many of the issues mentioned above. It is a leading political and economic power in the Southern Cone and, thus, in the middle of the force field between two (potentially) competing trade alliances, with the Mercosur-European Union cooperation on one hand, and the Free Trade Area of the Americas (FTAA), on the other. Moreover, its first centre-left government since the transition to democracy is facing the difficult task of balancing Brazil’s commitment to the central tenets of the Washington consensus, including its full participation in the world-trade regime, with the urgent need to foster domestic socio-economic development and decrease its extreme social inequality. In its approach to this enormous challenge, the government, critically accompanied by a highly developed domestic civil society, has shown itself adept and innovative in both issue areas. Compared with its share of world-trade, Brazil’s has been a disproportionately prolific user of the WTO dispute settlement mechanism, thereby promoting its specific interests within the global trade regime. It has also initiated a number of development programmes, such as FomeZero, or Bolsa Escola, which broadly follow a rights-based approach and aim at local empowerment. And it has sought to develop a Southern perspective on both trade and development in conjunction with other key actors, most notably India and South Africa – the informal IBSA alliance which has recently found expression in the trilateral Brasilia Declaration, and its highly influential civil society equivalent, the World Social Forum (WSF). Within this framework, Brazil has also been a leading proponent of a development-oriented interpretation of the WTO regime, as is implied in its international campaign –jointly with India and South Africa- for affordable AIDS drugs. Yet, the problems this, and any Brazilian government, and its civil society face in reconciling free trade and development within a human rights framework are still enormous, the many open questions mentioned above call for sustainable concrete answers in the Brazilian context.

Objectives

The proposed Workshop would aim to contribute to the systematic reflection on these questions by facilitating the discuss about the Brazilian context, Southern perspectives, and old and new possibilities of international articulation. The overall aim would be a coherent and systematic outlining of the issues involved and problems faced in bringing together trade, development, and human rights, with a particular, but not exclusive focus on a ‘Southern perspective’.