WTO Dispute Settlement and Human Rights

WTO Dispute Settlement and Human Rights

1. Introduction

The relationship between the dispute settlement mechanism of the World Trade Organization (WTO) and human rights law¹ is only a small part of the wider issue of ethics and trade. The human rights aspects of trade actions cover a wide spectrum of moral, ethical, political, social and legal issues. Allegations of conflicts between, on the one hand, trade considerations and rules, and, on the other hand, respect for human rights, are regularly made. Some believe that WTO obligations somehow encourage, lead to, authorize or permit human rights violations, and that the WTO treaty should therefore be condemned.² Others have argued that violators of human rights are necessarily also violators of WTO rules.³ Still others want to use human rights considerations to justify deviations from WTO market access rules⁴ or to make preferences and other advantages conditional on compliance with human rights.⁵ Some recall that WTO Members are liable for the human rights consequences of their trade actions. The inconsistent positions of states in human rights and trade fora are also often alleged. Many suggest that conflicts between systems of laws (trade and human rights) and therefore systems of values must ultimately be addressed as matters of policy through political arenas, and that dispute settlement, by itself, is unlikely to resolve the issues.⁶

In attempting to break down and expound the relevant aspects of this debate, I will examine one small aspect of this multidimensional issue of trade and human rights: the WTO dispute settlement mechanism and human rights law. It is possible that the WTO dispute settlement system will be seized of a dispute carrying human rights arguments in support of either the complaint or the defence. In this context, a WTO dispute settlement panel may be called upon to answer the following questions. Can a WTO panel accept human rights allegations when there are no references to human rights in the WTO treaty? Can a WTO Member invoke a human rights provision to refuse to comply with a WTO provision? Does human rights law have direct application in the WTO system of law and before WTO adjudicating bodies? Can a member invoke human rights considerations in its interpretation of WTO rights and obligations? Does the WTO or international law authorize members to adopt measures that take into consideration human rights abuses occurring exclusively in another state and with no direct effect in that member's territory? These questions are but some aspects of the issue of the relationship between the WTO dispute settlement system and human rights law.

The concept of `dispute settlement' is broad. An important systemic issue of dispute settlement is concerned with the concept of `applicable law', i.e. the system of legal norms binding on WTO Members, as WTO Members, and providing for effective remedies. I suggest that WTO law is a specific subsystem of international law with specific rights and obligations, specific claims and causes of action, specific violations, specific enforcement mechanisms and specific remedies in case of their violation. The WTO dispute settlement system is also concerned with the distinct but parallel question of the limited jurisdiction and incapacity of the WTO adjudicating bodies to apply and enforce⁷ norms other than those of the WTO. The methods and tools used by WTO adjudicating bodies in the interpretation of the `WTO applicable law' are also important. In this paper, I will develop these three aspects in relation to human rights law.

Unless otherwise prescribed, WTO provisions must evolve and be interpreted consistently with international law, including human rights law. It is suggested that a good faith interpretation of the relevant WTO and human rights provisions should lead to a reading of WTO law coherent with human rights law. The recent Doha Declaration on TRIPS and Public Health⁸ is a good example of such coherent reading of WTO provisions taking into account potentially relevant human rights law. Part 2 of this paper suggests that the issue of whether WTO Members can invoke human rights law to refuse to comply with WTO obligations (including allegations of `conflicts' between WTO and other norms of international law) can only be adequately answered by examining the nature of the `WTO applicable law' - a specific subsystem of law - and the limited competence and jurisdiction of WTO adjudicating bodies. International law recognizes lex specialis systems which provide a specific system of treaty control and remedies. It is doubtful that WTO Members wanted to make WTO remedies available for human rights enforcement. Part 3 discusses the interpretation of the WTO applicable law taking into account, when relevant, human rights law.

Yet, even if their occurrence would be very rare, pure conflicts between WTO law and human rights, including jus cogens, are conceptually possible, and Part 4 examines the issue. In case of conflicts, WTO adjudicating bodies do not appear to have the competence either to reach any formal conclusion that a non-WTO norm has been violated, or to require any positive action pursuant to that treaty or any conclusion that would enforce a non-WTO norm over WTO provisions, as in doing so the WTO adjudicating bodies would effectively add to, diminish or amend the WTO `covered agreements'. A distinction exists between the binding obligations of states (WTO Members) - for which states are at all times responsible - and the `applicable WTO law'. `WTO applicable law' refers to the law binding on states, as WTO Members, which can be enforced (by effective remedies) by WTO adjudicating bodies which have been granted compulsory and exclusive jurisdiction over such WTO matters. A special focus is given to jus cogens. Arguably, because of its very nature, jus cogens would be part of all laws and thus would have direct effect in WTO law. The customary prohibition against any violation of jus cogens is such as to invalidate ab initio any violating provision, a legal reality that binds all states and all institutions. Situations of pure conflicts between WTO provisions and jus cogens are, however, difficult to conceive. In most, if not all, cases, the strong presumption against a violation of jus cogens will lead to an interpretation of WTO law which avoids such a violation. Some may argue that WTO panels and the Appellate Body do not have the capacity to determine the nullity of a WTO treaty provision for violation of jus cogens, as they only have the capacity to recommend that a national measure be brought into conformity with the covered agreements (although WTO provisions must be interpreted in taking into account relevant human rights law). In all cases, however, WTO Members in violation of human rights law remain subject to rules on state responsibility and liable for the consequences of that violation. In short, there is no perfect coherence between the human rights and WTO systems of law and jurisdiction.

