WTOs Restraint - Fails to Help Improve Chinas Human Rights Status - Research Paper Example

20 April WTO's restraint-- fails to help improve China's human rights status through international trade regulation? Introduction At the time of joining WTO, Chinese leaders made many promises like lifting of trade barriers and to open up their markets to other WTOs member nations. Chinese administration pledged to increase transparency, to safeguard the WTO member nation’s intellectual property rights in China and to reorganise their legal setup. Many supporters for China’s WTO membership buttressed that China’s WTO membership would bring freedom and human rights and the rule of law into China but some others vehemently raised serious doubts about China’s WTO membership would bring such outcomes. (Ching 3). Whether China’s accession to WTO has come at a cost to the trustworthiness of WTO itself? Is China is butchering the WTO? Given the China’s poor governance and state capitalism, the effect of China’s failure to adhere with WTO regulations is composited by the WTO’s relative incapability to deal efficiently with a commercialised state focussed economy such as China’s. The WTO regime presumes rule of law and transparency which in China’s case, it is obviously absent. This research essay will mainly focus how WTOs restraints have failed to improve China's human rights status through international trade regulation and the various means and ways to make China to respect human rights obligations under International law. China, WTO and Human Rights Obligations Being a communist nation, China is still building a rule-of-law system, and its residents are now having started to repose confidence on its court system and its law enforcement agencies. However, China is still far away from fulfilling the objectives of the International Covenant on Economic, social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Nonetheless, much progress has been accomplished in the human rights area in the last three decades in China, and definitely a certain momentum has been kicked off. (Hillebrand 3). Despite of accession to WTO and ratification of ICESCR , some common varieties of abuses are found in China even today like customary hukou residential system , labour violations of Chinese migrant construction workers , Women’s rights violations , practices of child labour and discrimination against disabled persons. The UN Committee on CESCR gave a final observation on China in 2005 expressing concerns over human rights infringements in China. It is observed that there exists human rights infringement in the People’s Republic of China (PRC) which remains widespread and systematic. It is alleged that the Chinese government prolongs to restrain dissenting beliefs and upholds political control over the Chinese legal setup. The human rights abuses of the Chinese government officials often go unchecked due to the lack of accountability of the Chinese Communist Party and the Chinese government. (Julie 16). As of date, China has signed about 25 international human rights instruments, which include six core human rights conventions. As of June 2009, China is yet to sign or ratify the International Convention on the Rights of All Migrant Workers and Members of their families. (Arnold 152). ICESCR was ratified by the China in 2001, and thereby China promised to guarantee the right to work and also make sure there exists good working environment. The UN committee of ICESCR in its concluding remarks mentioned that China must make available resources so that there could be independent and regular examination of health and safety conditions and sanctions against employers who do not adhere to safety norms. (Julie 23). The major portion of international law emanates from multilateral or bilateral treaties entered between states enveloping a vast variety of varied fields. There is an absence of centralised court system implementing international law and to the conflicting each treaty can offer for its own enforcement system. Both WTO and ICESCR agreements are the best example of this disjointed system. ICESCR is a treaty with about 160 Member States, which foots upon its enforcement on a system of shaming and naming infringers. Whereas WTO is an international organisation which has its origin in the GATT (General Agreement on Tariffs and Trade) and with 153 member nations as of January 2012, which brags a highly successful and striving dispute resolution mechanism for Member States with legal proceedings, which can finally allow trade retaliation for infringement of WTO agreements. (Baek 16). According to Hans Morten Hauge, human rights violations are not explicitly handled by WTO agreements and likewise, ICESCR does not explicitly refer to international trade law. Thus, the two organizations thus appear to exist separately without any connection between them and the experts of one organisation rarely became the expert of the other. Ruti Teitel and Robert Howse found that WTO rules have a direct impact on the rights to work, food