The human rights to food and to adequate water in the light of International Trade Agreements

1

• The human rights to food and to adequate water in
  the light of International Trade Agreements
• Prof. Nerina Boschiero

2
Summary

• Section 1 Water and Food as fundamental human
  rights
• Section 2 Analysis of selected WTO Agreement
  and their challenges to the rights to adequate
  food and to water
• Section 3 How to best reconcile Human Rights and
  International Trade Law

3
Water and Food as Human Rights

• The six core human rights treaties
• The International Covenant on Civil and Political
  Rights, adopted in 1966 and which entered into
  force 23 March 1976
• The International Covenant on Economic, Social
  and Cultural Rights, adopted in 1966, entered
  into force 3 January 1976
• The International Convention on the Elimination
  of All Forms of Racial Discrimination, adopted in
  1965, entered into force 4 January 4 1969
• The Convention on the Elimination of All Forms of
  Discrimination Against Women, adopted in 1979,
  entered into force 3 September 1981
• The Convention Against Torture and Other Cruel,
  Inhuman or Degrading Treatment or Punishment,
  adopted in 1984, entered into force 26 June 1987
• The Convention on the Rights of the Child,
  adopted in 1989, entered into force 2 September
  1990

4
State Obligations

• To RespectStates are obliged to ensure that
  human rights are fully respected in the context
  of state policies, laws and actions. This
  obligation requires states to ensure that none of
  its ministries or public servants violate or
  impede enjoyment of human rights by their
  policies or actions. To ProtectStates are
  obliged to ensure that enjoyment, by everyone
  without discrimination, of all their human rights
  is protected from abuse by third parties ie
  from the actions of individuals and groups at all
  levels of society, including corporations,
  institutions and public and private bodies. This
  protection should be through the introduction of
  laws to protect human rights, and the provision
  of affordable and accessible redress procedures
  in the event of abuse of the rights.To Fulfil
  States are obliged to take the necessary steps
  to ensure the realisation of human rights in
  practice through the adoption of legislative and
  other measures, such as the provision of
  education and other public services and policies
  designed to ensure access for everyone to basic
  needs. The obligation to fulfil includes the
  obligations to facilitate, promote and provide.
  In the context of economic, social and cultural
  rights, States are obliged to take all measures
  to achieve the progressive realisation of the
  rights.

5
How ?

• Progressive realisation of economic, social and
  cultural rights
• Principle of non-regression
• Margin of discretion
• Indivisibility-interdependency-interrelationship
  of Human Rights

6
The right to water

• The Convention on the Elimination of
  Discrimination Against Women (1979)
• Art. 14 (2) State Parties shall take all
  appropriate measures to eliminate discrimination
  against women in rural areas in order to ensure,
  on a basis of equality of men and women, that
  they participate in and benefit from rural
  development and, in particular, shall ensure to
  women the right (h) To enjoy adequate living
  conditions, particularly in relation to housing,
  sanitation, electricity and water supply,
  transport and communication.

7

• The Convention on the Rights of the Child
  (1989)
• Article 24 (1) States Parties recognize the right
  of the child to the enjoyment of the highest
  attainable standard of health and to facilities
  for the treatment of illness and rehabilitation
  of health
• (2) State Parties shall pursue full
  implementation of this right and, in particular,
  shall take appropriate measures (c) to combat
  disease and malnutrition, including within the
  framework of primary health care, through, inter
  alia, the application of readily available
  technology and through the provision of adequate
  nutritious foods and clean drinking water, taking
  into consideration the dangers and risks of
  environmental pollution

8

• States Parties to the International Covenant on
  Economic, Social and Cultural Rights, 1966,
  recognise by Article 11
• the right of everyone to an adequate standard of
  living for himself and his family, including
  adequate food, clothing and housing and to the
  continuous improvement of living conditions
  emphasis added.

