1-ITL and Human Rights

international economic law series
General Editor: John H. Jackson

HUMAN RIGHTS AND INTERNATIONAL TRADE
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Human Rights and
International Trade
Edited by
THOMAS COTTIER
JOOST PAUWELYN
and
ELISABETH BRGI BONANOMI
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3
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General Editors Foreword
john h jackson
This book represents the results of a three- to four-year project on the difcult
conceptual problem of the relationship of human rights policies and norms to
the World Trade Organization. The interrelationship between human rights
and international trade is an extraordinarily difcult conceptual problem
involving (inter alia) civil and political rights on the one hand, and social and
economic rights on the other hand. At an early conference for this project, there
were essentially two large groupsone from the human rights community and
one from the trade community. These groups were essentially talking past
each other, which, given the different background of each group, should not be
surprising. Indeed, part of the point of that rst conference was simply to get
issues out on the table.
1
At the second conference, some brilliant case studies were discussed to try to
develop empirical real world perspectives. This was real progress, but it was
only at the third conference that the project really began to get into the depths
of a conceptual discussion.
2
Hopefully, the project can lead further to an overall road map of these issues,
which is extraordinarily complex.
To begin an analysis, the notion of human dignity being at the base of human
rights is very valuable, but it may be a notion that has been pushed too far
sometimes. There are also powerful instrumental or functional arguments that
support some of the human rights. In other words, we can see two sets of
arguments for human rights. On the one hand, the dignity that is inherent in
each individual because we think that humans should be free from certain kinds
of oppression, torture, and certain other kinds of degradation. On the other
hand, one could say that there are also functional aspects. Some of those func-
tional aspects support the dignity aspects, but functional aspects relate, per-
haps, more to how governments operate and to the need for certain human
rights to be effective in order for governments to govern appropriately. Thus
freedom of speech, freedom of the press, and perhaps property rights all have
functional value in the sense that a certain amount of individual freedom or
property in the hands of individuals helps them fend off incursions from
elsewhere, including from governments. This clearly could benet from more
exploration. Some of these rights also have economic policy implications.
1
The results of this rst conference will be published in F M Abbott/C Breining-Kaufmann/
T Cottier (eds), International Trade and Human Rights, Foundations and Conceptual Issues, World
Trade Forum, vol 5, University of Michigan Press (forthcoming 2005).
2
The results of the second and the third conferences are published in the present volume.
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To think these issues through, it is important to look at the goals of the
human rights. What are the goals of protection against torture, freedom of
speech, or ownership of property? What are the goals of some of the other
human rights? It is at this point that we delve into thought approaches which
are often avoided by the experts, namely the need to disaggregate the question
of human rights, or differentiate among human rights and look at them case by
case so as to develop priorities. In many ways, that task has been anathema to
the discussion of human rights because, for one thing, it is politically detrimen-
tal to disaggregate the human rights spectrum, since, in doing so, you lose some
of a broader coalition constituency. However, it is important to look at each
individual human right, and look at the goals that support it because this may
lead to different conclusions about how supporting those goals calls for differ-
ent approaches at different levels of the vertical ladder of power in the world.
As an example on this subject, there are clearly some differences between the
US perspective and European perspectives. This may stem from a broader
difference over international law generally, and over a number of other issues
being very strongly debated recently. Here we can mention one or two of those
differences that affect the human rights area. For one thing Americans, particu-
larly those who have delved deeply into constitutional law, know the 1930s
history of the US Supreme Court, which really leads many Americans to the
almost inevitable conclusion that we ought not to constitutionalize economic
rights. There are real risks in bringing to the judiciary certain issues, including
certainly some risks in the area of economic rights.
This does not mean that you can completely separate certain human rights
from these economic ideas. For example, in the Bill of Rights there is a property
right, which is an economic right, but there are limits to how far the market
ideas will go. For instance, to impose the market idea on a constituency that any
government regulation whatsoever is a taking of property is very dangerous.
Many human rights scholars, including those in this project, recognize that
one of the tough issues of human rights is the constant balancing, the constant
dening of the limits to rights. The extraordinarily rich jurisprudence of the
European Court of Human Rights with regard to human rights highlights this
need for balance, limits, and denition. This includes the notion that the limits
may evolve as society evolves, over time. (This is anathema to many national
sovereignty enthusiasts, and to those who oppose any evolutionary notion of
international law or interpretation.)
There is another aspect to this difference of opinion that is very pragmatic
also. What are the goals of citizensindividual citizens trying to carry out their
family lifeand what will promote the ability to full those goals? This comes
with the realization that economics is very central to those needs. But there is a
difference in attitudes between sides of the Atlantic on how structurally you
design governments to aid individual citizens. The US has sensed over many
years that it is the job of the nation-state, because in the US case, the nation-
state has been a very strong protector of human rights and economic welfare of
John H Jackson vi
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its citizens. In Europe, the rst half of the last century was a disaster, with two
huge wars (European civil wars?), which naturally led to a view that nation-
states cannot be relied on for adequate protection, and therefore citizens must
go to a regional international organization which now is becoming extraor-
dinarily important (and successful).
Those factors have led to a series of differences in each sides denition of the
relationship between national law and international law. Some want inter-
national norms to be automatically introduced into domestic norms. Another
view is that the international system is far from being democratic and legitimate
in a lot of spheres, and therefore this approach is very dangerous and, to some
degree anti-democratic. Many still think the nation-state, on the whole and in
most places, better protects against misuse of power by governments than does
the international system, although this may change over time.
Those issues engage concepts of constitutionalism, signs of which we can
see in the WTO, especially its extraordinary and powerful dispute settlement
system. The 27,000 pages of the WTO jurisprudence already reported probe
the frontiers of these issues, such as in the remarkable ShrimpTurtle case.
3
One feature that is clearly manifest is the notion of balancing between com-
peting policy objectives.
We have to consider in depth what some of the elements of constitutionalism
are, but one of the salient elements is a system that has certain kinds of frame-
work norms that are very hard to change, and that those more rigid framework
norms protect unpopular views in the short term, and also protect against
majority rule to some extent in favour of minority rights. Therefore, you end
up, of course, protecting human rights in many ways.
In the ShrimpTurtle case, the key alternative tension-building policy to
trade is the environment. But you could read human rights into that kind of ten-
sion also. The Appellate Body says that it must not only look at the trade val-
ues, but must look more broadly. Then it embellishes that reasoning with
something from the treaty text and discusses balancing.
This kind of balancing is clearly a key to the conceptual problem in a lot of
these trade linkage areas. You also see a lot of balancing going on in the
jurisprudence of the European Convention on Human Rights. There is also bal-
ancing undertaken in the US Supreme Court jurisprudence.
Another concern we may have for future explorations is that human rights
linkage to the international trade agenda is a subject that is very hard to
contain. It is a sprawling, broad landscape, sometimes referred to as a multi-
dimensional chess game.
This project has at least helped to answer the question whether it is possible
more explicitly to link trade and human rights. In a lot of areas, the link has
been achieved, most poignantly and elaborately in the recent developments of
Foreword vii
3
United StatesImport Prohibition of Certain Shrimp and Shrimp Products, Report of the
Appellate Body, WTO Doc WT/DS58/AB/R (adopted 6 November 1998).
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the European Community. We can now clearly see that there is a much more
obvious and explicit link of human rights with a eld many people had thought
was purely economic. You also see at least the beginnings of it in some of the
prior treaties of the European Community (eg with its ACP states), and you
can also see it in the GSP issue (you can call it conditionality). One of the things
we are learning (at least in the background, as there has not been very much press
devoted to it) is that in a number of free trade agreements, bilateral or regional,
there are explicit treaty clauses being introduced for transparency, good gover-
nance, anti-corruption, and so on. It seems only a whisper away to add things
like human rights. Furthermore, there is background conditionality of human
rights for some of the agreements, without any treaty text. And human rights
appear even in some proposed treaty texts in the case of the potential FTAA. In
NAFTA, underneath the surface, Congress was always raising the question
whether the US was going to accept as a NAFTA partner a country that is not
pursuing human rights protections.
Amidst this debate something more dramatic is occurring, particularly in the
last fteen years, namely the changing fundamentals of international law. These
changing fundamentals target the problem of the sovereignty concept, which,
in many (but not all) ways, is a bankrupt notion. A corollary question involves
the consent theory of international law, and the degree to which we are still
going to rely upon a consent idea of legitimation of international norms. With
regard to treaties, the answers are relatively easier, but must also address the
questions of rogue states and failed states and their committing genocide or
other actions on their own population. Given the many factors involved, it is
easy to see why many say that customary international law is in a mess, and that
the jus cogens ideas are part of customary international law, and therefore also
in a mess. Human rights analyses must grapple with these problems.
Finally, we can return to constitutionalism, which was prominently men-
tioned in this project. One question to keep in mind is whether we are deal-
ing with a living constitution. If so, it is something that we have to assume
will have a certain evolutionary aspect and, of course, that contrasts starkly
with consent theory, with different ideas of legitimation. But one can also
add here that, despite these changing fundamentals, there is a continuing
and very crucial role for the nation-stateperhaps especially so in protecting
human rights.
One of the remaining questions, of course, will be: where does this research
go in the future? One thought is that a new project should develop some
hypothetical cases that force thinking beyond the frontiers for which there are
not (yet) cases. For example, suppose you have a situation of ethnic cleansing
(without calling it genocide, although in some cases it may really amount to
genocide). Suppose such a situation of ethnic cleansing is not even of the sort
as lethal as we have recently seen. One could argue strongly that it is really a
dramatic violation of human rights to send a population to the borders of other
states or corral them in a particular territory. Then suppose the United Nations
John H Jackson viii
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imposes trade measures against a country that is engaging in the ethnic
cleansingan embargo and other measures of restricting trade of all kinds. The
question becomes: how do you get compliance with those trade measures? A lot
of countries will probably comply, but there are the rogue states that will not,
and their actions undermine what the others are doing. It undermines the
pressure that can be exerted, and it also creates a situation in which those
rogue states are proting from a sort of monopoly because the ones that are
withholding trade now are at a disadvantage, making it even more valuable for
smugglers, nancial ows, and a whole series of related activities. Does there
arise at any point some kind of right on the part of the states that are complying
to defend against a WTO case? You can play this hypothetical either with a UN
resolution, or without.
Without the resolution, the hypothetical creates a slightly more perplexing
puzzle. Suppose you have a group of like-minded states, a coalition of the
willing, if you will, who say they are not going to tolerate another Rwanda, and
are going to do everything they can to bring pressure, just short of sending in
troops. They agree to cut off the trade with the culprit state, as far as they can,
but, at the same time, know that countries X, Y, and Z are just making a huge
prot out of not complying, to say nothing of the potentates that rule the target
country and are lining their pockets. So the coalition extends its trade limits to
X, Y, and Z, and these states bring a case in the WTO. How far would or should
the coalition be able to defend such a WTO case?
