Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston 1. Why Does Alston Distort My Views Rather than Discuss Them? Since the beginning of my academic career as a lecturer in constitutional law at the universities of Hamburg and Heidelberg in the early 1970s, I have emphasized that the core of human rights consists of inalienable `birth rights' deriving from the inherent dignity and basic needs of every human being, as universally recognized today in numerous human rights treaties. Even where this `constitutional contract premise' is not recognized in national and international constitutional instruments (like the EC and WTO treaties), I have long been a supporter of interpreting national and international government obligations as serving `constitutional functions' for the protection of human rights. Contrary to Alston's claim, I have never argued for a `fundamentally different ideological underpinning'2 of national and international law. Again, contrary to Alston's claims, I have never argued for `a freestanding human right to trade'.3 The Anglo-Saxon preference for interpreting the human right to liberty as protecting only civil and political liberties, together with Alston's anti-market bias, seem to render it incomprehensible for him to extend constitutional liberty rights to economic and professional activities, including the movement of goods, services, persons and capital across frontiers, as is the case, for instance, in German and EU constitutional law.4 The everyday experience of billions of people who can survive only by trading the fruits of their labour in exchange for goods and services indispensable for their personal self-development should be recognized as a human rights problem rather than merely as a legislative or administrative task to be left to `benevolent governments'. Contrary to Alston's insinuations, a broader interpretation and constitutional protection of human liberty (e.g.,- in the sense of maximum equal individual freedoms across frontiers, as protected by Article 2:1 of the German Basic Law) has nothing to do with `prioritizing property and free trade over virtually all other values'.5 My publications emphasize, in conformity with the jurisprudence of European courts, that all human rights need to be mutually balanced through the implementing legislation and administrative protection; and that international courts must respect the margin of appreciation of democratic parliaments in this balancing process. My publications also stress that EC law (e.g. Article 30) and WTO law (e.g. Articles XX GATT, XIV GATS, 7, 8 TRIPS Agreement) rightly give priority to non-economic `human rights values'. This interpretation is not refuted by Alston's schoolmasterly reply that the Bretton Woods Agreements and WTO law do not explicitly refer to human rights. Nor does Alston elaborate the allegedly `extremely negative consequences'6 of my recommendation to follow the example of EU law and explicitly recognize the human rights obligations of all IMF and WTO Members as part of international integration law (e.g. by means of IMF and WTO declarations). Even though Alston quotes my calls for stronger legal protection of social human rights, he infers from my citations of Hayek and other defenders of liberty rights that I must be a supporter of the opposite belief that `human rights and market freedoms are, in effect, one and the same thing'.7 Alston fails to mention the effective protection of a `social market economy', for instance in German and EC constitutional law, nor does he refer to the vast European literature (including my own books) on why and how liberal and social values must be reconciled through social legislation. My books8 define the `human rights functions' of international economic law not only in terms of promoting the availability and accessibility of traded goods (like food and medicines), traded services (like health and education services) and open markets that are essential for the fulfilment of many social human rights (e.g., to food, health, education and development). They also suggest interpreting national and international guarantees of freedom, non-discrimination, rule of law and social justice (e.g., in the Bretton Woods and WTO agreements) in a mutually coherent manner as empowering citizens, obliging governments and reinforcing individual rights (e.g., to `negative' as well as `positive freedoms', non-discrimination and individual access to courts). It is not only the numerous `general exceptions' in EC and WTO law that can be construed as serving social human rights (e.g., to protection of human health against dangerous imports). The basic EC and WTO guarantees of liberty and non-discrimination should also be recognized, and in part are recognized (e.g. in the European Court of Justice (ECJ) jurisprudence on the `principle of equal pay for male and female workers for equal work' in Article 141 EC) as human rights protecting personal liberty and human dignity. In contrast to Alston's assertion, I have never argued `that the EU has attained any sort of ideal equilibrium'9 in protecting human rights. My argument is modest: EU integration law, including the ECHR, protects civil, political, economic and social human rights in a more balanced way than does UN law, notwithstanding the many weaknesses of EU law and its late explicit recognition of the ECHR (cf. Article 6 EU). Contrary to Alston's claims, I have never asserted `that the international community is committed to a global version of EU integration';10 nor that the EU is `an ideal model for the world as a whole';11 nor that the EU is `the persistently virtuous actor in international affairs.'12 My publications on EU international relations law are often quoted because of my criticism of the EU (e.g., its welfare-reducing WTO violations). Alston carelessly invents and imputes to me irresponsible views, such as that UN human rights arrangements should `be replaced by the WTO as the principal means by which to promote respect for human rights';13 that `the WTO would protect human rights more effectively than any other international institutional arrangement';14 that the WTO `reflects an ideal checks and balances approach';15 that `the WTO and the IMF are ... the most effective agents for the promotion of human rights';16 or that one should give `the principal responsibility for promoting, interpreting, and even implementing ... core UN human rights standards to the WTO'.17 I have expressed none of these views. My argument is that, just as EU protection of human rights has usefully complemented protection under the ECHR, so too consideration of the human rights obligations of WTO Members in interpreting WTO rules could reinforce UN human rights law and help create the resources needed for the enjoyment of human rights. A quick perusal of my books on GATT and WTO law could have enabled Alston to realize that I have long emphasized the limited scope of WTO law, the limited jurisdiction of WTO dispute settlement bodies, and the inadequate democratic `checks and balances' in the WTO. My EJIL contribution argues in favour of strengthening UN human rights law by integrating it into the law of worldwide organisations such as the WTO. Alston's presentation of me as someone who wishes to see `individuals ... become the objects rather than the holders of human rights'18 puts my human rights arguments on their head. Furthermore, empirical evidence (e.g., in the EC) contradicts Alston's claim that recognition of individual economic and social market rights makes `human rights ... detached from their foundations in human dignity'.19 Personal self-development in dignity depends on access to scarce resources and to a welfare-increasing division of labour as matters of individual rights and of individual responsibility, not only as a matter of government benevolence. 2 Alston, `Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann', 13 EJIL (2002) 815, at 842 [hereinafter `Alston']. 3 Ibid, at 817. 4 For more detailed explanations see Petersmann, supra note **, at 35-43. 5 Alston, at 841. 6 Ibid, at 815. 7 Ibid, at Section 3B. 8 Cf. e.g. E.-U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991). 9 Alston, at 823. 10 Ibid, at 831. 11 Ibid, at 832. 12 Ibid, at 833. 13 Ibid, at 833. 14 Ibid, at Section 3E. 15 Ibid, at 834. 16 Ibid, at 835. 17 Ibid, at 835. 18 Ibid, at 842. 19 Ibid, at 842.
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