9

• South African Constitution (1996)Chapter 2, Bill
  of Rights
• Section 271. Everyone has the right to have
  access to (a) health care services, including
  reproductive health care (b) sufficient food and
  water and (c) social security, including, if
  they are unable to support themselves and their
  dependants, appropriate social assistance 2. The
  state must take reasonable legislative and other
  measures, within its available resources, to
  achieve the progressive realization of each of
  these rights
• Constitution of Gambia (1996)
• Article 216(4) The State shall endeavour to
  facilitate equal access to clean and safe water.
• Constitution of Ethiopia (1998)
• Article 90(1) Every Ethiopian is entitled,
  within the limits of the countrys resources, to
  clean water.
• Constitution of Uganda (1995)
• Article 14 The State shall endeavor to fulfill
  the fundamental rights of all Ugandans to social
  justice and economic development and shall, in
  particular, ensure that all Ugandans enjoy
  rights and opportunities and access to education,
  health services, clean and safe water, decent
  shelter, adequate clothing, food, security and
  pension and retirements benefits.
• Constitution of Zambia (1996)
• Article 112 The State shall endeavour to
  provide clean and safe water.

10
The content of the right to water

• Water is a limited resource and a public good
  fundamental for life and health. The human right
  to water is indispensable for leading a life in
  human dignity. It is a prerequisite for the
  realization of other human rights. (GC N0. 15
  (2002)).
• The Human Right to Water entitles everyone to
  sufficient, safe, acceptable, physically
  accessible and affordable water for personal and
  domestic uses.

11
Obligations on State Parties

• Respect Governments must refrain from unfairly
  interfering with peoples access to water, for
  example, by disconnecting their water supply.
• Protect Governments must protect peoples access
  to water from interference by others, for
  example, by preventing pollution.
• Fulfil Governments must adopt the necessary
  measures directed towards full realisation of the
  right, for example, by passing legislation,
  devising and implementing programmes, allocating
  budgets and monitoring their progress.

12
The progressive realisation of the right to water

• some core obligations to be undertaken
  immediately
• To ensure access to the minimum essential
  amount of water, that is sufficient and safe for
  personal and domestic uses to prevent disease
• To ensure the right of access to water and
  water facilities and services on a
  non-discriminatory
• basis, especially for disadvantaged or
  marginalised groups
• To ensure physical access to water facilities
  or services that provide sufficient, safe and
  regular water that have a sufficient number of
  water outlets to avoid prohibitive waiting times
  and that are at a reasonable distance from the
  household
• To ensure personal security is not threatened
  when having to physically access water
• To ensure equitable distribution of all
  available water facilities and services

13
The right to sanitation

• The CESCRs General Comment No.15 states that
  State parties have an obligation to
  progressively extend safe sanitation services,
  particularly to rural and deprived urban areas,
  taking into account the needs of women and
  children.
• The human right to sanitation requires that
  States ensure to each person, access to safe,
  accessible, acceptable and affordable sanitation
  facilities in or near to their homes and public
  institutions (including educational institutions,
  hospitals and places of work).

14
Some statistics

• 1.1 billion people lack access to an adequate
  supply of water
• 2.6 billion people lack access to adequate
  sanitation
• 1.8 million children die every day as a result
  of diseases caused by unclean water and poor
  sanitation

15
Who is most affected by lack access to water?

• Whereas the right to water applies to everyone,
  States Parties should give special attention to
• those individuals and groups who have
  traditionally faced difficulties in exercising
  this right, including women, children, minority
  groups, indigenous peoples, refugees, asylum
  seekers, internally displaced persons, migrant
  workers, prisoners and detainees General
  comment No.15

16
Governments obligations

• Governments must take the steps necessary to
  ensure that everyone can enjoy sufficient, safe,
  acceptable, accessible and affordable water,
  without discrimination.
• This duty of governments to take steps can be
  divided into the obligations to respect, protect
  and fulfil.

17
Duty to respect maintaining existing access

• The duty to respect requires a government to
  ensure the activities of its institutions,
  agencies and representatives do not interfere
  with a persons access to water. A government
  institution for example may pollute a river
  required for drinking-water supply a local
  authority may unfairly disconnect the water
  supply of residents a law may prevent access by
  a group to a traditional water source or piped
  water.
• A closely related responsibility is the duty of
  non-retrogression

18
Duty to protect regulating third parties

• The duty to protect requires that governments
  should diligently take all the necessary feasible
  steps to prevent others from interfering with the
  right to water. This will usually require a
  strong regulatory regime that is consistent with
  other human rights.
• The problem of privatisation of water services

19
Duty to fulfil going forward

• The duty to fulfil requires that Governments take
  active steps to ensure that everyone can enjoy
  the right to water as soon as possible. This
  encompasses the obligations to facilitate,
  promote and provide.
• Steps to be taken
• ? legislative implementation
• ? adopting a national water strategy and plan of
  action to realize this right
• ? ensuring that water is affordable for everyone
• ? facilitating improved and sustainable access to
  water, particularly in rural and deprived urban
  areas.