A hypothetical like that might force us to walk through a number of concepts,
and navigate the broad landscape that we have in front of us. But clearly that is
a task for further research, building on the admirable discussions of the project
described in this book.
Foreword ix
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Acknowledgements
Many people have contributed to this project and book. The editors are
particularly grateful to the American Society of International Law (ASIL),
Professor John H Jackson, Georgetown University, Professor Frederick M
Abbott, former co-director of the project, and Kathleen Wilson of ASIL. They
all were critical in initiating research efforts on trade and human rights.
Three conferences took place under the auspices of the project. Two were
hosted in 2001 and 2003 at the World Trade Institute (WTI) in Berne, one in
2004 at the Georgetown University in Washington, DC. This volume contains
papers written for the second and third conferences, while a separate volume
entitled International Trade and Human Rights, Foundations and Conceptual
Issues, World Trade Forum Volume 5 (edited by F Abbott, C Breining-
Kaufmann; University of Michigan Press, forthcoming) contains the initial
contributions to the project. We hope that the books in tandem will stimulate
debate and bring about solutions in a new and complex legal relationship. We
express our gratitude to the hosting institutions and universities, and to the
respective staff who made the realization of these conferences and volumes pos-
sible. We acknowledge with gratitude the John D and Catherine T MacArthur
Foundation, USA, the Silva Casa Foundation as well as the Ecoscientia
Foundation, both Switzerland, which have nancially supported the project,
allowing participants from all quarters of the World to attend the conferences.
We are most grateful to the contributors to this volume and for their willingness
to join an inspiring, but complex, effort. We also express our appreciation
to Catherine Gerber, Sarah Levy, and Angela Bhler of the WTI and the
Department of Economic Law at the University of Berne, for their invaluable
editorial assistance in the preparation of this volume. We are grateful to Oxford
University Press, in particular John Louth and Rebecca Smith, for making
available the proceeds of the project to a broader audience.
Thomas Cottier
Joost Pauwelyn
Elisabeth Brgi
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Contents
List of Editors xiv
List of Contributors xv
Introduction 1
thomas cottier, joost pauwelyn, and elisabeth brgi
I. Conceptual Questions: Dening and Connecting
the Two Fields
1. Bridging Foundations 29
Human Rights and International Trade Law:
Dening and Connecting the Two Fields 29
ernst-ulrich petersmann
The Legal Matrix of Human Rights and Trade Law:
State Obligations versus Private Rights and Obligations 95
christine breining-kaufmann
Sosa v Alvarez-Machain and Human Rights Claims
against Corporations under the Alien Tort Statute 137
carlos manuel vzquez
States and Private Actors Obligations under International
Human Rights Law and the Draft UN Norms 148
karin lucke
2. Cooperation in Law-making 165
Institutional Cooperation and Norm Creation in
International Organizations 165
victor mosoti
Mediating Interactions in an Expanding International
Intellectual Property Regime 180
laurence r helfer
Commentary on Victor Mosoti
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Institutional Cooperation and Norm Creation in International
Organizations: The FAOWHO Codex Alimentarius 192
marsha a echols
Human Rights and Trade: Two Practical Suggestions for
Promoting Coordination and Coherence 199
caroline dommen
3. Cooperation in Dispute Settlement 205
Human Rights in WTO Dispute Settlement 205
joost pauwelyn
A Human Rights Approach to Trade? Some Reections 232
qingjiang kong
Commentary on Joost Pauwelyn
Integrating Enforcement of Human Rights Laws with
Enforcement of Trade Laws: Some Baseline Issues 236
maria green
Commentary on Cooperation in Dispute Settlement
II. The Trade and Human Rights Interface in Practice: Case Studies
4. Freedom of Expression 245
Linkages between Freedom of Expression and Unfair Competition
Rules in International Trade: The Hertel Case and Beyond 245
thomas cottier and sangeeta khorana
The Hertel Case and the Distinction between Commercial
and Non-Commercial Speech 273
christoph b graber
Commentary on Thomas Cottier and Sangeeta Khorana
5. Right to Health 279
The Rule of Reason and the Right to Health:
Integrating Human Rights and Competition Principles
in the Context of TRIPS 279
frederick m abbott
The Right to Health, Intellectual Property, and
Competition Principles 301
sisule f musungu
Commentary on Frederick M Abbott
Contents xii
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International Trade and Human Rights: Conicting Obligations 311
prabhash ranjan
Commentary on Frederick M Abbott
Trade, Human Rights, and the WHO Framework Convention on
Tobacco Control: Just What the Doctor Ordered? 322
allyn l taylor
Conicting Rules in the WHO FCTC and Their Impact 334
werner meng
Commentary on Allyn L Taylor
6. Right to Food 341
The Right to Food and Trade in Agriculture 341
christine breining-kaufmann
Reconciling TRIPS and the Right to Food 382
shelley edwardson
7. Conict Diamonds 391
Stopping Trade in Conict Diamonds: Exploring the
Trade and Human Rights Interface with the WTO
Waiver for the Kimberley Process 391
krista nadakavukaren schefer
Conict Diamonds and the WTO: Not the Best Opportunity
to be missed for the TradeHuman Rights Interface 451
kevin r gray
Commentary on Krista Nadakavukaren Schefer
8. Conditionality in GSP Programmes 463
The Appellate Body Report in European CommunitiesConditions
for the Granting of Tariff Preferences to Developing Countries and
its Implications for Conditionality in GSP Programmes 463
lorand bartels
GSP Programmes and Their Historical-Political-Institutional
Context 488
gregory shaffer and yvonne apea
Commentary on Lorand Bartels
The Enabling Clause and the Applied Rules of Interpretation 504
jane bradley
Commentary on Lorand Bartels
Index 507
Contents xiii
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List of Editors
Thomas Cottier is Professor of European and International Economic Law at
the University of Berne, Switzerland, and Managing Director of the World
Trade Institute, Berne, Switzerland, and has been a member and Chairman of
numerous WTO/GATT panels. He has published extensively in the eld of
trade law, in particular with respect to intellectual property.
Joost Pauwelyn is Associate Professor of Law, Duke University School of Law.
Formerly he was a Legal Affairs Ofcer with the WTO Secretariat (Legal
Affairs Division and Appellate Body).
Elisabeth Brgi Bonanomi lic.iur (LLM equivalent) and attorney at law,
research fellow at the University of Berne and the World Trade Institute, Berne,
Switzerland. She is in charge of the project on trade and human rights and is
currently working on her PhD on Sustainability Principles for Trade in
Agriculture. Formerly she was a Legal Affairs Ofcer with the Economic
Department of Berne.
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List of Contributors
Frederick Abbott is Edward Ball Eminent Scholar Professor of International
Law at Florida State University College of Law.
Yvonne Apea is Programme Coordinator for Africa and Legal Affairs at the
International Centre for Trade and Sustainable Development (ICTSD),
Geneva.
Lorand Bartels is a Lecturer in International Economic Law at the University of
Edinburgh.
Jane Bradley is Deputy Director at the Institute of International Economic
Law, Georgetown University Law Center. Previously she served in the
Executive Ofce of the President of the United States for more than twenty
years, primarily in the Ofce of the US Trade Representative (USTR). While at
USTR, she was the lead US negotiator on the agreement that created the World
Trade Organization (WTO) dispute settlement procedures, and she headed the
USTR ofce responsible for WTO litigation. She held various positions within
USTR, including Assistant US Trade Representative for Monitoring and
Enforcement, Deputy General Counsel, and Legal Advisor to the USTR
delegation in Geneva.
Christine Breining-Kaufmann is a Professor of International, European,
Constitutional, and Administrative Law and Co-Director of the Institute of
International and Comparative Constitutional Law at the University of Zurich.
She is also a Member of the Board of the World Trade Institute in Berne.
Previously, she served in the legal department and then as Director of Human
Resources at the Swiss Central Bank. During that time she was a member of
the EFTA expert groups on nancial services and free movement of capital and
services and represented the Swiss Central Bank in the negotiations on the
European Economic Area.
Caroline Dommen is founder and director of 3D Trade Human Rights
Equitable Economy. Previously, she was International Law Ofcer of
International Centre for Trade and Sustainable Development (ICTSD) based in
Geneva. She has also held the posts of Programme Ofcer of the International
Service for Human Rights in Geneva and New York, and Expert on Trade and
Environment at UNCTAD. Caroline is a member of several professional bodies
including the International Advisory Network of the Business & Human Rights
Resource Centre, the IUCNWorld Conservation Union Commission on
Environmental Law, and the Editorial Board of the Journal of International
Wildlife Law and Policy.
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List of Contributors xvi
Masha A Echols is a Professor of Law at Howard University School of Law.
Formerly she was a Member, United Nations Administrative Tribunal; Adjunct
Professor, University of Virginia School of Law; Adjunct Professor, The
National Law Center, George Washington University; and a Fulbright Senior
Scholar.
Shelley Edwardson is an Associate at Allen & Overy LLP.
Christoph Beat Graber is Professor of Law, University of Luzern Faculty of Law
and Head of i-call (International Communications and Art Law Lucerne). He
was Managing Director of the Swiss Independent Complaints Authority for
Radio and Television; he is now a member of the Swiss Federal Arbitration
Commission for the Exploitation of Authors Rights and Neighbouring Rights.
Kevin R Gray, LL.M. is currently Counsel at the Trade Law Bureau at the
Canadian Department of Foreign Affairs and International Trade. He is an
international lawyer and academic, having taught at the London School of
Economics and the School of Oriental and African Studies. He has also been a
research fellow at the Royal Institute of International Affairs and the British
Institute of International and Comparative Law.
Maria Green is an Assistant Professor in the Graduate Programs on Sustainable
International Development at The Heller School for Social Policy and
Management, Brandeis University. She has previously worked in international
economic, social, and cultural rights as Director of the International Anti-
Poverty Law Center and International Advocacy Coordinator at the Center for
Economic and Social Rights, and has been a consultant for several human
rights-related projects at UNDP and the UN Ofce of the High Commissioner
for Human Rights.
Laurence R Helfer is a Professor of Law and Director of the International Legal
Studies Program at Vanderbilt University Law School. He has published
numerous law review articles and lectured widely on international intellectual
property law, international human rights, and international litigation and dis-
pute settlement. He serves as a consultant to the United Nations Food and
Agriculture Organization, which published his monograph, Intellectual
Property Rights in Plant Varieties: International Legal Regimes and Policy
Options for National Governments, in late 2004.
Sangeeta Khorana is a Research Associate at the Swiss Institute for International
Economics and Applied Economic Research, University St Gallen.
Qingjiang Kong is Dean and Professor at the Faculty of Law, Zhejiang
Gongshang University. Adjunct Professor, China University of Political Science
and Law.