and health and hence, there is a direct connection to human rights aspects. (Lankford 51). After joining the WTO in 2000, China has witnessed marvellous economic growth, and it is well assimilated into the international economy. However, the US “congressional-executive commission on China in its 2011” report observed that China prolongs to infringe the fundamental human rights of its own citizens and methodologically destabilises the rule of law. Political activists and lawyers are being arrested and tortured due to their involvement in demanding to restore individual rights. For peacefully demonstrating for political reform, Liu Xiaobo, who is a Nobel Laureate, is now serving an 11-year imprisonment. Websites and internet service providers like Google that do not follow to the government line are being closed down. Due to this human right infringement, there arises a question whether China’s WTO ascension would pave to the rule of law regime? Whether China transforms the WTO or the WTO would transform the China. (Congressional-executive commission on china 1). China’s WTO accession resulted in massive transfer of wealth and jobs to China from other WTO member nations as they are importing heavily from China. Now, the majority of China’s trading partners are having a trade deficit with China. For instance, USA’s trade deficit was in favour of China as it has tripled over the last decade and in the year 2010, it stood at a mammoth figure of $ 273 billion. Nearly, one decade has passed after China’s accession to WTO, but it is alleged China is not living up to its expectations or promises. Chinese people are now burdened with restricted rights to fundamental freedoms of religion, speech and assembly in public places. Chinese brutal foreign policy in Tibet which have triggered to a recent gesticulate of self-immolations , and after the Arab spring , Chinese violent crackdown on human rights lawyers has demonstrated that the dictatorship attitude of Chinese Communist Party, which is still in the practice of exerting tight grip over the Chinese people. (“Congressional-executive commission on China 2”). It is alleged by critics that WTO not only did not bring democracy and freedom to China, but it has not also brought any fair-trade system also. Instead, it is alleged that China has contravened the WTO rules. Though, China seems to adhere to some WTO rules, on the whole, the list of WTO infringement is a long list like huge incentives to China’s exports, widespread intellectual property abuses, and concealment of rare earths. Further, China has turned down to commit to the WTOs norm on government purchases. These infringements by Chinese administration demonstrate the Chinese government disrespect for the rule of law, but these non-adherences had cost other WTO member nations like loss of jobs and had delayed their economic recovery.(“Congressional-executive commission on China 3”). For instance, China’s Intellectual property violations itself had cost about $ 50 billion to US businesses and if Chinese administration better compliances of WTO rules would create about 1 million new jobs in USA. Chinese administration worst infringement impact companies all over the world to compete against a nation that manoeuvres its currency frequently and subsidises its exporters. (“Congressional-executive commission on China 3”). Chinese administration currency manipulation is considered to be the most harmful unfair trade practice which is against the WTO rules. To boost its exports, the Chinese administration is deliberately holding down the value of its currency. To the detriment of other WTO members, China has established the largest trade surplus in the annals of the world history. According to the critics, the currency manipulation exercised by the Chinese administration offers an unjust incentive to Chinese exporters up to 40%. According to Fred Bergsten, China practices the most vulnerable protectionist economic policy of any major nation since the World War II. Despite of assurance given by Chinese administration, the overall picture of China’s action to carry out its WTO obligations remain intricate, as there has been widespread intervention of state in the Chinese economy in the last five years. (“Congressional-executive commission on China 3”). Since WTO is a dispute-resolution mechanism, China’s infringement of WTO regulations can be referred to its dispute settlement mechanism. For instance, between 2008 and 2011, USA has referred five disputes against China to the WTOs dispute settlement mechanism, and they include abuse of trade remedy law, implementation of discriminatory restraints in the service sector and the trade- distortive export impediments. (“Congressional-executive commission on China 3”). “International Human Rights Laws “ As of now, the cannons of human rights have received wide recognition and now, the basic human rights are unchallengeable and legally implementable. The concept of sovereignty also expanded, and one of the main objectives is to safeguard the citizens’ basic rights from the intimidation of the state and misuse of the authority by the relevant government. The development of international human rights law is one of the striking features in the modern international law. If there is gross human rights abuse or infringement of human rights, it is the state’s responsibility to safeguard the well-being of its own citizens. Thus, governments are now barred to carryout genocide or violence against its own citizens. If there is gross human rights infringement, particularly those created by the position of commitments Erga Omnes or Jus Cogens, which are not resolved by a state itself, it is no longer the concern of the respective state. Thus, now, basic human rights have developed a position of universality, and the international communities have already acknowledged the same. (Trebilcock & Howse 580). Economic Sanctions According to Preeg (1999), economic sanctions are not an efficient mechanism of foreign policy. Sanctioned or target countries have never changed their attitude or their policies to adhere with the wishes of the sanctioning nation. Various empirical studies have found that applying unilateral economic sanctions have not yielded desired results despite coercion, the target nation never changed their approach. (Askari 1). According to Cortright and Lopez (2000), an analysis of economic sanctions imposed by United Nations (U.N) corroborates the tendency toward heightened usage of economic sanctions of late. Ever since its incorportion in 1946, the U.N up to 1990, imposed economic sanctions only in two occasions. While, since 1990, the U.N has used economic sanction thirteen times. (Askari 2). “Hufbauer et al. (1999) “ analysed the database of 165 earlier economic sanctions and found that only 35% of economic sanctions were produced desired effects. Contradicting the finding of Hufbauer, Pape (1997) was of the view that economic sanctions were never triumphant, and it produced desired impacts only in rare occasions. (Askari 2). Since the diplomatic relations were normalised in 1979, Trade dialogues and negotiations between China and United States appears to be simmering on many occasions, but it has been preserved almost uninterrupted. However, the economic sanction imposed by USA on China has resulted in major losses to both China and the USA. China has steadily refuted the charges on which the U.S economic censure were introduced. Further, U.S charges against China have been seen negatively seen by China and China was of the opinion that U.S is intimidating in its domestic affairs. U.S runs a trade deficit with China due to economic sanction as it has restricted its exports to China, and this has compelled China to search for suppliers from other parts of the globe. (Askari 70). The economic sanction will minimise the individual states’ human rights violations and can be an efficient mechanism for international law to safeguard human rights. The international community, including WTO, UN should inflict efficient economic sanctions against nations where there have been gross human right violations. The main aim of the economic sanction is not to punish the state concerned but to compel it to transform it demeanour. However, such economic sanction could be considered as intervention in state’s sovereign policy. Imposition of economic sanction is really conflicting with WTOs main agenda, i.e. free trade. Further, economic sanctions are often criticised as sanctions are aimed at the people at large and not at the state which is a real infringer of international regulations. (Baek 1). “Economic Sanction and WTO” Though economic sanctions are against the main principle of WTO namely free trade between member nations, economic sanctions under WTO are permitted when there is gross human rights infringement under the exceptional provisions of GATT in the WTO system. The member states of the GATT or WTO can decline National Treatment (NT) of Most Favoured Nation (MFN) only for the purposes expressly stated in the GATT. Further, the member states cannot inflict stipulations on NT or MFN like the targeted state’s adherence with international human rights regulations. For instance, the US recalling of MFN status accorded to Poland in 1980 would have been regarded as an infringement of the GATT in case if there was an objection from Poland. (Joseph 94). It is to be observed that the imposition of economic sanctions against human rights infringement is inherently and initially considered to be an infringement of free trade provisions of GATT as majority of such sanctions employs trade embargoes and the banning of the export of products to the targeted states where there is the infringement of human rights .Other WTO member nations can impose economic sanctions if China does not improve its human rights infringement, mainly through Article XX of the GATT. (Freese 9). “General exemptions- Article XX” Subject to the needs that such initiatives are not executed in a style that would constitute a way of unjustifiable and capricious between nations