20
Duty to fulfil going forward

• The duty to fulfil requires that Governments take
  active steps to ensure that everyone can enjoy
  the right to water as soon as possible. This
  encompasses the obligations to facilitate,
  promote and provide.
• Steps to be taken
• ? legislative implementation
• ? adopting a national water strategy and plan of
  action to realize this right
• ? ensuring that water is affordable for everyone
• ? facilitating improved and sustainable access to
  water, particularly in rural and deprived urban
  areas.

21
Water for food (right to adequate food)

• Water is essential for numerous activities that
  sustain human life and ensure human dignity,
  including ensuring sustainable access to water
  resources for agriculture to realise the right to
  adequate food.
• Globally, some 70 of all water resource use is
  for agriculture, and the bulk of global food
  production depends on a range of agricultural
  systems in which water is the critical factor.

22
Right to adequate food

• The right to food has been part of the
  international human rights regime since its
  inception. The right first found expression in
  Article 25 of the UDHR, which states that
  everyone has the right to a standard of living
  adequate for the health and well-being of himself
  and of his family, including food . . .
• The right was subsequently codified by Article 11
  of the ICESCR, which encompasses two separate but
  related norms the right to adequate food and the
  right to be free from hunger.
• The right to adequate food (Article 11(1)) is a
  relative standard. In contrast, the right to be
  free from hunger (Article 11(2)) is absolute
  and is the only right to be qualified as
  fundamental in both the ICCPR and the ICESCR.

23
The normative content of the right to adequate
food

• the right to adequate food is realized when
  every man, woman and child, alone or in community
  with others, has physical and economic access at
  all times to adequate food or means for its
  procurement
• The realization of the right to adequate food
  requires
• the availability of food in a quantity and
  quality sufficient to satisfy the dietary needs
  of individuals, free from adverse substances, and
  acceptable within a given culture
• the accessibility of adequate food, including
  both economic accessibility (personal or
  household financial costs associated with the
  acquisition of food for an adequate diet should
  be at a level such that the attainment and
  satisfaction of other basic needs are not
  threatened or compromised) and physical
  accessibility (i.e. physical access to food,
  including for vulnerable groups, such as
  children, elderly people, physically disabled,
  etc.)

24
States Obligations

• The right to adequate food, like any other human
  right, imposes three types or levels of
  obligations on States parties the obligations to
  respect, to protect and to fulfil.
• The obligation to respect existing access to
  adequate food requires States parties not to take
  any measures that result in preventing such
  access.
• The obligation to protect requires measures by
  the State to ensure that enterprises or
  individuals do not deprive individuals of their
  access to adequate food.
• The obligation to fulfil (facilitate) means the
  State must pro-actively engage in activities
  intended to strengthen peoples access to and
  utilization of resources and means to ensure
  their livelihood, including food security.
  Finally, whenever an individual or group is
  unable, for reasons beyond their control, to
  enjoy the right to adequate food by the means at
  their disposal, States have the obligation to
  fulfil (provide) that right directly.