Karin Lucke has worked as a human rights ofcer with the United Nations
Ofce of the High Commissioner for Human Rights (OHCHR) since 1995,
00-Cottier-Prelims.qxd 17/10/05 01:31 PM Page xvi
including in the OHCHR eld ofce in Croatia. Current responsibilities focus
on supporting follow-up of treaty body recommendations by States parties
and other stakeholders at the national level, including through training
activities. Prior to joining the UN, she worked in several non-governmental
organizations active in the eld of preventive diplomacy, conict prevention,
transformation, and resolution. She holds a Masters degree in International
Affairs from Columbia University, with a specialization in human rights and
international law.
Werner Meng is Director of the European Institute and Professor of Law at the
University of Saarland, Saarbrcken. Formerly he was Professor of Law at the
Martin Luther University in Halle, Attorney at Law in Munich, and Research
Fellow at the Max Planck Institute for Comparative Public and International
Law, Heidelberg.
Victor Mosoti is Legal Ofcer in the Development Law Service of the United
Nations Food and Agriculture Organization in Rome, Italy. Formerly he was
Coordinator for African and Legal Affairs at the International Centre for Trade
and Sustainable Development (ICTSD) Geneva.
Sisule F Musungu is a lawyer and the Team Leader on Intellectual Property,
Investment, and Technology, South Centre.
Krista Nadakavukaren Schefer is a lecturer and senior research fellow at the
Institute of European and International Economic Law, University of Berne and
the World Trade Institute, University of Berne.
Ernst-Ulrich Petersmann is Professor of International and European Law at the
European University Institute in Florence. He is Academic Director of the
Transatlantic Programme of the Robert Schuman Centre for Advanced Studies,
Florence. He has been a lecturer at the Universities of Hamburg, Heidelberg,
and the Saarland and Professor of Law at the Universities of St Gallen,
Fribourg, Geneva, and the Geneva Graduate Institute for International Studies.
He is a former legal adviser in the German Ministry of Economic Affairs,
GATT, and the WTO and Chairman of the International Trade Law Committee
of the International Law Association.
Prabhash Ranjan is a Research Ofcer at the Centre for Trade and
Development (Centad), an Oxfam GB initiative, in New Delhi. Before that
he was a Legal Researcher at the CUTS Centre for International Trade,
Economics, and Environment in Jaipur.
Gregory Shaffer is Professor of Law at the University of Wisconsin Law School;
Director of the UW European Union Center; and Co-Director and Senior
Fellow of the UW Center on World Affairs and the Global Economy.
Allyn L Taylor is a professor at the University of Maryland School of Medicine
and Adjunct Professor in Residence at the University of Maryland School of
List of Contributors xvii
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Law. Before that she was Senior Health Policy Adviser at the World Health
Organization, Geneva, and Chair of the International Health Law.
Carlos Manuel Vzquez is Professor of Law at Georgetown University Law
Center and Director of its Human Rights Institute. He has been a member of the
Inter-American Juridical Committee, Organization of American States.
List of Contributors xviii
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[T]odays threats to our security are all interconnected. We can no longer afford to see
problems such as terrorism, or civil wars, or extreme poverty, in isolation. Our strategies
must be comprehensive. Our institutions must overcome their narrow preoccupations
and learn to work across the whole range of issues, in a concerted fashion.
Ko Annans Foreword to the UN High-level Panel on Threats, Challenges, and
Change (entitled A More Secure World: Our Shared Responsibility), available at
http://www.un.org/secureworld/report.pdf, December 2004
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Introduction
Linking Trade Regulation and Human Rights in
International Law: An Overview
thomas cottier, joost pauwelyn, and
elisabeth brgi
i. introduction
Predictable and stable conditions of market access, gradual dismantlement of
trade barriers in industrial goods and services, and enhanced protection of
human rights epitomize Western perceptions of world order and peace after the
Second World War. Both, trade regulation and human rights protection, aspire
in their own ways after welfare in the pursuit of human happiness. Both formed
essential parts of the 1942 Atlantic Charter. Ever since the adoption of the
General Agreement on Tariffs and Trade (GATT) in 1947 and the Universal
Declaration of Human Rights in 1948, each of these two components evolved
in their own and distinctive ways, with their own logic and institutions. Bluntly
put, the Bretton Woods institutions (World Bank, International Monetary Fund,
and GATT) focused on the worlds economic problems;
1
the UN institutions
had a wider, mainly political brief. Yet, post-war history shows that trade liber-
alization partly goes hand in hand with enhanced enjoyment and protection of
human rights, while tensions are not excluded. Such tensions mainly appear in
the context of structural adjustment. They partly render afrmative action
necessary, in particular in support of sustainable agriculture and the rights of
the rural poor as well as in efforts for safety nets and retraining of low-skilled
workers in developed countries.
Both trade regulation and human rights have strongly contributed to the
development of international law. For many decades, the legal relationship
1
Both the IMF and World Bank articles of agreement, for example, explicitly stated that political
factors could not be taken into account. Operations were to be based (eg loans are to be distributed)
solely on economic grounds (and not, for example, with reference to a countrys human rights or
corruption record).
01-Cottier-Intro.qxd 17/10/05 01:32 PM Page 1
between the two may be described as a matter of co-existence. Interactions have
existed since their inception, but remained marginal or largely ineffective.
Linkages were created, for example, through UN embargoes aimed at ending
apartheid or improving human rights. Similarly, efforts to ratchet-up labour
standards, or at least prevent a race to the bottom in labour protection as a
result of global competition, have been on the agenda for decades (and are
addressed in International Labour Organization (ILO) conventions), but failed
to materialize within the multilateral trade system. Linkages are manifest also
in the human rights or good governance conditions attached to trade promo-
tion programmes in domestic legislation and preferential market access in bilat-
eral or regional agreements. Internationally, such linkages are reected in IMF
loan conditionalities and World Bank project guidelines on, for example,
indigenous people.
In recent years, the debate has changed. A number of factors were conducive.
Trade regulation expanded into the elds of intellectual property and services
under the umbrella of the newly found World Trade Organization. Dispute
settlement under the WTO was strongly reinforced, allowing for appeals and
automatic rulings and trade sanctions in case of sustained violations of WTO
law. At the same time, new social problems of a global scale emerged: in particu-
lar, the epidemic of HIV/AIDS called for access to essential drugs by many
affected. Seemingly, patent protection for pharmaceutical products rendered
mandatory for WTO members under the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS) emerged as a potential obstacle.
Pharmaceutical companies, invoking the TRIPS Agreement, sought to limit or
ban parallel importation of cheaper drugs. While there was no legal title to such
a claim under the TRIPS Agreement, the attitude and pressure exerted triggered
a counter-offence under the banner of the right to health, depicting the TRIPs
Agreement and the WTO as a whole to be hostile and detrimental to human
rights. A new subject of linkages was born: trade and the right to health.
Importantly, the trade and health question arose owing to additional trade
restrictions, based upon patent legislation, not because of new liberalization. For
many, this was cause enough to argue against the inclusion of intellectual prop-
erty standards into the trading system, supported by human rights claims. More
moderate views, recognizing the importance of intellectual property rights
(IPRs) for fair conditions of competition and investment, were encouraged to
reassess the balance of rights and obligations, of private and public domain, in
the eld of intellectual property and to work towards modied rules.
2
Access to
essential drugs was eventually settled, though not necessarily achieved in prac-
tice, by means of a waiver for exportation under compulsory licensing.
The incident, however, induced a much wider discussion of the subject that
went far beyond the eld of intellectual property. Many human rights lawyers
Thomas Cottier, Joost Pauwelyn, and Elisabeth Brgi 2
2
See, for example, Keith Markus and Jerome Reichmann (eds), International Public Goods and
Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge University
Press, 2005).
expressed the fear that WTO rules, supported by its enforcement mechanism,
elevate free trade over and above human rights protection and promotion,
leaving legitimate concerns without adequate protection and consideration.
The problem parallels other areas of potential linkages: trade and environment,
trade and labour, trade and culture. For each of these linkage questions,
increased inter-dependence between states and between issue-areas made
the separation between different elds of international law look all the more
articial. The emergence of non-state actors on the international arena (be it
non-governmental organizations, companies, or world public opinion) put
additional pressure on government representatives not to deal with problems in
isolation, but when regulating international trade to take account also of what
had been decided at the UN in terms of environmental or human rights protec-
tion. Trade lawyers, confronted with these challenges, felt compelled to clarify
the relationship of trade regulation, economic law in general, and human
rights. More specically, they started to explore the status of human rights in
trade law, including the prospects for WTO adjudication. A process towards
greater coherence began, counteracting the legacy of fragmentation in inter-
national law.
The debate on trade and human rights is complex. The challenge is profound.
It addresses a multitude of different problems. A major problem and challenge
consists in organizing the work and subjects in a meaningful and clear manner.
Work undertaken so far within and outside the project shows that the pertinent
issues relate to different levels of the relationship of trade regulation and
human rights. The following basic levels of the problem and questions may be
distinguished:
Constitutional theory: philosophical, cultural, and legal foundations of the
relationship between trade regulation and human rights, both in domestic
and in international law and as a matter of vertical interaction (multilayered
governance).
Institutional matters of jurisdiction and cooperation between different
international organizations and institutions, entailing cooperation both in
treaty-making and in dispute settlement.
The status of human rights in trade regulation, in particular in WTO dispute
settlement and law enforcement through authorized trade sanctions. How
much leeway should trade law provide to countries pursuing human rights
policies?
The status of trade regulation in human rights instruments and adjudication.
How can human rights take account of the principles and needs of the multi-
lateral trading system?
Trade and human rights responsibilities of the private sector.
Although these different levels are interactive, informing each other, it is useful
to address them separately and place the respective papers and comments of
this book in perspective. The book continues the conceptual debate initiated in
Linking Trade Regulation and Human Rights in International Law 3
the rst volume of the project.
3
In addition, it collects a number of case studies
which may feed back into theoretical work and insights. In the following
sections, we seek to offer a brief summary of the contributions and to place
them in perspective. The introduction concludes with a number of suggestions
for further work and specic action in interfacing trade regulation and the
protection and promotion of human rights.
ii. the search for bridging foundations
Before turning to the intricacies of international law, it is useful to address the
relationship of trade regulation and human rights in terms of constitutional
theory. The paper prepared by Ernst-Ulrich Petersmann (p. 29) builds upon the
experience of constitutionalism in Europe which, on the basis of protecting
human dignity, respects the indivisibility of political, social, and economic
rights and accords market freedoms the status of fundamental constitutional
rights. Petersmann calls for a stronger process of transnational constitutional-
ization, as multilevel governance requires multilevel constitutionalization. On
this view, citizens and private economic actors should be recognized as legal
subjects and empowered as such. The international system should shift from a
state-centred UN system to a citizen-centred, human rights based system.
