1-ITL and Human Rights

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international economic law seriesGeneral Editor : John H. Jackson

HUMAN RIGHTS AND INTERNATIONAL TRADE


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Human Rights and

International Trade

Edited by

THOMAS COTTIER

JOOST PAUWELYNand

ELISABETH BRGI BONANOMI

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To think these issues through, it is important to look at the goals of thehuman 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 whichare often avoided by the experts, namely the need to disaggregate the questionof human rights, or differentiate among human rights and look at them case bycase so as to develop priorities. In many ways, that task has been anathema tothe 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 someof a broader coalition constituency. However, it is important to look at eachindividual human right, and look at the goals that support it because this maylead 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 theUS perspective and European perspectives. This may stem from a broaderdifference over international law generally, and over a number of other issuesbeing very strongly debated recently. Here we can mention one or two of thosedifferences that affect the human rights area. For one thing Americans, particu-larly those who have delved deeply into constitutional law, know the 1930shistory of the US Supreme Court, which really leads many Americans to thealmost inevitable conclusion that we ought not to constitutionalize economicrights . There are real risks in bringing to the judiciary certain issues, includingcertainly some risks in the area of economic rights.

This does not mean that you can completely separate certain human rightsfrom these economic ideas. For example, in the Bill of Rights there is a propertyright, which is an economic right, but there are limits to how far the marketideas will go. For instance, to impose the market idea on a constituency that anygovernment regulation whatsoever is a taking of property is very dangerous.

Many human rights scholars, including those in this project, recognize thatone of the tough issues of human rights is the constant balancing, the constantdening of the limits to rights. The extraordinarily rich jurisprudence of theEuropean Court of Human Rights with regard to human rights highlights thisneed for balance, limits, and denition. This includes the notion that the limitsmay evolve as society evolves, over time. (This is anathema to many nationalsovereignty 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 pragmaticalso. What are the goals of citizensindividual citizens trying to carry out theirfamily lifeand what will promote the ability to full those goals? This comeswith 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 youdesign governments to aid individual citizens. The US has sensed over manyyears 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 Jacksonvi


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its citizens. In Europe, the rst half of the last century was a disaster, with twohuge 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. Anotherview is that the international system is far from being democratic and legitimatein a lot of spheres, and therefore this approach is very dangerous and, to somedegree anti-democratic. Many still think the nation-state, on the whole and inmost places, better protects against misuse of power by governments than doesthe international system, although this may change over time.

Those issues engage concepts of constitutionalism, signs of which we cansee in the WTO, especially its extraordinary and powerful dispute settlementsystem. The 27,000 pages of the WTO jurisprudence already reported probethe frontiers of these issues, such as in the remarkable ShrimpTurtle case.3One 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 constitutionalismare, 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 frameworknorms protect unpopular views in the short term, and also protect againstmajority rule to some extent in favour of minority rights. Therefore, you endup, of course, protecting human rights in many ways.

In the ShrimpTurtle case, the key alternative tension-building policy totrade 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 withsomething 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 thejurisprudence 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 rightslinkage to the international trade agenda is a subject that is very hard tocontain. 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 possiblemore 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 theAppellate Body, WTO Doc WT/DS58/AB/R (adopted 6 November 1998).


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Contents

List of Editors xiv

List of Contributors xv

Introduction 1thomas cottier, joost pauwelyn, and elisabeth brgi

I. Conceptual Questions: Dening and Connectingthe Two Fields

1. Bridging Foundations 29Human Rights and International Trade Law:Dening and Connecting the Two Fields 29ernst-ulrich petersmann

The Legal Matrix of Human Rights and Trade Law:State Obligations versus Private Rights and Obligations 95christine breining-kaufmann

Sosa v Alvarez-Machain and Human Rights Claimsagainst Corporations under the Alien Tort Statute 137carlos manuel vzquez

States and Private Actors Obligations under InternationalHuman Rights Law and the Draft UN Norms 148karin lucke

2. Cooperation in Law-making 165Institutional Cooperation and Norm Creation inInternational Organizations 165victor mosoti

Mediating Interactions in an Expanding InternationalIntellectual Property Regime 180

laurence r helferCommentary on Victor Mosoti


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Institutional Cooperation and Norm Creation in InternationalOrganizations: The FAOWHO Codex Alimentarius 192marsha a echols

Commentary on Victor MosotiHuman Rights and Trade: Two Practical Suggestions forPromoting Coordination and Coherence 199caroline dommenCommentary on Victor Mosoti

3. Cooperation in Dispute Settlement 205Human Rights in WTO Dispute Settlement 205joost pauwelyn

A Human Rights Approach to Trade? Some Reections 232qingjiang kongCommentary on Joost Pauwelyn