25
Norms on international food aid

• A State claiming that it is unable to carry out
  its obligation for reasons beyond its control
  ... has the burden of proving that ... it has
  unsuccessfully sought to obtain international
  support to ensure the availability and
  accessibility of the necessary food
• International Instruments
• Food Aid Convention
• WTO Decision on Measures Concerning the Possible
  Negative Effects of the Reform Programme on
  Least-Developed and Net Food-Importing Developing
  Countries,

26
Common provisions to the human rights to food and
to water

• States International Obligations
• The obligation to respect, to protect and to
  fulfil) are not confined to the national arena,
  but are also related to States' activities and
  responsibilities within the international
  community.
• Governments are requested to repeal or suspend
  legislation or policies which are "manifestly
  incompatible with pre-existing legal obligations
  relating to the right to food" and requires that
  each State "take into account its international
  legal obligations regarding the right to food
  when entering into agreement with other States or
  with international organizations".
• Agreements concerning trade liberalization should
  not curtail or inhibit a countrys capacity to
  ensure the full realization of the right to water
  

27
Actions in other territories

• The international cooperation demands that the
  States abstain from any measure that prevents,
  directly or indirectly, the exercise of these
  rights in other countries. The activities
  undertaken within the jurisdiction of a State
  Party should not prevail over the ability of
  another State to ensure that those in their
  jurisdiction can exercise their rights.
• The States Parties must adopt measures to prevent
  their own citizens and companies from violating
  the economic and social rights of the people and
  communities of other countries.

28
Accountability mechanisms / Justiciability

• Both the General Comment on the right to water
  and to food emphasise the importance of legal
  redress to ensure government accountability.
  Moreover, both emphasise that remedies must be
  "accessible, affordable, timely and effective".
  Failure to provide judicial recourse for
  violations of economic, social and cultural
  rights would disadvantage the most vulnerable
  groups of society and therefore be
  discriminatory, neglecting the rights of the
  most vulnerable and disadvantaged groups in
  society.
• Justiciability means the possibility that a human
  right, which is recognized in general terms, to
  be invoked before judicial and semi-judicial
  organisms that can determine whether the right
  has or has not been violated and can decide about
  the measures to be taken. A right is only
  justiciable if it is not only recognized as such
  but if there are procedural mechanisms which
  allow victims of violations access to judicial
  review.

29
Complaints mechanisms within the UN human
rights system

• Four of the six core UN human rights treaties
  currently have complaints procedures
• The International Covenant on Civil and Political
  Rights
• The Convention against Torture and Other Cruel,
  Inhuman or Degrading Treatment or Punishment
• The International Convention on the Elimination
  of All Forms of Racial Discrimination
• The Convention on the Elimination of All Forms of
  Discrimination against Women

30
Monitoring of compliance with State obligations
by treaty bodies

• In the United Nations system, there are two types
  of organs monitoring the implementation of human
  rights law the Charter-based organs, established
  under the UN Charter, and the treaty-based
  organs, established under other international
  treaties.
• The most important Charter-based body is the
  Commission on Human Rights
• As for treaty-based bodies, committees to monitor
  the implementation of human rights treaties were
  established by the CERD, the ICCPR, the CEDAW,
  the CAT and the CRC. All these committees receive
  reports from the States parties to the relevant
  treaty. These committees consider the right to
  water and to food when examining the reports of
  States Parties to their respective Covenants.

31
WTO Agreements Current Challenges tothe rights
to food and water

• The relationship between international trade law
  and human rights according two school of
  thoughts
• The liberal-constitutional approach (mutually
  reinforcing)
• The rights-based approach (potentially
  conflicting)
• 3) Third solution these two approaches could
  reinforce each others

32
The economic-liberal approach

• The economics approach has traditionally been
  premised on neo-classical economic philosophy,
  which stresses the importance of removing
  Government distortions to the market.
• It emphasizes limitations on Government spending,
  the privatization of state-owned enterprises, the
  removal of barriers to trade, and government
  interference in financial and capital markets
• It assumes that the right to health, the right to
  food and shelter and, indeed, the right to water
  are best protected and guaranteed through the
  full adherence to international economic law,
  because food and shelter, health and water supply
  are efficiently and effectively provided through
  market processes in liberalised economies.

33
The rights-base approach

• This approach admits the possibility of a
  potential conflicts between the two branches of
  international law
• when the WTO mandates or prohibits an action
  that a human rights treaty conversely prohibits
  or mandates.
• such situations would be rare. In fact, one would
  have to be able to demonstrate that compliance
  with the WTO necessitates violation of a human
  rights treaty.
• Human rights obligations concern the aims and not
  the means

34

• Most fundamentally, a free market approach
  emphasizes non-interference by the State, while
  International human rights law is founded on the
  notion that States must intervene to respect,
  protect, and fulfil the right to food and to
  water
• Nowadays, as consequence of the recent global
  crises, also economic thought acknowledges the
  importance of Government intervention to address
  market failures!!!!!!!!!