Thereby the guarantee of market freedoms should go hand in hand with the
protection of human rights, as the rst isaccording to Petersmanna pre-
condition to resolve the grave challenges with respect to the social and economic
human rights the world is facing today. On the other hand, human rights need
to balance the exercise of market freedoms:
Multilevel constitutionalism helps better to understand, use, and strengthen the
functional interrelationships between international and domestic constitutional rules.
Just as democracies are not sustainable over time without constitutional democracy, so
can market economies not properly function without respect for human rights and
economic constitutions that protect non-discriminatory, consumer-driven competition
and social justice.
4
While constitutional rights serve more specic functions in the US tradition,
focused in particular on civil and political rights, human rights including
market freedoms provide an overall normative framework, based upon which
conicts of competing policy goals and rights can be addressed. The experience
of domestic and regional constitutional law within the European Union
illustrates the close interaction between economic and human rights, rst in the
case law of the European Court of Justice, later in the treaties themselves (see the
3
F M Abbott/C Breining-Kaufmann/T Cottier (eds), International Trade and Human Rights,
Foundations and Conceptual Issues, World Trade Forum, vol 5, University of Michigan Press
(forthcoming).
4
See E U Petersmann, Human Rights and International Trade Law: Dening and Connecting the
Two Fields in ch 1 of this volume.
Treaty establishing a Constitution for Europe). Domestic law, supported by the
European Convention on Human Rights, established a careful balance between
economic and non-economic rights.
Fundamental human rights guarantees in many ways support freedom of eco-
nomic players, protecting them from undue government intervention. They play
for example a crucial role in redressing asymmetries of market information. The
case study on the Hertel case by Thomas Cottier and Sangeeta Khorana (p. 245)
explores the relationship to unfair competition and highlights the importance of
free speech and freedom of information as a means to secure symmetry of mar-
ket information and thus the functioning of markets. In this light, freedom of
expression is not just a core human value, but also an important ingredient of an
efciently functioning market economy. Therefore, the authors claim that free-
dom of expression should be included in the rules of the trading system at least
to the extent that this is necessary in order to prevent and to remedy asymmetries
of information on export markets. On the other hand, freedom of expression
should also provide a basis for legitimate restrictions of economic activities. The
authors refer to the experience of the European Communities which shows that
human rights, sooner or later, enter the trade game, even though they were not
positively inscribed into the original, functionalist EEC treaty.
Christoph B Graber (p. 273), commenting on Cottier and Khoranas paper,
questions the economic approach chosen by the two authors. He agrees that an
economic analysis of law, such as the theory of information asymmetry, can
help legitimize the use of free speech. He nds the matter, however, to be more
complicated and in particular insists on the established, but difcult, distinction
between political and commercial speech with its varying standards of review
under constitutional law and the European Convention on Human Rights.
Domestic or regional institutions, in particular Constitutional Courts, the
European Court of Human Rights, and the ECJ, are well positioned to produce a
proper balance in individual cases, as they enjoy comprehensive jurisdiction over
all rights involved. It does not imply that these institutions always get the balance
right. The said case study relating to freedom of speech and unfair competition
shows that the balance sought by the Swiss Federal Court had to be remedied by
the European Court of Human Rights. Protection of human rights by the ECJ for
many years was subject to the criticism that it was merely functional in promot-
ing integration, rather than genuinely protecting human rights. But the creation
of institutions which have jurisdiction encompassing trade regulation and
human rights provides the necessary and essential foundation for rening and
balancing different rights. The same, of course, applies to law-making. In consti-
tutionalism, one and the same authority legislates and thus is in a position to
strike a balance. Interfacing trade regulation and human rights in a constitutional
way therefore essentially depends upon the institutional framework.
The crucial question is to what extent the constitutional model and experience
in domestic and European law can guide the level of international law, properly
speaking. Its structure remains very different from national constitutions and
legal orders. Institutionally, a great number of diverging actors with different
constitutional backgrounds, fragmentation of jurisdiction of international
organizations, decentralization of decision-making, and lack of effective adju-
dication and enforcement in most areas is a starting point all too well known.
On substance, human rights as well as principles of non-discriminationin trade law
are not of a higher rank than any other source of law as any inherent hierarchy
of international law sources (similar to the domestic divide between constitu-
tions and statutes or contracts) is lacking. All sources of law are of equal status,
except for the very limited concept of jus cogens, which is generally understood
to include some core human rights, though not trade law.
In the debate on linking human rights and trade in international law, and
given the starting point of the debate, it is, however, generally assumed that in
most cases human rights should trump market access and economic regulations
and work as a check on them. Trade obligations continue to be negotiated,
framed, and enforced as bilateral state-to-state contracts, whilst human rights
are construed as collective obligations that transcend the individual interests of
any two states and take on an almost constitutional value. However, given the
patchy and fragmented judicial enforcement of international law, the interplay
and checks-and-balances between the two elds in practice remains highly
exceptional. The role of human rights in international law is, at least at this
stage, different from that domestically or in regional integration. Transforming
international law into constitutional modes t to deal with the coordination of
diverging values therefore requires fundamental changes. These may be induced
over a longer period of time by changing attitudes and working towards multi-
layered governance, or be induced by radical institutional changes, such as the
creation of a common World Appeals Court.
The suggestions made by Petersmann indicate a long-term approach. He has no
illusion as to the possibility and feasibility of fundamental changes from a short-
term perspective. As a rst and more realistic step, however, he advocates a new
WTO Ministerial Declaration which would renew the commitment of WTO
Members to respect universal human rights, support the need for harnessing the
complementary functions of WTO rules and human rights, and require WTO
bodies to take into account human rights obligations as relevant legal context for
the interpretation of WTO rules. Petersmann further provides some concrete
examples as to how the democratic monitoring of the WTO negotiations could be
strengthened, for instance through institutionalizing the WTOs annual public
symposia and nancially supporting the parties of non-governmental organiza-
tion (NGO) representatives from LDCs. Furthermore, he calls for an explicit
WTO obligation committing domestic courts to interpret domestic laws in con-
formity with relevant WTO obligations and the possibility to agree bilaterally to
give domestic legal effect to certain precise WTO guarantees of freedom, non-
discrimination, rule of law, and social safeguards. As the European experience is
closer to this approach, Petersmann wonders whether an EU leadership for a new
transnational constitutionalism may be needed to further advocate these aims.
While these are important steps toward constitutionalizing international
trade regulation, they far from establish an overall constitutional structure
capable of responding to the constitutional aspirations set forth in Petersmanns
theory. It is important to understand that the main concern of his constitutional
theory is to demonstrate the compatibility of market rights, non-discrimination,
and human rights and the potential to bring them into harmony and coordina-
tion under the umbrella of a constitutional approach, as it has been gradually
emerging in European integration. Petersmann, however, struggles with the
current institutional infrastructure and architecture, which is still far away
from his ideal.
The critique formulated against Petersmanns constitutional theory and the
normative framework in which it is set stresses the fundamental differences
between domestic and regional law, on the one hand, and international law, on
the other. The critique offered by Philip Alstonreiterated orally at our third
conference in 2004is founded upon positive law, in particular the structure
of contemporary international law, and largely addresses problems distinct
from constitutional theory.
5
Although Alston fundamentally disagrees with
Petersmanns equating of fundamental (economic) freedoms with fundamental
(human) rights, his fears of merging human rights and trade, or the acquisition
of human rights by trade law, are expressed from the vantage point of the cur-
rent institutional and fragmented framework. From this perspective Alstons
concerns as to who has authority and jurisdiction to interpret and apply
broadly dened human rights standards are pertinent questions, as much as
the fear that human rights may be subjected to trade law, given the relatively
powerful and unique position of the WTO and its dispute settlement mecha-
nism. His critique, however, is situated on a different level of the problem and
topic. It squares and applies Petersmanns constitutional vision to the current
institutional setting and framework. Not surprisingly, therefore, the notorious
AlstonPetersmann debate reads like a dialogue des sourdes. The contenders, it
would seem, are not on the same page as they talk in different words and
worlds. At the same time, the debate does unearth fundamental questions as to
the relation between civil and political rights, on the one hand, and economic
and social rights, on the other. In particular, whilst Alston would, in the eco-
nomic sphere, limit the label of human rights to the economic and social rights
as they appear in UN instruments, Petersmann would expand those rights so as
to include fundamental economic freedoms enshrined in trade law.
5
See the Alston/Petersmann debate in the European Journal of International Law: E U Petersmann,
Time for a United Nations Global Compact for Integrating Human Rights into the Law of
Worldwide Organizations: Lessons from European Integration, European Journal of International
Law, vol 13 no 3 (2002) 621650; P Alston, Resisting the Merger and Acquisition of Human Rights
by Trade Law: A Reply to Petersmann, European Journal of International Law, vol 13 no 4 (2002)
815844; E U Petersmann, Taking Human Dignity, Poverty and Empowerment of Individuals More
Seriously, Rejoinder to Alston, in European Journal of International Law, vol 13 no 4 (2002)
845851.
The fear of merger and acquisition of human rights by the trading system
must, therefore, be framed within the contemporary, lopsided setting of inter-
national law tilted in favour of trade rules and their harder law enforcement
tools and mechanisms within the WTO. To what extent should jurisdiction to
interpret and apply human rights be reserved to its proper institutions, in
particular the UN Human Rights Commission or the International Court of
Justice? And to what extent should other bodies, such as WTO panels or
Appellate Body, be able not only to refer to, but also to construe, human rights?
Those are fundamental questions of jurisdiction and allocation of powers that
this volume attempts to address.
iii. issues of jurisdiction and agency cooperation
Jurisdiction and cooperation therefore emerge as the key component of the trade
and human rights debate. Not surprisingly, it shares this dimension with other
linkage problems. Several contributions to this book deal with the problem of
jurisdiction. The problem arises both in law-making and in dispute settlement.
In law-making, international organizations today operate on the basis of a
functional division of labour. Human rights values therefore are not taken into
account in trade-related institutions unless institutional arrangements are made
in order to give them a proper voice, and vice versa. While institutions may be
set up differently and operate side-by-side, real-life problems do not respect
jurisdictional boundaries, and law-making in different institutions inherently
spills over into other regulatory elds. In todays interdependent world, any
attempt to set up hermetically sealed compartments of international law is
an illusion. Law-making therefore needs to entail mutual information and
interaction between different fora and organizations.
The case study on the World Health Organization Tobacco Convention
(FCTC) by Allyn Taylor (p. 322) and the respective comment by Werner Meng
(p. 334), for example, show current deciencies in the negotiating process.
Allyn Taylor emphasizes the tensions that an open trading system might bring
about with respect to health issues and the need for closer cooperation between
the different institutions. During the negotiations, however, the relationship
between the FCTC and trade agreements was very contentious and the question
of conict between them remained unresolved. In addition, Taylor expresses
astonishment that human rights legal approaches were seldom invoked during
the negotiations, although human rights and protection of public health are
closely intertwined and the recourse to the language of rights would have been
helpful to defend health interests. She attributes this deciency to the fact that
most negotiators were part of the public health community and therefore not
familiar with human rights approaches, and that the reference to human rights-
based approaches would not have been widely accepted, particularly within
developing countries.