where the analogues’ stipulations exist, or a camouflaged restriction on international commerce, nothing in this Agreement shall be presumed to stop the enforcement or adoption by any contracting party of measures: (a) essential to safeguard public morals (b) essential to safeguard animal, human or health or plant life (e) “relating to the products of prison labour “ Member nations can use the Article XX (a) or (b) to make economic sanction against China as this Article facilitates to pronounce economic sanction against a WTO member nation which continuously infringes human rights. The Article XX (e) exception obviously acknowledges “extraterritorial” jurisdiction by authorising trade restraint initiatives against a foreign country’s prison labour. (Cassimatis 337). The advent of the internet appears to offer Chinese people greater access to news , information and data at present than it was available previously, but it is greatly edited , limiting access by Chinese people. Further, China has a poor track record of safeguarding of intellectual property right which is a basic WTO commitment. China’s violation of world-famous brands and product’s intellectual property rights results in loss of revenues to the most of the other WTO member nations due to loss of royalty payments and injured repute. To safeguard their economic interest, WTO member nations can employ the WTO dispute settlement mechanism against the Chinese copy right violation, mainly to safeguard public morals in the world trading system. Further, under Article XX (a) and (b), trade sanction can be employed against a member state, mainly to safeguard the “public morals” and to safeguard the animal, human or plant health or life. It is to be noted that in the “United States –Import Prohibition of some Shrimp and Shrimp Products” case, it was held that Article XX offers some power for individual member nations to retaliate against another member nation’s demeanour. (Beatty & Samuelson 209). The prevention of racial prejudice, slavery, the stoppage of gender prejudice, the freedom of get-together, the freedom of speech will be covered under the Article XX (a) exception on public morals. Further, crimes in the form of genocide, crimes against humanity, and disappearance will be covered under the Article XX (b) exception on human life. (Herdegen 206). No doubt, WTO helps many Chinese citizens to have more liberty to engage in China’s fast transforming economy, but the Chinese government has placed callous restraints on that engagement. Even now, the workers’ rights in China are in a deportable state as they were both exploited and put at peril. As per Charlie Wowkanech (1998), Chinese economic policy footed upon an aggressive export policy and methodologically has limited the foreign access to its home market and Chinese economic policy systematically infringes globally acknowledged employee’s rights .It is alleged that Chinese labour activists are often put behind bars, particularly in reduction camps for demanding independent and free trade unions and for complaining misappropriation and corruption. (“Congressional-executive commission on china 3”). Nonetheless, there is little scope of economic sanction against human rights infringements to be acknowledged under Article XX, through general exemption, in the WTO system. The main motive for this is that WTOs authoritarian observance of both the “compulsory “application of clauses (a) & (b) of Article XX and the “proportion” needs of chapeau which impacts the implementation of economic censure against gross human rights infringement. Thus, these prerequisites make Article XX general exceptions as an untidy locus for imposing economic censure against human rights infringement. (Macrory, Appleton & Plummer 106). International Human Rights Law, WTO and China It is stressed that GATT should be construed constantly with the international law. If there is gross human rights infringement, then announcing economic censure will be in line the GATT provisions. It is to be understood that basic human rights infringement is no longer just a domestic issue of the concerned individual member state like China. International human rights principles which are acknowledged as Jus Cogens offer the authority for the international community like UN to intimidate in offending states. Erga Omnes status of international human rights standards demonstrates that every member nation or state has a duty to observe these human rights standards and see that the other member nations also observe these without fail. Thus, when there is human right violation in any corner of the world, each and every state can even announce economic censure, but it is not restricted to UN alone though it has the authority to announce economic censure against these heinous perpetrators. (Hohmann 355) It is to be observed that while some economic censure may contradict with the main objective of the WTO namely free trade, but the economic censure against human rights infringement does not destabilise the WTO system