35

• Still differences remains
• 1) The economics approach tends to emphasize the
  total average growth, such as a rise in gross
  domestic product or per capita income. A focus on
  averages may not reveal that economic growth is
  rarely uniformly distributed across a country. A
  rights-based approach is premised on the notion
  that each and every individual can lay claim to
  basic rights and basic services.

36

• 2) An economic approach may also fail to
  highlight the role of discrimination against
  particular ethnic, religious, racial, or caste
  groups as a reason for their economic exclusion.
  A rights-based approach oblige governments to
  ensure the fulfilment of socio-economic rights
  without discrimination.

37

• 3) An economic approach also tolerates negative
  short-term consequences in return for long-term
  progress.
• In the interim the poorest of the poor may not
  be able to afford food or agricultural inputs
  offered at market rates and may suffer
  disproportionately from restrictions in
  government spending on food and welfare programs.
  
• A rights-based approach does not tolerate such
  trade-offs it calls on governments to subsidize
  agricultural inputs or provide food when people
  cannot afford to feed themselves.

38
The WTO Agreement on Agriculture (AoA)

• The AoA is structured around three pillars
• market access (aim to reduce border obstacles to
  trade such as taxes and duties, commonly known as
  tariffs
• domestic support (aim to reduce subsidies that
  distort farmers decisions about what and how
  much they will produce. domestic supports are
  divided into three categories, set out in three
  so-called boxes, each of which is subject to
  different WTO requirements
• export subsidies (the AoA lists export subsidies
  that WTO Members have to reduce, and bans the
  introduction of new subsidies)

39
People-centred provisions

• AoA contains provisions that could protect
  particular countries or group of people within
  countries from the harmful effects of
  liberalization.
• These include Non-Trade Concerns, Special and
  Differential Treatment, the Special Safeguard
  (SSG), and the Marrakesh Decision on Net-Food
  Importing Developing Countries.

40
AoAs failures from a human right perspective

• its export-oriented approach puts the emphasis on
  expanding production and exports rather than
  improving the livelihoods of those involved in
  agricultural production
• It fails to tackle the market power of
  transnational commodity producers and traders
• It has inadequate rules to prevent dumping
• It has locked developing countries into an
  unlevel playing field

41
Current negotiations

• Developing countries committed themselves to a
  fairer trading system, asking to insert in AoA
  provisions for
• - Special and Differential Treatment,
• Special Safeguard Mechanisms,
• a Special Product" category and
• the suspension of tariff reduction requirements
  for all least developed countries.

42
GATS-General Agreement on Trade in Services

• From a trade perspective, water itself is usually
  considered a good. Hence the export of water
  would be regarded as trade in goods (GATT 94)
• However, currently many policy choices in the
  water sector involve certain forms of a water
  service, including the provision of water.
• Water services can be categorised in four broad
  categories
• 1) Water collection and purification services,
• 2) Water distribution,
• 3) Wastewater treatment (sewage),
• 4) Services incidental to water services
  (installing and reading meters, building and
  maintaining distribution networks or management
  services).
• To date, only sewage services have been
  classified under the general heading of
  environmental services.

43
The sectoral scope of GATS

• GATS applies to all sectors of the service
  economy with the exception of air transport
  rights and services supplied in the exercise of
  governmental authority.
• A service supplied in the exercise of
  governmental authority is defined in Article
  I3(c) GATS as a service which is neither
  supplied on a commercial basis nor in competition
  with one or more service suppliers.

44
GATS Rules

• GATS contains two groups of disciplines and
  obligations
• The first group (general obligations). applies
  to all measures affecting trade in services it
  includes the most-favoured-nation principle, i.
  e. the obligation to not discriminate between
  services and service suppliers if they come from
  different foreign countries.
• 2) The second group of disciplines applies only
  if governments specifically committed themselves
  to these disciplines (specific commitments) in
  the course of trade negotiations. Specific
  commitments include market access and national
  treatment.