In this context, Werner Meng raises the question whether human rights
claims were too unclear, or disputed, to have been invoked instead of readily
stated sovereign rights. Moreover, Meng explores the relationship between the
WTO and the FCTC. Even if at rst glance the agreements do not hamper each
other, future conicts are conceivable. According to Meng, such conicts cannot
be resolved simply by referring to the Vienna Convention. Rather cooperation
and coordination of the involved institutions is indispensable in the law-making
process, and negotiators should be vested with different complementary exper-
tise. Considerations of human rights in law-making and negotiations are up to
Members and are subject to the consensus principle. States must be convinced
to discuss and regulate linkages whenever they negotiate new treaties. Failing to
do so (as was effectively the case in the WHO Tobacco Convention and the
Biosafety Protocol) shifts the burden to adjudicators, a burden that in the
current constellation may turn out to be too demanding.
Following suit, the papers by Victor Mosoti (p. 165) and the respective
comments by Laurence Helfer, Marsha Echols, and Caroline Dommen address
the problem of cooperation and interaction between different international
organizations. They submit recommendations for enhanced interaction and
participation. Victor Mosoti presents some examples of already existing inter-
institutional collaboration, but identies many deciencies. He asks, for example,
whether the International Court of Justice (ICJ) should be vested with an over-
sight role over the international legal order or whether the strong role of the
WTO could be used to further develop cooperation rules, acknowledging, how-
ever, that the latter may raise questions of democratic legitimacy.
Laurence Helfer (p. 180) examines the eld of international intellectual prop-
erty (IP) protection, an area where a proliferation of jurisdictions has taken
place in recent years. He explains why IP law-making has broken out of
the established international IP fora, such as World Intellectual Property
Organization (WIPO) and the WTO, and has moved into a broad and growing
array of other international venues in environmental law, human rights, and
public health. According to Helfer, the proliferation causes delays, inefcien-
cies, and inconsistent norms; on the other hand, it may ultimately lead to better
outcomes, while it is not clear yet whether the benets of proliferation will
outweigh its costs.
Marsha Echols (p. 192) introduces the Codex Alimentarius as an example of
successful cooperation and interaction; more particularly, cooperation
between the specialized UN agencies Food and Agriculture Organization
(FAO) and WHO. She identies the Codex as one of the most transparent inter-
national organizations, even though questions remain regarding the participa-
tion of developing countries and cooperation with other international
institutions such as the Convention on Biological Diversity. She highlights the
interrelation between the Codex and the WTO, as the norms of the Codex
gained stature through their incorporation in the WTO agreements on sanitary
and phytosanitary (SPS) measures and technical barriers to trade (TBT). This
has forced the Codex to adjust its rule-making procedures so as to increase their
efciency and legitimacy.
Caroline Dommens comment (p. 199), nally, makes suggestions on how the
role and inuence at the WTO of internationally recognized human rights
could be strengthened. She emphasizes that the regulation of trade and the pro-
motion of human rights share the same basic objectives so that there is no need
for a separate human rights statement within the WTO. Taking human rights
seriously in trade negotiations would require broader participation of different
actors and assessments of the potential impact of global trade policies on the
enjoyment of human rights. Such assessments should take place prior to mak-
ing commitments and the needs of the poorest and most vulnerable should be
centre stage. Dommen calls for a more active role for the United Nations High
Commissioner for Human Rights in preventing states from agreeing to binding
commitments that deprive them of taking human rights relevant measures. She
calls for more transparent trade outcomes by making risks and benets of trade
liberalization more explicit.
The idea of assessing the impact of trade on human rights is an interesting
proposition, albeit suffering from the fact that relevant standards and benchmarks
tend to be vague and thus allow for a wide range of different views in the legisla-
tive process. It is, however, clear that human rights impact assessments could lead
to a rethinking and reshaping of existing trade rules which, in turn, could result, in
some circumstances, in taking a step back from trade liberalization.
At the same time, the case studies in this volume illustrate that the problem of
coordination is deeper rooted. It starts with the lack of adequate domestic
policy coordination within governments. Problems faced on the international
level between international organizations often merely reect the fact that gov-
ernments are equally fragmented and domestic policy making does not take
into account trade and human rights concerns to the full extent. Ministries and
departments are competing in the pursuit of their policy briefs, and supported
by different constituencies in society. Efforts therefore are equally required in
domestic law-making procedures. International law, as it currently stands,
completely lacks the tools to secure domestic policy coordination. Whether this
happens is entirely left to national sovereignty and structures of government.
The concept of good governance and governance in general, however, may
provide an interesting starting point in search of minimum domestic procedural
requirements in internationally relevant legislation and policy making. It is here
that WTO law and its many prescriptive procedural rules, ranging from trans-
parency to domestic court proceedings, could offer the basis for innovative
internationally dened institutional requirements or guidelines with which
members of the international community would need to comply domestically
prior to taking positions and actions in international organizations.
Similar problems of coordination arise in the enforcement of international
trade and human rights law. Given the prominent and currently unique role of
the WTO in dispute settlement, international organizations representing
human rights should be in a position to provide advice and input to WTO
panels. Despite increasing forms of cooperation between international
organizations and the granting of observer status, such interaction is far from
developed as has been shown in the above-mentioned case studies.
One of the problems is that intergovernmental organizations are not well
equipped to provide feedback or advice. Secretariats regularly do not have
jurisdiction to voice an opinion representing the organization as the member-
ship often has different views and will not be able to agree on a common posi-
tion. Absent internal procedures to dene views and positions on the level of the
Secretariat or an Executive Board, practical interaction of different interna-
tional organizations is difcult to achieve both in the eld of law-making and
law-enforcement. Similarly, procedures to dene the appropriate interpretation
and meaning of a text are required. Organizations should be prepared to provide
authoritative interpretation and advice relating to a particular dispute within a
reasonable period of time. This is of particular importance in the eld of broadly
textured human rights. It would seem that in that sector these institutions are not
currently in place, as much as in other organizations, such as the WIPO. It is not
clear whether general comments would offer sufcient guidance in a specic dis-
pute. Whether or not human rights can and should be taken into account depends
on whether more effective cooperation between institutions can be found in their
respective jurisdictions. In practical terms, this requires strengthening the central
bodies of an organization and allowing them to have a voice in advising other
organizations.
Overall, it is thus a matter of bringing about appropriate substancestructure
pairings. Both in legislation and adjudication, consideration of trade-related
norms outside the jurisdiction of the WTO not only depends on the interaction
of substantive law, discussed shortly, but also on appropriate mechanisms of
mutual consultation and information in pursuit of balanced and fully informed
decisions.
iv. the status of human rights in wto law
From a practical point of view, and under current structures of international
law, interfacing trade and human rights primarily boils down to the status of
human rights in WTO law. It forms the core of this book and is of practical
interest. To what extent can and should a Member of the WTO be allowed to
take into account human rights policies in shaping foreign trade relations?
To what extent should a panel and the Appellate Body take into account
considerations relating to human rights, despite the fact that the multilateral
trade system, as it stands, does not explicitly relate to the protection of human
rights? The contributions by Christine Breining-Kaufmann and Joost
Pauwelyn, as well as the case studies relating to conict diamonds by Krista
Nadakavukaren Schefer, the right to health by Frederick M Abbott, and the
ECIndia Generalised System of Preferences (GSP) dispute by Lorand Bartels,
together with the respective comments, address these issues.
Christine Breining-Kaufmann (p. 95) depicts the differences between trade reg-
ulation and human rights including their distinct traditions. She emphasizes
that although human rights and trade law share a common starting point, they
developed in different ways. She reects on the different nature of trade and
human rights obligations and identies fundamental conceptual differences
with regard to the notions of non-discrimination and equality. While human
rights institutions have offensively reacted to the appearance of new actors and
integrated them by granting rights and corresponding obligations to individu-
als and a special status to NGOs, international trade law did not accommodate
the emergence of new actors in legal terms. Breining further explores the poten-
tial portals in WTO law for human rights concerns. She refers to the Appellate
Body, which has recognized the importance of interpreting WTO law according
to the rules of Article 31 of the Vienna Convention on the Law of Treaties; a
method which is of particular importance in the context of exceptions such as
Article XX of GATT and also in interpreting the term like product in the
various provisions of the GATT and the General Agreement on Trade in
Services (GATS). Breining nevertheless identies several questions, such as
which human rights are universally accepted and could be considered in the
context of WTO law? and who should develop the necessary benchmarks?
One of the basic questions in this respect relates to the scope that WTO
Members enjoy or should enjoy for taking account of human rights in trade
policy formulation and administration. The like product analysis in dening
whether two products are similar enough so that there can be trade discrimina-
tion in violation of WTO rules offers the potential to take account of human
rights concerns as such concerns may be reected in different process and
production methods (PPMs), thereby potentially making, for example, foot-
balls stitched with child labour unlike other footballs. We submit that WTO
law may be induced gradually to leave a rigid interpretation behind. Exceptions
related to public morals provide another portal, albeit primarily focused on
human rights compliance in the importing country and possibly ethical or
moral concerns in the importing country related to human rights practices
abroad.
As in other areas, recognition of PPMs entails market access restrictions. Not
surprisingly, developing countries oppose such modications as they may be
adversely affected. For similar reasons, reections offered by Qingjiang Kong
(p. 232) advocate a clear separation of trade and human rights. In his view
human rights and trade law approaches cannot be simultaneously utilized as
the rst is based on natural and the second on positive law. On this view, free
trade in itself has to be understood as a human right, a right which is violated
by protectionism. And the argument that a human rights approach to trade
would improve Chinas human rights conditions is myopic and self-defeating.
It endangers the market-liberal vision, a vision that contributes to the protec-
tion of human rights. For Kong, a broader human rights approach would do
nothing but remind people of bitter memories of superpower hegemony.
To adopt a human rights approach in the WTO, rst a consensus among mem-
bers would have to be reached.
To overcome such objections, recognition of PPMs therefore should, as in
other areas, be accompanied by anking policies, such as transfer of resources,
know-how, and thus investment. Exceptions to GATT can be positively justi-
ed in cases of trade restrictions on goods made by prison labour (under GATT
Art XX[e]). Likewise, and based upon the obligation on all states to respect
jus cogens and to take positive steps to stop its violation,
6
PPMs should be
recognized as a ground for product differentiation where fundamental rights,
in particular the prohibition of forced labour (slavery in all its forms), are
concerned.
7
A further potential portal could be identied in the eld of
labelling. Again, the law is not settled, but we suggest that marking require-
ments or labels seeking compliance with human rights standards, especially
when voluntary and linked to universally recognized standards, can be an
important and legitimate tool to bring about human rights assessment in trade
policy.