Finally, in Part 5, I touch upon what is probably the most important and complex issue in the trade and human rights debate, that of WTO jurisdiction: to what extent can WTO Members' trade regulatory and preferential distinctions take into account, be based on, react to, or force policy and regulatory changes to, human rights situations taking place entirely and exclusively in another member's territory? Issues related to and encapsulated in the debate over WTO jurisdiction include: (1) whether and how WTO provisions permit WTO Members to act upon extra-jurisdictional matters; (2) whether and how foreign policy considerations are to be used in regulatory and preferential distinctions; (3) the state of WTO law on process and production methods (PPMs); and (4) issues relating to conflicts and overlaps with other legislative and judicial jurisdictions.

1 On WTO and human rights generally, see Ala'i, `A Human Rights Critique of the WTO: Some Preliminary Observations', 33 George Washington International Law Review (2000-2002) 537-533; Appleton, `The World Trade Organization: Implications for Human Rights and Democracy', 29 Thesaurus Acroasium (2000) 415-462; Bhagwati, `Trade Linkage and Human Rights', in Jagdish Bhagwati and Mathias Hirs (eds), The Uruguay Round and Beyond: Essays in Honor of Arthur Dunkel (1998) 241-250; Cleveland, `Human Rights Sanctions and the World Trade Organization', in F. Francioni (ed.), Environment, Human Rights and International Trade (2001) 199-261; Cohn, `The World Trade Organization: Elevating Property Interests Above Human Rights', 29 Georgia Journal of International and Comparative Law (2001) 247-440; Flory and Ligneul, `Commerce international, droits de l'homme, mondialisation: les droits de l'homme et l'Organisation mondial du commerce', in Commerce mondiale et protection des droits de l'homme: les droits de l'homme E0 l'E9preuve de la globalization des E9changes E9conomiques (2001) 179-191; Lim, `Trade and Human Rights: What's At Issue?', 35 Journal of World Trade (2001) 275-300; Petersmann, `From 93Negative94 to 93Positive94 Integration in the WTO: Time for 93Mainstreaming Human Rights94 into WTO Law', 37 Common Market Law Review (2000) 1363-1382; Qureshi, `International Trade and Human Rights from the Perspective of the WTO', in F. Weiss, E. Denters and P. de Waart (eds), International Economic Law with a Human Face (1998) 159-173; Stirling, `The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization', 11 American University Journal of International Law and Policy (1996) 1-46.

2 In addition to a series to activists' allegations, one may also refer to the first report of the Expert Group of the SubCommission on Human Rights, 15 June 2000, which became known as the `Nightmare Report' (having qualified the WTO as the `nightmare' of human rights and developing countries) - E/CN.4/Sub.2/2000/13.

3 Robert Howse and Makau Mutua have written: `[I]t is absurd to expect a country that systematically violates basic human rights to faithfully execute and implement the processes that WTO agreements require.' Howse and Mutua, `Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization' (International Center for Human Rights and Democratic Development, Policy Paper, 2002) at 17. I would tend to agree with JosE9 Alvarez (commenting on Howse and Mutua's paper) that: `Many human rights violators routinely comply with international economic agreements and many prominent defenders of human rights, including the United States, have trouble adhering to and complying with some international agreements.' See Alvarez, `Trade and the Environment: Implications for Global Governance: How Not to Link: Institutional Conundrums of an Expanded Trade Regime', 7 Widener Law Symposium Journal (2001) 1.

4 E.g. the invocation of GATT Articles XX or XXI or GATS Articles XIV or XIVbis.

5 E.g. the labelling requirements referring to human rights considerations and the possibility of human rights considerations in GSP preferences.

6 See e.g. Alvarez, supra note 3.

7 `Enforce' will be defined as providing for effective remedies.

8 WT/MIN(01)/DEC/2. See also the reference to that Decision in the Statement from the Committee on Economic, Social and Cultural Rights, 29 November 2001, paras 15 and 18.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Wednesday, October 16, 2002 12:52AM