45

• Market access From a strictly legal perspective,
  GATS does not require privatisation of public
  services Liberalization does not explicitly
  require privatisation of any particular service
  sector. In practice, however, allowing
  competition in a service sector implies the
  elimination of a monopoly, including public
  monopolies. This process is frequently tantamount
  to privatization. And GATS does contain a dynamic
  towards the abolishment of public monopolies.
• The so called lock-in effect.
• Disciplines on domestic rules WTO rules on
  services might reduce countries flexibility to
  regulate in the public interests.

46
TRIPS

• General provisions 1) the national-treatment
  commitment under which the nationals of other
  parties must be given treatment no less
  favourable than that accorded to a partys own
  nationals with regard to the protection of
  intellectual property. 2) the most-favoured-nation
  clause, a novelty in an international
  intellectual property agreement, under which any
  advantage a party gives to the nationals of
  another country must be extended immediately and
  unconditionally to the nationals of all other
  parties, even if such treatment is more
  favourable than that which it gives to its own
  nationals.

47
Trips art. 27. 3 b)

• Members shall provide for the protection of plant
  varieties either by patents or by an effective
  sui generis system or by any combination thereof.
  
• The two most common types of IP protection for
  plants or plant parts are plant breeders rights
  (also known as plant variety protection or PVP)
  and patents.
• But TRIPS also allows countries to have sui
  generis systems for protecting plants and such
  systems can be far better than patents or PVP.
• A sui generis system is in fact a system designed
  to suit the needs of a particular subject matter
  or a particular country

48
Plant breeders rights (PBRs)

• These rights are set out in the UPOV Conventions
  revised three times, most recently in 1991, each
  time strengthening the standard of protection.
• The UPOV Act of 1991 grants breeders at least 20
  years of near monopoly control over novel,
  distinct, uniform and stable plant varieties.
• All States which started the procedure to join
  UPOV after 1999 are obliged to become Parties to
  the 1991 Act two-thirds of UPOV Members.

49

• Since PBRs are only given for varieties that are
  genetically uniform and stable, the UPOV system
  promotes commercially-bred varieties geared for
  industrial agriculture, rather than recognizing
  incremental innovation or encouraging the
  diversity that exists in smaller-scale
  agriculture that prevails in developing
  countries.
• b) The UPOV system is gradually becoming less
  farmer-friendly b1) contrary to previous Acts,
  UPOV 1991 prohibits farmers from exchanging
  PBR-protected seeds they have harvested. Farmers
  may save and re-sow PBR protected seeds on their
  own land, but only if their government has
  enacted an optional exception to the 1991 Act
  b2) UPOV 1991 permits breeders to have both a
  plant breeders right and a patent on their
  varieties (with the consequence that the genetic
  material covered by a patent cannot be used by
  others wanting to develop new varieties).

50
Patents

• The agreement requires that 20-year patent
  protection be available for all inventions,
  whether of products or processes, in almost all
  fields of technology. Inventions may be excluded
  from patentability if their commercial
  exploitation is prohibited for reasons of public
  order or morality otherwise, the permitted
  exclusions are for diagnostic, therapeutic and
  surgical methods, and for plants and (other than
  microorganisms) animals and essentially
  biological processes for the production of plants
  or animals (other than microbiological
  processes).
• In plants, patents processes (including seeds,
  plant cells or isolated DNA sequences may apply
  to a number of biological materials and), that
  ultimately give the right-holder control over the
  seed.
• IPRs on seeds are said to contribute to loss of
  genetic and cultural diversity and to increased
  corporate concentration, which could result in
  environmental degradation and undermine long-term
  sustainability of food supplies.

51

• Farmers cultivating patented seeds do not have
  any rights over the seeds they plant they are
  merely licensees of a patented product. When
  buying patented seeds, farmers are often obliged
  to sign contracts agreeing not to save, re-sow or
  exchange the seeds.
• Patents are only granted to plants or plant parts
  that involve an inventive step, raising the
  question of exclusive rights to those who took
  only the most recent step in developing the
  variety
• Can nature be owned? The very concept of
  ownership of life forms is antithetical to many
  peoples religious or moral views. UPOV and
  TRIPS, as well as the national IP systems that
  they favour, also fail to acknowledge traditional
  beliefs about knowledge or nature. Many
  indigenous groups do not have a concept of
  ownership of knowledge. To the extent that such
  ownership exists, it is often collective and
  for the benefit of the community.