Another portal exists in the eld of GSP. In light of the Appellate Body report
on Conditions for Granting of Tariff Preferences to Developing Countries,
8
an
argument can be brought forward that Members are entitled to condition their
trade preferences for developing countries on compliance with universally rec-
ognized human rights. The case study submitted by Lorand Bartels (p. 463)
conrms this nding with the caveat that principles of non-discrimination (MFN)
are respected. He rst outlines the different types of conditionalities identied
in the GSP programmes of the EC and the US. He then discusses the EC GSP
dispute and its far-reaching consequences, emphasizing that the continuing
legality of non-trade conditions was not thoroughly addressed in the case. The
Appellate Body did, however, create three criteria to assess the legality of GSP
conditions. For Bartels, a move from negative to positive conditionalities is
probable, as well as a reduction in the reasons that can justify a differentiation
between developing countries. However, if generously understood, positive
6
See Art 41 of the International Law Commission (ILC) Articles on Responsibility of States for
Internationally Wrongful Acts (1. States shall cooperate to bring to an end through lawful means
any serious breach [of a peremptory norm of general international law] . . . 2. No State shall recog-
nize as lawful a situation created by a serious breach [of a peremptory norm of general international
law] . . . nor render aid or assistance in maintaining that situation (Report of the ILC on the work of
its Fifty-third session, Ofcial Records of the General Assembly, Fifty-sixth session, Supplement No
10 (A/56/10), ch IV.E.1.
7
In 2000, for example, the ILO recommended that ILO members review, in the light of the con-
clusions of the Commission of Inquiry [which had found the serious violations of the Forced Labour
Convention], the relations that they may have with the member State concerned [Myanmar] and
take appropriate measures to ensure that the said Member cannot take advantage of such relations
to perpetuate or extend the system of forced or compulsory labor referred to by the Commission
of Inquiry, and to contribute as far as possible to the implementation of its recommendations
made (Resolution of the International Labour Conference, 88th session (2000), available at
http://www.ilo.org/public/english/standards/relm/ilc/ilc88/resolutions.htm#II).
8
WTO Appellate Body Report, European CommunitiesConditions for the Granting of Tariff
Preferences to Developing Countries, WT/DS246/R (adopted on 20 April 2004).
conditions such as the labour standards in the EC GSP scheme might have a
good chance to survive.
Jane Bradley (p. 504) endorses Bartels comments by examining the way in
which the GSP panel applied the Vienna Convention rules of treaty interpreta-
tion. She found that the panels textual analysis of the Enabling Clause, which
permits GSP schemes, was not in the foreground as more importance was given
to the context and the preparatory work, especially that at the UN Conference
on Trade and Development (UNCTAD). Such reference to outside (in this case,
UNCTAD) material has until now been quite contentious. Bradley wonders
whether the GSP panel report signals a shift toward a more subjective method
of interpretation, away from the traditional textual approach, especially in
future trade and cases.
In their comment, Gregory Shaffer and Yvonne Apea (p. 488) highlight the
need to always keep in mind the context of particular events. They stress that,
originally, the granting of tariff preferences was an instrument of colonizing
countries to extend their territories to their colonies. Thus, even in modern
times, the granting of preferences is often used or misused for political goals. In
their view, the WTO GSP system should try to avoid such practices by bringing
in strong, non-discriminatory criteria. After a critical analysis of the EC GSP
dispute and an examination of different alternatives, they conclude that
the Appellate Body had the possibility to set stronger criteria which would have
made future GSP procedures more calculable and less arbitrary at the expense
developing countries. So, mechanisms that ensure greater inclusion of develop-
ing countries voices in WTO interpretative debates should be supported.
Finally, the waiver of WTO obligations under Article IX:3 of the Marrakesh
Agreement Establishing the WTO provides another portal for human rights.
For example, a waiver was granted to WTO Members who are participants in
the Kimberley Process combating conict diamonds (decision taken by the
General Council of the WTO on 15 May 2003). With the aim of preventing fur-
ther gross human rights violations, the waiver allows certain WTO Members to
discriminate in their treatment of imports and exports of rough diamonds on the
basis of whether or not a country participates in, or complies with, the rules under
the Kimberley Scheme. The case study prepared by Krista Nadakavukaren Schefer
(p. 391) describes the process and waiver in detail. It raises the most interesting
question whether such a waiver was after all necessary to accommodate the
scheme. According to the Nadakavukaren, the waiver could have a signicant
impact on the way the WTO addresses the trade and human rights interface. She
comes to the conclusion that a waiver was not necessary in the case of a ban on
conict diamonds and that recourse to the WTO waiver mechanism should be
avoided, as it undermines better alternatives to deal with trade and human
rights issues. Instead, she suggests, there should have been no reference to WTO
obligations at all in the Kimberley Scheme, nor should the participants have
applied to the WTO for a waiver. Instead, they should have waited to see if a
case would arise within the WTO. This would have been the best policy because
a direct statement by the WTO dispute settlement bodies would have been
necessary in order to get more transparency and certainty about the compati-
bility of existing WTO rules with human rights.
Kevin Gray (p. 451) counters Nadakavukarens arguments by stating that, in
his view, the waiver was the correct decision to react to a humanitarian crisis
such as the one presented by conict diamonds, owing to the urgent and tem-
porary character of the situation. According to him, the waiver provides more
legal certainty than a potential panels interpretation of GATT exceptions. He
examines how the panel could have decided such a case and concludes that the
result is difcult to predict; this is due to the fact that the Kimberley Process is
quite a particular case in which human rights abuses are situational (eg, were the
proceeds of sale used by rebels to sponsor internal conict?) rather than prod-
uct related. Therefore, according to Gray, the Kimberley case might be the
wrong case to demonstrate that the use of waivers is problematic in interna-
tional law because the fact that a waiver was secured may presuppose that the
waived measure would otherwise conict with WTO law.
The same issue arises under the TRIPS waiver for the exportation of essential
drugs under compulsory licensing. In practice, concerns relating to the right to
human health were taken into account by waiving the obligation to limit com-
pulsory licensing to predominantly domestic supply under TRIPS Article 31:f.
It is, however, possible to construe the TRIPS Agreement in a manner allowing
Members to undertake such exportations under the conditions of TRIPS Article
31:g, and taking into account the goals stated in Article 8 of the Agreement. The
paper by Frederick Abbott (p. 279) on the rule of reason and the right to health
offers inspiring perspectives on how to put competition law rules to work for
the betterment of market supplies. It shows that Members of the WTO are enti-
tled to adopt appropriate competition rules against anti-competitive behaviour
within the bounds of TRIPS Article 41. It is, however, up to national govern-
ments to introduce such rules. Furthermore, Abbott looks at the manner in
which human rights may affect the application of the TRIPS Agreement. While
the rights to life and health are well recognized in human rights law, the Doha
Declaration has reinforced the right to protect public health in the TRIPS
context, and the Appellate Body has recognized that considerations relating to
public health may play an important role in the application of WTO rules.
Sisule Musungu (p. 301) elaborates further on this issue. He examines how the
different conicting interests might best be balanced by analysing in depth the
decision of the South African Constitutional Court in the Nevirapine case.
While he concludes that the strengthening of patent protection under TRIPS
had the effect of limiting the enjoyment of the right to health, he illustrates that
TRIPS Articles 8 and 40 contemplate the use of competition policy as means of
achieving an appropriate balance in the patent system.
In a related case study, Shelley Edwardson (p. 382) examines the rules of the
TRIPS Agreement regarding the plant variety protection and its compatibility
with the right to food. She also comes to the conclusion that the TRIPS
Agreement allows for considerable exibility in its implementation. While she
considers that monopoly rights extended through patenting work almost exclu-
sively for the benet of commercial plant breeders, the TRIPS allows states to
design sui generis systems of plant variety protection that balance the inter-
ests, rights, and obligations of all stakeholders involved.
As seen before, comments made by Gray emphasize the exceptional constel-
lation of the Kimberley process and the need to bring about political settlement
and legal security. Given the context of political crisis over essential drugs, the
same argument applies to the waiver under TRIPS, which in fact was an import-
ant political precondition for the success of the Doha Ministerial meeting and
the launch of the Development Agenda. Granting a waiver, on the one hand, recog-
nizes the importance of human rights concerns. On the other hand, it concedes
that the principles and norms of WTO law are not in a position to cope with
such constellations other than by recourse to exceptional circumstances.
The question remains as to what extent Members should be in a position to act
unilaterally in such circumstances, and to leave the matter to be tested in dis-
pute settlement. We agree that this is a viable and important option, although
any adjudicator must then be careful not to step beyond what parties agreed to
in both spheres of international law. From a point of view of integrating trade
and human rights, it is important to seek to integrate the concern into WTO law
itself and allow for accommodation by means of treaty interpretation.
In linking trade and environment for example, most progress was achieved
through the means of dispute settlement and interpretation, while the process of
negotiation stalled. This is due to the fact that complex problems of interfacing
different areas of the law are often more suitably undertaken on the basis of the
facts of a specic case than in general and abstract terms. There is no reason to
believe that this is different in the eld of human rights.
An instrument adopted by Members conrming compatibility of trade and
human rights may assist the process of interpretation, and therefore should be
envisaged, as suggested by Professor Petersmann (even though it may have the
same drawback as the above-discussed waivers, ie, the adoption of a human
rights declaration could somehow imply that without such declaration human
rights cannot enter the WTO).
While WTO law offers all of the above-discussed portals which may be
expanded over time in case law, it is important to note that WTO law does not
prescribe in any form consideration of human rights standards in the process of
treaty making. One of the difculties, in this respect, is that developing coun-
tries often mistrust the trading system as a whole. Prabhash Ranjans paper
(p. 311), for example, reects a widespread view on the subject matter in devel-
oping countries. He goes into three practical examples of conict between
international trade and human rights law that India has to deal with (exempli-
fying the situation of developing countries). Ranjan emphasizes the conicts
that India is facing with respect to TRIPS and the right to health, in the realm of
trade facilitation, and with respect to Regional Trade Agreements (RTAs)
which contain WTO plus requirements (eg, regarding the protection of plant
variety). With respect to the TRIPS Agreement, Ranjan denies, on human rights
grounds, the legitimacy of patent protection for pharmaceutical products in
developing countries. He identies a clear conict between patent law and the
right to health, as patent protection increases prices for drugs. Ranjan comes
to the general conclusion that rules of international trade are ab initio not fair,
and that trade rules are often implemented in a dishonest way and misinter-
preted to the advantage of the industrialized countries. The conict between
trade law and human rights could, according to the author, be best addressed by
negotiating fair rules and honestly implementing them.
