Protection of Fundamental Rights in Latin American FTAs and MERCOSUR: An Exploratory Agenda

Date01 November 2014
Published date01 November 2014
Protection of Fundamental Rights in Latin
American FTAs and MERCOSUR:
An Exploratory Agenda
Marcilio Toscano Franca-Filho,* Lucas Lixinski** and
Belén Olmos Giupponi***
Abstract: Latin America is a fertile ground for exploring issues of trade and human
rights, but relatively little seems to be written about human rights in economic integra-
tion processes across Latin America. This article is an attempt at remedying this. It is
an exploratory piece that highlights some of the major issues across a wide range of
Free Trade Agreements involving Latin American countries, with particular emphasis
on MERCOSUR. The authors conclude that in spite of Latin America’s openness to
international human rights discourses, pragmatism seems to dominate trade negotiations.
While human rights considerations are slowly seeping into trade negotiations, this seems
to happen largely because of pressure exerted by outside actors. There appears to be a
lack of true endogenous push towards human rights and trade inside the bloc.
I Introduction
International human rights law is certainly one of the central concerns of interna-
tional legal orders today and one that has claimed the role of the dominant utopia in
international legal discourse, which is not to say, of course, that human rights are
always accepted in every area of international law. To the contrary, human rights are
regarded to be inconsistent with and sometimes even antithetical to several fields of
international regulation. The prime example is that of trade, which, save for readings
of trade regulation in a constitutional framework, is largely seen as an area where the
market reigns and all attempts to impose limits on that market are adversely per-
ceived. As a result, human rights law, because of its tendency as a discourse to oppose
unbridled liberalism, would be antithetical to the market. It is understood as a costly
set of legal commitments to implement and one that does not improve conditions for
trade (or so goes the discourse of economic liberalism). Let the market be free, and
human rights will follow, it is averred.
* Professor of Public Law, Faculty of Law, Federal University of Paraíba, Brazil.
** Senior Lecturer, UNSW Australia Law School.
*** Lecturer, School of Law and Philosophy, University of Stirling, Scotland. The authors would like to
thank the colleagues who attended the workshop ‘Free Trade Agreements vs. Constitutional Rights’
(16–17 February 2012) organised by P. De Lombaerde and S. Kingah at the UNU-CRIS (Bruges) for
their useful comments to parts of this paper. All errors remain our own.
European Law Journal, Vol. 20, No. 6, November 2014, pp. 811–823.
© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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