Integrating Enforcement of Human Rights Laws withEnforcement of Trade Laws: Some Baseline Issues 236maria greenCommentary on Cooperation in Dispute Settlement

II. The Trade and Human Rights Interface in Practice: Case Studies

4. Freedom of Expression 245Linkages between Freedom of Expression and Unfair CompetitionRules in International Trade: The Hertel Case and Beyond 245thomas cottier and sangeeta khorana

The Hertel Case and the Distinction between Commercialand Non-Commercial Speech 273christoph b graberCommentary on Thomas Cottier and Sangeeta Khorana

5. Right to Health 279The Rule of Reason and the Right to Health:Integrating Human Rights and Competition Principlesin the Context of TRIPS 279frederick m abbott

The Right to Health, Intellectual Property, andCompetition Principles 301sisule f musunguCommentary on Frederick M Abbott

Contentsxii


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International Trade and Human Rights: Conicting Obligations 311prabhash ranjanCommentary on Frederick M Abbott

Trade, Human Rights, and the WHO Framework Convention onTobacco Control: Just What the Doctor Ordered? 322allyn l taylor

Conicting Rules in the WHO FCTC and Their Impact 334werner mengCommentary on Allyn L Taylor

6. Right to Food 341

The Right to Food and Trade in Agriculture 341christine breining-kaufmann

Reconciling TRIPS and the Right to Food 382shelley edwardson

7. Conict Diamonds 391

Stopping Trade in Conict Diamonds: Exploring theTrade and Human Rights Interface with the WTO

Waiver for the Kimberley Process 391krista nadakavukaren schefer

Conict Diamonds and the WTO: Not the Best Opportunityto be missed for the TradeHuman Rights Interface 451kevin r grayCommentary on Krista Nadakavukaren Schefer

8. Conditionality in GSP Programmes 463

The Appellate Body Report in European CommunitiesConditionsfor the Granting of Tariff Preferences to Developing Countries andits Implications for Conditionality in GSP Programmes 463lorand bartels

GSP Programmes and Their Historical-Political-InstitutionalContext 488gregory shaffer and yvonne apeaCommentary on Lorand Bartels

The Enabling Clause and the Applied Rules of Interpretation 504jane bradleyCommentary on Lorand Bartels

Index 507

Contents xiii


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List of Editors

Thomas Cottier is Professor of European and International Economic Law atthe University of Berne, Switzerland, and Managing Director of the WorldTrade 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 (LegalAffairs 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 iscurrently working on her PhD on Sustainability Principles for Trade inAgriculture. Formerly she was a Legal Affairs Ofcer with the EconomicDepartment of Berne.


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List of Contributors

Frederick Abbott is Edward Ball Eminent Scholar Professor of InternationalLaw at Florida State University College of Law.

Yvonne Apea is Programme Coordinator for Africa and Legal Affairs at theInternational 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 EconomicLaw, Georgetown University Law Center. Previously she served in theExecutive Ofce of the President of the United States for more than twentyyears, primarily in the Ofce of the US Trade Representative (USTR). While atUSTR, she was the lead US negotiator on the agreement that created the WorldTrade Organization (WTO) dispute settlement procedures, and she headed theUSTR ofce responsible for WTO litigation. She held various positions withinUSTR, including Assistant US Trade Representative for Monitoring and

Enforcement, Deputy General Counsel, and Legal Advisor to the USTRdelegation 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 HumanResources 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 andservices and represented the Swiss Central Bank in the negotiations on theEuropean Economic Area.

Caroline Dommen is founder and director of 3D Trade Human RightsEquitable Economy. Previously, she was International Law Ofcer of International Centre for Trade and Sustainable Development (ICTSD) based inGeneva. She has also held the posts of Programme Ofcer of the InternationalService for Human Rights in Geneva and New York, and Expert on Trade andEnvironment at UNCTAD. Caroline is a member of several professional bodiesincluding the International Advisory Network of the Business & Human RightsResource Centre, the IUCNWorld Conservation Union Commission onEnvironmental Law, and the Editorial Board of the Journal of InternationalWildlife Law and Policy.


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Law. Before that she was Senior Health Policy Adviser at the World HealthOrganization, Geneva, and Chair of the International Health Law.

Carlos Manuel Vzquez is Professor of Law at Georgetown University LawCenter and Director of its Human Rights Institute. He has been a member of theInter-American Juridical Committee, Organization of American States.