Even if Ranjan points at some relevant deciencies, the situation is more
complex than it appears in his paper. For example, lack of patent protection not
only affects conditions of competition, but is likely to limit research in areas of
particular interest to developing countries. The impact of human rights should,
therefore, play out in a much more nuanced manner. The process to bring about
a waiver for Article 31:g TRIPS Agreement is a very good example illustrating
the complexity, but also the possibility, of reaching agreement on the interaction
between IPRs and human rights concerns. Current efforts in academia and
WIPO to prepare enhanced protection for traditional knowledge, by recourse
to unfair competition, by reshaping patent laws, or by creating new rights (tra-
ditional intellectual property rights) for assignable information are important
efforts to bring about greater coherence between IPRs and human rights. These
efforts are likely to be more successful than advocating the abolishment of a key
provision of the TRIPS Agreement.
Trade negotiations relating to social and economic rights will add a new
dimension. Human rights concerns in the eld of social and economic
rights should be addressed not only by negative prohibitions of, for example,
non-discrimination, but also by way and means of positive integration and
afrmative action as they are already in regional and some UN human rights
instruments. Whether or not such action is taken within the WTO or elsewhere
is a matter of secondary importance. What is important is that such action is
well coordinated. Christine Breining-Kaufmann (p. 341) makes the point in her
paper on the right to food. She reminds the reader that food is a most essential
good and plays an important role in each societys culture and policies. The
right to food is embedded in several international human rights instruments,
and Breining identies food as a cultural statement, a biological necessity, and
also commerce, since technology has increased productivity and thus made
trade in food products possible. From this complex vantage point, Breining
examines the current legal framework of trade in agriculture and assesses how
the WTO agreements on agriculture and SPS measures deal with food security
and how the TRIPS Agreement addresses traditional knowledge. She thus con-
fronts the current trade regime with the right to food as enshrined in several
international human rights instruments. Breining-Kaufmann discovers poten-
tial portals in the trade regime which allow for a closer inclusion of the right to
food, such as the reference to non-trade concerns and multifunctionality or
special and differential treatment of developing countries. She urges negotia-
tors, when further shaping new rules, to take account of the specic character-
istics of agriculture and of the need for afrmative action in order to balance the
negative effects of trade faced by rural and urban poor.
Likewise the HIVAIDS problem by no means can be solved on the basis of
trade rules alone. It requires a package of measures, of which trade rules is only a
small component. Finance, education, and distribution must be at the forefront.
While afrmative action has been limited to States and aid programmes of
international organizations, the human rights dimension triggers the question
as to what extent afrmative action should become an obligation of the inter-
national community under international agreements and law. This dimension
has hardly been drawn upon. It opens interesting prospects also for trade nego-
tiations, as afrmative action may broaden the scope for formal negotiations
and facilitate mutual accommodation of interests.
From a legal and lawyers perspective, the most important aspect relates to
the status of human rights in dispute settlement. Joost Pauwelyn (p. 205) offers
a detailed analysis of potential portals for human rights considerations the
foundations of which are found in legal instruments outside the law of the
WTO. On the basis of a more general theory between WTO and public inter-
national law, he offers the possibility to accept far-reaching implications of
human rights in terms of interpreting and, at times, restricting trade rules in the
pursuit of non-economic goals. His view emphasizes the need to bring about
enhanced legitimacy and further integration, while respecting the limited juris-
diction of the WTO. He makes a distinction between panel jurisdiction, limited
to WTO claims, and the law that panels can apply in their examination of WTO
claims, including human rights as long as they are binding on both parties.
Other authors submit a much more narrow view on the outside law that panels
can refer to and apply in WTO dispute settlement.
9
While Pauwelyns approach
may, at rst sight, spur further fear amongst human rights lawyers of a merger
and acquisition by trade law, the alternative of WTO panels completely disre-
garding human rights law is worse. Pauwelyn concludes that the former is by
far the lesser evil especially if existing procedures are made available for the
human rights community to assist WTO adjudicators in the interpretation of
human rights texts, be it through expert advice and interpretative guidelines
from UN human rights bodies (the way panels in the past have sought the
advice of the WHO, Codex, and WIPO) or through the submission of amicus
curiae briefs.
As noted earlier, the status of human rights in WTO law cannot be dissoci-
ated from procedural structures. Again it is a matter of nding appropriate
structuresubstance pairings in future developments.
9
See G Marceau, WTO Dispute Settlement and Human Rights, European Journal of
International Law, vol 13 no 3 (2002) 753814.
Maria Green (p. 236) elaborates on these thoughts from a human rights
perspective. She identies two paradigms on how to inject human rights in trade
dispute settlement institutions. On the one hand, human rights advocates want
to use trade law in an offensive way to enforce compliance with human rights,
because trade law enforcement works well. Others promote a defensive use
of human rights where human rights temper or mitigate the force of trade
liberalization rules. According to Green, whenever the WTO dispute settlement
bodies apply human rights, they should be governed by the interpretation of
UN human rights bodies. Green contests that the human rights standards
inclusively the economic, social, and cultural rightsare too vague for
application.
v. the status of wto law in human rights
treaties and adjudication
Interestingly, none of the papers addresses this side of the coin. As attention is
paid to the status of human rights in WTO law, it is submitted that the same
question needs to be addressed the other way round. Following the debate, also
reected in a number of papers, the main concern is with limiting the impact of
unfettered trade rules. There is little interest in exploring the impact of principles
of non-discrimination and market access on human rights standards and inter-
pretation. The documents prepared by the UN Human Rights Commissioner
and working groups are, so to speak, one-way papers. They dwell upon the
importance of human rights concerns but fail to address the impact of trade
rules in interpreting and shaping human rights. More work clearly is required
here, given the very close economic links between the two elds. It is not useful
to emphasize that human rights and trade law are fundamentally different.
Unlike most of the political and civil rights, social and economic rights are not
self-executing and require implementation. Such implementation, as much as in
environmental law, will often take place by means of economic law and will be
supported by trade policy measures. While human rights clearly are predomi-
nant in terms of setting goals of aspiration, economic law provides important
tools. These tools need to be embedded within the principles of international
economic law in order to be effective and successful. Recognizing market
rights, as suggested by Professor Petersmann, may therefore be a means to
bridge the principles of international economic law with human rights
concerns. It is here that international law can benet from the experience of
constitutional law and theory.
For example, it is important in this very context to explore in greater detail
the relationship of patent protection, compulsory licensing, and access to
drugs. While patent laws are instrumental and utilitarian, they nevertheless
should be considered and taken into account in the process of specifying social
and economic rights. Similarly, basic principles of international agricultural
policies need to be considered in shaping the right to food and other rights of
urban and rural populations. To the utmost extent possible, these rights should
be construed in a manner that takes account of the fundamentals of the multi-
lateral trading system. We are still in a mode of coexistence of two largely differ-
ent worlds. And this needs to change, too. We need a dialogue in both directions.
vi. the responsibility of private operators
Christine Breining-Kaufmanns paper on The Legal Matrix of Human Rights
and Trade Law (p. 95) addresses also the role and emerging responsibility of
private actors in the pursuit of human rights in trade relations. Breining
explores the potential of national liability rules and the impact of the US Alien
Tort Statute including case law. She claims that national laws address the
responsibility of multinational enterprises (MNEs) in different ways, and that
tort law is becoming the most important tool to hold MNEs accountable.
Thereby private law procedures are applied for claims which in their essence are
based on international human rights law. As traditional concepts of public and
private law as well as national and international law cannot accommodate
according to Breiningthese developments, a transnational approach is
needed. A rst step would be to qualify the concept of accepting human rights
violations as basis for a tort claim as a general principle of international law.
Carlos Vazquez (p. 137) describes the evolution of the Alien Tort Statute and
discusses in depth the US Supreme Court Decision in Sosa v Alvarez-Machain
and its implications for human rights claims against private corporations. He
explains why the decision was not the beginning of the end for the use of the
Alien Tort Statute. It just claried and limited the nature of respective claims.
Karin Lucke (p. 148) further elaborates on the topic of direct private obliga-
tions. She describes how the UN human rights system, most recently through
the controversial Draft UN Norms on the Responsibilities of Transnational
Corporations, has taken up the challenges posed by an increasingly complex
international trade regime. Because of their powerful role in the globalized
world economy, in the centre of the current debate are the responsibilities of
businesses. While states have the primary obligation to ensure the protection
and fullment of human rights, it can, however, be observed that treaties and
monitoring bodies are increasingly referring to the responsibilities of private
actors. This is due to the fact that the responsibility of states vis--vis private
sector activities is often affected by a lack of capacity or willingness on behalf
of states. Lucke explains how in this context the Norms on the Responsibilities
of Transnational Corporations and Other Business Enterprises with Regard to
Human Rights have been developed, and until now have (only) been approved
by the UN Sub-Commission of Human Rights. According to Lucke, this rst
non-voluntary initiative may serve as a useful benchmark against which
national legislation could be evaluated and monitored.
Carlos Vazquez, however, emphasizes the fact that direct international
regulations on private entities as contained in the UN Norms would represent a
signicant loss of power of states. Therefore, attempts to expand the number of
direct obligations on companies are likely to face resistance. He assumes that
the international regulation of corporations is likely to stay indirect.
As indicated by all three authorsBreining, Lucke, and Vasquezthe efforts
to bring about enhanced implementation of international obligations by private
actors are all at an infant stage. Given the increased power and inuence of non-
state actors, be they global companies or global NGOs, the traditional state
matrix of international law needs to be adapted to provide, for example, not
only rights of multinational corporations (as is the case under NAFTA and bilat-
eral investment treaties) but also obligations (both economic and social). Such
private rights and obligations must be protected primarily at a domestic level,
with international law in a supporting and guiding role. When it comes to pro-
duction standards, for example, companies are much better placed to imple-
ment them on a contractual basis than governments. Fair trade schemes thus
provide an important contribution in linking trade and human rights. The ques-
tion remains to what extent responsibility and liability of private operators for
human rights violations can be achieved on the basis of a state centred system
of international law. It would seem that we are reaching the limits and that full
responsibility and entitlement will only be achievable under a new and consti-
tutional approach in regulating international trade and business relations.
While it is advisable to enhance responsibility of international private actors,
this also implies that their rights of action need to be developed. Again we touch
upon constitutional theory, in the long run.
vii. prospects and recommendations
The project of the American Society of International Law (ASIL) was launched
to make specic policy recommendations and proposals for further action in
linking trade and human rights. All the trade and linkage issues imply difcult
questions of interfacing different areas and traditions of fragmented interna-
tional law. Partly, they can be solved on the basis of existing foundations; partly,
they point towards a new paradigm. This is particularly true for linking trade
and human rights. The problems encountered in the project and the contribu-
tions to the books published point to the need of a new framework. Whether or
not this is called a constitutional model or a further development of embedded
liberalism is not of importance. The model must be able to reconcile different
and diverging values, and it was shown elsewhere that this requires balancing
market access and equally legitimate non-economic goals within WTO law.
Human rights embody such goals, both of economic and non-economic
value, and a legitimate international system needs to be able to cope with this.