52
IPRs affect the sustainability of food production
in different critical ways

• Through restricting flows of genetic material
• Through encouraging monocultures
• 3) Through accelerating contamination of the
  environment
• 4) By opening the way to biopiracy.

53
A progressive approach to trade law and human
rights

• It has described and analysed in 2002 Report of
  the United Nations High Commissioner for Human
  Rights on Liberalization of trade in services
  and human rights (UNHCHR 2002). According to the
  approach suggested by the High Commissioner the
  promotion and protection of human rights are to
  be understood as objectives of trade
  liberalization, not as exceptions

54

• Necessity not to focus only on the traditional
  function of human rights as rights against State
  intervention (a negative concept of human
  rights) but also to consider the positive
  status of human rights which requires State
  activities and effective national policies in
  order to progressive realize these social and
  economic rights.
• These policies differ from country to country
  consequently the realisation of human rights
  requires regulatory space and flexibility to
  tailor domestic regulatory policies to the needs
  and particularities of the country, society and
  the human rights in question.
• International trade agreements should not impinge
  governmental discretion and regulatory
  flexibility in areas where such discretion and
  flexibility is needed to realise human rights.

55
A rights-based approach to development

• A rights-based approach to development is a
  conceptual framework for the process of human
  development that is normatively based on
  international human rights standards and
  operationally directed towards promoting and
  protecting human rights.
• It is premised upon the principles of equality
  and equity, accountability, empowerment and
  participation, non-discrimination and attention
  to vulnerable groups.

56
As to the right to water

• In the light of the current Doha trade
  negotiations, a human rights approach would
  suggest to refrain from further expanding WTO
  rules. In order to avoid potential future
  tensions with the progressive realisation of
  basic human rights such as the right to water,
  WTO members should proceed with extreme caution
  concerning water services liberalization in order
  to retain the necessary regulatory flexibility to
  adopt policies devoted to water conservation, to
  ensure water quality and to provide enough safe
  and clean water to each citizen and human being
  under States jurisdiction, including the poor
  and the marginalized.

57
As to the right to adequate food

• The main impact of the current trade
  multilateral regime on the right to food include
• an increased reliance and dependency on
  international trade
• a reinforcement of the role of transnational
  corporate actors
• an encouragement of long supply chains

58

• Not necessarely the compatibility between trade
  and human law is best assured at level of
  national policies.
• the global power exerted by handful of States,
  transnational corporations, and International
  Financial Institutions represents a significant
  shift in the international order. The power
  imbalances created by this shift make it
  increasingly difficult for weaker States to
  assert full control over policies that are
  central to their ability to fulfil their social
  and economic rights obligations.
• Therefore, consistency must be better ensured in
  the preparation of the trade agreement themselves
  and taken into consideration at the negotiation
  stage. Later maybe too late.

59
Procedural proposals

• Assessing the impact of trade agreements on the
  right to food.
• Considering international trade as a component of
  national strategies for the realization of the
  right to food

60
Substantive proposals

• Limiting the dependency on international trade
• Maintaining the existing flexibilities
• Controlling the market power in the global supply
  chain
• Ensuring a socially and environmentally
  sustainable trade

61
Stop treating food and water only as economic
goods!!!!!!

• It is outmost important to recognize the
  specificity of these goods (water and
  agricultural products) rather than to treat them
  as any other commodities.
• Treating water and food as purely economic goods
  implies that their various functions are
  considered as interchangeable values that can,
  therefore, be measured in monetary terms.
  However, the values linked to water and food
  cannot simply be replaced by money.

62
Conclusion

• The best way to ensure that trade rules promote
  human rights is
• a) to broaden the focus of humans rights lens
  from the multilateral trade negotiations within
  the WTO
• b) to integrate the human rights concerns of
  non-discrimination, monitoring, democratic
  participation and accountability at each step of
  the process of making and applying trade
  policies.