itself. Whenever there is human right violation, “U.N Security Council, European Union and U.S “ have declared economic sanction against perpetrating state in the past, mainly to safeguard the interest of the gullible citizens whose rights are infringed by their own states. UN security council in the past announced economic sanctions against various states viz. against Southern Rhodesia , Iraq , Federal Republic of Yugoslavia , Somalia ,Rwanda , Sierra Leone , Liberia , Democratic Republic of Congo (DRC) , Cote d Ivoire , and Sudan .Thus , in the above cases , the UN Security Council sanctions acted and bolstered fundamental human rights in these regions. In all the above cases, the economic censure has been mentioned in the text of the UN resolutions itself which is against the gross human rights infringement which is codified in the international law which includes U.N Charter too. Thus, economic censure by the UN Security Council has at least some positive impact on international human rights law, and that they construct international human rights principles in an orderly manner. (Cassimatis 111). United States also applied economic censure when there is gross human rights infringement. Immediately after the Tiananmen Square massacre in 1989, USA announced economic censure against China. US attempted to issue economic censure against Sudan in 2007 to stop human rights violations in the Darfur region. US also applied economic censure against Chile, Brazil, Ethiopia, Cuba Poland, South Africa, Iraq, Haiti, Burma, and Iran. Hence, US has employed economic censure as a weapon to influence a targeted state to transform its policies or its government actions. Thus, the economic censure issued by the US has some positive impacts on international human rights law. US sanctions have compelled the targeted nations to acknowledge international treaty commitments including human rights principles and modestly transformed their policies on human rights. (Haass 12). Likewise, European Union (EU) has framed one of the most efficient international system for the safeguard of human rights and has announced economic censure against gross human rights infringement. EU has announced economic sanction against Belarus, DRC, Cote d Ivoire, Haiti, Burma, Sudan, and Zimbabwe. EU has obviously signified that the main goal of these economic censure is to “discard policies that pave to the infringement of human rights, the freedom of expression and to offer good governance. (Forsythe 83). Conclusion We have seen that there is possibility of introducing economic censure if there is human rights infringement under the WTO system and there is every chance of reconciling international economic law with that of international human rights regulations. Though, the economic censure is against the free trade provisions of the WTO but it can be exercised under the exceptional provisions contained in the GATT of WTO system when there is gross human rights abuse. If China does not recognise the human rights issues, there is no harm in employing trade restrictions initiatives against China by other WTO members for its gross human rights abuse. China cannot escape its international accountability on human rights abuse by categorising it as its internal affair. The principles of Jus Cogens offer the other WTO members the legal standing for the intervention in China if it flouts the WTO rules and if involved in human right abuses. Further, Erga Omnes principle offers that every nation has an interest in other nation’s human right issues and can intimidate when there is a gross misuse or abuse and hence, if China continues to involve in human right abuses, every nation has an interest to interfere in the internal affairs of the China under international law. (Luo 2009). Professor Patricia Hansen recommends that WTO power should be augmented with integration of human rights safeguard in the Doha Round and to authorise and beseech the WTOs Appellate Body to employ human rights safeguard as a factor in settling trade disputes. WTO’s Appellate Body need concrete proof of specific abuses relating to a trade dispute instead of general allegation of infringement. This condition would be inflicting a strict onus on the complaining nation and it facilitates the Appellate Body to draw proper and appropriate penalties for specific and actual abuses of international human rights commitments. (Luo 2009). Thus, economic sanction against China can result in the diminution of human rights abuses and it can be efficient enforcement mechanism under international law. Works Cited Arnold, R. The Universalism of Human Rights. New York: Springer, 2012. Askari, H. Economic Sanctions: Examining their Philosophy and Efficacy. New York: Greenwood Publishing Group, 2003. Baek, B S. Economic Sanctions against Human Right Violations. Cornell Law School Inter-University Graduate, 2008. Beatty, J F & Samuelson, S S. (2006). Business Law and Legal Environment. New York: Cengage Learning, 2006. Cassimatis, A. 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