The impact will be in negotiations, as well as adjudication. The contributions
to this book show that the linkage of trade and human rights is not merely a
matter for the WTO. It is a matter affecting other organizations and instru-
ments. Foremost, it is not limited to international law but also entails domestic
and foreign policies of States or bodies of regional integration. Human rights
and trade policies not only operate in different areas, but also on different lev-
els of governance. A new framework therefore needs to be able to address the
interaction of different regulatory levels and bring about greater coherence.
International law evolves over long periods of time. Specic suggestions
cannot directly seek to apply constitutional theory. At this point, there are no
central institutions able effectively to address human rights and trade in an
integrated manner. However, efforts can build upon insights, step by step, and
assure an overall direction. The following assumptions and recommendations
are thus submitted for discussion.
International trade regulation serves the purpose of enhancing human
welfare. By means of free enterprise and competition, it aims at a more efcient
allocation of the worlds resources. Though beneting corporations, its ultimate
aim is to serve consumers. Operationally, trade law regulates market access for
goods and services. Economic and commercial interests and economic theory
and policy inform market access negotiations and regulations in the rst place.
Human rights, in particular social and economic rights, reect and express
standards of human welfare aspired after by states and the international
community. They provide benchmarks by which the output legitimacy of
the international trading systemincreasing human welfareis ultimately
assessed. In this sense, trade is mostly a means to a higher end dened in human
rights terms. Conversely, human rights are important for the functioning of the
multilateral trading system. This is true both for civil and political rights
(eg, free speech and a working democracy) as well as for social and economic
rights (eg, rights to food and health, and the basic safety nets of the welfare state).
Political and civil rights provide an essential framework for domestic policy
formulation. Social and economic rights provide a safety net. They allow coun-
tries to engage in trade liberalization and structural adjustment. The welfare
state, to some extent, is a prerequisite for open market economies in democracy.
The lack of it renders trade liberalization difcult or unfair, aggravating potential
violations of social and economic rights of citizens.
Experience shows that the international trading system and its process of
progressive liberalization basically and overall support welfare goals expressed
in terms of human rights. The fundamental principles of trade regulation,
in particular non-discrimination, protection of property rights, progressive
liberalization of trade in goods and services, and transparency, are equally
important and legitimate foundations of the international system.
Trade regulation may also conict with human rights in specic constella-
tions and sectors. Such tensions are matters of controversy and political dispute
within societies and internationally.
In policy formulation and trade negotiations, human rights should be taken
into account in dening and rening goals of regulations. Human rights values
in the eld of social and economic rights to a large extent depend upon
transformation and implementation by means of economic policy and eco-
nomic law. Proposals and solutions should be subject to human rights impact
assessment both nationally and internationally.
For example, in the eld of IPRs, human rights suggest that new instruments
and thresholds for protection should be developed: graduation of obligations
commensurate with levels of development, and maximum standards of protec-
tion of information of particular value and importance to rural populations.
Appropriate changes to patent laws are being discussed in order to accommo-
date these needs. In the eld of agriculture, import regulations and domestic
support levels need to be analysed against goals of sustainable agriculture and
related rights of the rural poor.
Likewise, in the formulation of human rights policy, trade concerns and
fundamental principles of trade regulation need to be taken into account.
The scope of rights and obligations and impact assessments is bound to be
controversial in the light of competing interests within and among States. These
are matters on which the debate must be structured and organized within
national and international bodies.
To this effect, appropriate institutional channels and linkages between different
international bodies and organizations should be created. International organiza-
tions should be organized so that their governing bodies can make authoritative
statements relating to the scope of rights and obligations and the impact of
proposed solutions in other institutions. In appropriate cases, executive boards
or secretariats should be given the power to make these determinations and act
accordingly. The channels of interaction between organizations, both political
and judicial, must be enhanced.
Importantly, also at the domestic level, appropriate channels of communication
and interaction between different ministries and departments of government,
as well as the private sector, are indispensable in assessing human rights and
trade policy implications.
International law therefore should develop avenues, principles, and procedures
of inter-agency interaction between international organizations. It should also
address minimal standards with which governments have to comply in terms of
good governance. Here follow three basic recommendations:
1. Trade regulation should be shaped in a manner that permits Members of the
WTO to pursue appropriate domestic human rights policies commensurate
with their levels of development. Scope for such policies exists under current
principles and their exceptions in goods and services, in particular the
possibility to protect public morals, public health, and the environment. The
provisions of WTO law should be construed in accordance with human
rights. This is an emanation of the principle of interpretation consistent with
core values of international law. In the exceptional case of true conict
between trade and human rights law, the outcome should not depend solely
on where the issue or dispute is being discussed. Both trade and human
rights adjudicators should rather resolve the conict based on the conict
resolution rules of international law (be it explicit treaty clauses or the lex
posterior or lex specialis principles). WTO panels, in particular, must be
open to disapply trade law based on conicting human rights if and when
under international law the latter (human rights) prevail over the former
(trade).
Human rights implementation in trade policy needs close coordination
with afrmative action, often taking place outside the realm of trade policy
and the WTO.
Trade regulation should be shaped in a manner allowing Members to pursue
effective and targeted human rights policies as part of foreign policy. Trade pol-
icy and regulation (including trade preferences or sanctions) offer an import-
ant framework to this effect. This dimension amounts to one of the most
contentious issues in linking trade and human rights as it affects national
sovereignty and domestic power relations.
2. Trade restrictions may be imposed for non-economic reasons, and unrelated
to the trading system. Sanctions for purely political ends can only be
imposed on the basis of UN Security Council sanctions in accordance with
Article XXI GATT and similar provisions in other agreements. Such
measures cannot be lawfully implemented on a unilateral basis. Human
rights protected under jus cogens entitle, and possibly even oblige, States to
take unilateral action. This is of particular relevance for racial segregation,
slavery, and related forms of exploitation of human beings (such as
forced labour). Unless otherwise provided for in international law,
trade regulations cannot be used as a means of implementing sanctions for
political ends, unrelated to specic products, outside the scope of WTO
rights and obligations.
Within WTO law properly speaking, restrictions imposed on the basis of
human rights policies are available to combat distortions caused by prison
and thus arguably also forced labour. It does not explicitly entail other
causes of intervention in WTO law. Under exceptional circumstances,
Members may be granted a waiver. Other causes of action are most contro-
versial and expose the problem of extraterritorial application of laws.
3. Human rights policy as part of foreign trade policy should be dened and
assessed from the point of view of whether protection of human rights is
relevant and important for maintaining the long-term stability and viability
of the international trading system. Efforts to dene pertinent rights
should be made. Violations of human rights protected under jus cogens a for-
tiori are highly destabilizing and may be given additional cause of action. We
submit that protection of freedom of information and expression, not limited
to commercial speech, and protection of property and of basic social welfare
rights (right to food, shelter, basic education) are implied and necessary
components of a stable international trading system. Failure to promote and
protect these rights risks disruption and crisis and should be remedied
and prevented. These human rights, in other words, are universal values
equivalent to global commons and global public goods, and should be
treated accordingly.
Unilateral action against human rights violations in the WTO is highly
controversial and the legality of such measures depends upon interpretation of
WTO law and other relevant international law. To begin with, the question may
depend upon product differentiation under MFN, national treatment, the
exceptions and waiver provisions of the WTO. This is a crucial and controver-
sial point. It is conceivable that violations of human rights, including core
labour standards, should be allowed to be taken into account as a product and
process method of goods and services under Article III GATT and Article XVII
GATS and not only under exceptions under Article XX. WTO law potentially
allows taking action against human rights violations if there is a sufcient nexus
between such violations and the products denied market access. Whether or not
a product is produced in accordance or contrary to human rights standards
may, therefore, matter. Recourse to exceptions in Article XX on protection of
public health and public morals widens the options, and restrictions are no
longer inherently limited to a PPMs issue. The exception may also serve as a
basis for import bans of products not directly related to human rights violations
but originating in a country that was found to be in grave and persistent breach
of fundamental human rights. The same holds true for waivers, even if it may
be difcult to achieve agreement or consensus on such matters. Finally, and
even more controversial, the question remains whether trade sanctions can be
justied with reference to rules outside the WTO treaty, in particular, bilateral
or regional agreements (such as those regularly concluded by the EU) or rules
of general international law on countermeasures (which permit otherwise
prohibited conduct, such as trade restrictions, if proportional to a breach of
international law elsewhere).
It is possible to condition the granting of preferential market access under
so-called GSP schemes to the implementation of human rights standards provided
that the policy is consistently applied under MFN. Finally, it is possible to
achieve such effects by means of a waiver, which places the measures technically
outside the normative framework of WTO law.
We submit that unilateral action against human rights violations within the
multilateral trading system, however, should only be possible upon failure of
an agreed solution of which afrmative action should be a mandatory part.
Alternatively, it could be proposed that trade restrictions always be linked to
afrmative action. Remedies and prevention of crisis by means of trade measures
and restrictions should necessarily be accompanied by supporting policies by
the government taking action. For example, PPMs alone should not be recognized
without a component of transfer of resources (investment, technology transfer,
education). Trade measures alone are not in a position to remedy the human
rights situation, nor do they make available the necessary means. They provide
the necessary pressure for agreement to undertake reforms. But additional
means and resources should be made available.
Linking product differentiation on the basis of PPMs with afrmative action
requirements may provide a basis for future political agreement on the subject,
in areas of both human rights and environmental protection. Up to this point,
unfortunately, the matter is left with the case law and evolution on a case-by-case
basis.
Private operators are of crucial importance in linking trade and human
rights. They are not obliged under WTO law, but their legal responsibility is
emerging on the basis of soft law instruments and partly exists in domestic law
for human rights violations induced or supported by commercial practices of
corporations. Responsibility for human rights violations is an important aspect
of constitutionalizing international law. To the extent that companies are held
liable under human rights law, they should, arguably, also be entitled under
international trade law. The questions of liability and direct effect of WTO law
under national or regional law therefore are closely linked.
The extent to which companies should be given access to international dis-
pute settlement and assigned with international responsibility for violations of
human rights and international trade law leads to future prospects which under
current international law structures, and short of an international agreement to
this effect, are difcult to envisage and realize. It entails a fundamental shift that
would require, prior to it, many more steps like the ones suggested in this paper.
Linking trade and human rights is a complex, but important, issue. Different
from other linkages, such as trade and environment, or trade and culture, this
linkage involves the very foundations of a human-centred system of law. The
ability to take into account and to realize human rights and ethical values
underlying these rights is critical for the long-term legitimacy of the multilateral
trading system. At the same time, the problem is particularly complex and
partly elusive. We hope that the papers of this volume may assist in achieving
some conceptual progress in bridging the gap of, and bringing together, two
historically distinct traditions and regulatory areas of international law.

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international economic law series

General Editor: John H. Jackson

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