List of Contributorsxviii


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[T]odays threats to our security are all interconnected. We can no longer afford to seeproblems such as terrorism, or civil wars, or extreme poverty, in isolation. Our strategies

must be comprehensive. Our institutions must overcome their narrow preoccupationsand 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 inInternational Law: An Overview

thomas cottier, joost pauwelyn, andelisabeth b rgi

i. int roduct ion

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, aspirein their own ways after welfare in the pursuit of human happiness. Both formedessential parts of the 1942 Atlantic Charter. Ever since the adoption of theGeneral Agreement on Tariffs and Trade (GATT) in 1947 and the UniversalDeclaration of Human Rights in 1948, each of these two components evolvedin their own and distinctive ways, with their own logic and institutions. Bluntlyput, the Bretton Woods institutions (World Bank, International Monetary Fund,and GATT) focused on the world s economic problems; 1 the UN institutionshad 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 inthe context of structural adjustment. They partly render af rmative actionnecessary, 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-skilledworkers in developed countries.

Both trade regulation and human rights have strongly contributed to thedevelopment of international law. For many decades, the legal relationship

1 Both the IMF and World Bank articles of agreement, for example, explicitly stated that politicalfactors 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 country s human rights orcorruption record).


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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 madethe separation between different elds of international law look all the morearti cial. The emergence of non-state actors on the international arena (be itnon-governmental organizations, companies, or world public opinion) putadditional pressure on government representatives not to deal with problems inisolation, but when regulating international trade to take account also of whathad been decided at the UN in terms of environmental or human rights protec-tion. Trade lawyers, confronted with these challenges, felt compelled to clarifythe relationship of trade regulation, economic law in general, and humanrights. More speci cally, they started to explore the status of human rights intrade law, including the prospects for WTO adjudication. A process towardsgreater 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 challengeconsists in organizing the work and subjects in a meaningful and clear manner.Work undertaken so far within and outside the project shows that the pertinentissues relate to different levels of the relationship of trade regulation andhuman rights. The following basic levels of the problem and questions may bedistinguished:

Constitutional theory: philosophical, cultural, and legal foundations of therelationship between trade regulation and human rights, both in domesticand in international law and as a matter of vertical interaction (multilayeredgovernance).

Institutional matters of jurisdiction and cooperation between different

international organizations and institutions, entailing cooperation both intreaty-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. Howmuch leeway should trade law provide to countries pursuing human rightspolicies?

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 usefulto 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


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the rst volume of the project. 3 In addition, it collects a number of case studieswhich may feed back into theoretical work and insights. In the followingsections, we seek to offer a brief summary of the contributions and to place

them in perspective. The introduction concludes with a number of suggestionsfor further work and speci c action in interfacing trade regulation and theprotection and promotion of human rights.

ii. the search for bridging foundations

Before turning to the intricacies of international law, it is useful to address therelationship of trade regulation and human rights in terms of constitutional

theory. The paper prepared by Ernst-Ulrich Petersmann (p. 29) builds upon theexperience of constitutionalism in Europe which, on the basis of protectinghuman dignity, respects the indivisibility of political, social, and economicrights and accords market freedoms the status of fundamental constitutionalrights. Petersmann calls for a stronger process of transnational constitutional-ization, as multilevel governance requires multilevel constitutionalization. Onthis view, citizens and private economic actors should be recognized as legalsubjects and empowered as such. The international system should shift from astate-centred UN system to a citizen-centred, human rights based system.Thereby the guarantee of market freedoms should go hand in hand with theprotection of human rights, as the rst is according to Petersmann a pre-condition to resolve the grave challenges with respect to the social and economichuman rights the world is facing today. On the other hand, human rights needto balance the exercise of market freedoms:

Multilevel constitutionalism helps better to understand, use, and strengthen thefunctional interrelationships between international and domestic constitutional rules.

Just as democracies are not sustainable over time without constitutional democracy , socan market economies not properly function without respect for human rights andeconomic constitutions that protect non-discriminatory, consumer-driven competitionand social justice. 4

While constitutional rights serve more speci c functions in the US tradition,focused in particular on civil and political rights, human rights includingmarket freedoms provide an overall normative framework, based upon whichconicts of competing policy goals and rights can be addressed. The experienceof domestic and regional constitutional law within the European Unionillustrates the close interaction between economic and human rights, rst in thecase law of the European Court of Justice, later in the treaties themselves (see the

Thomas Cottier, Joost Pauwelyn, and Elisabeth B rgi4

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: De ning and Connecting theTwo Fields in ch 1 of this volume.


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Treaty establishing a Constitution for Europe). Domestic law, supported by theEuropean Convention on Human Rights, established a careful balance betweeneconomic and non-economic rights.

Fundamental human rights guarantees in many ways support freedom of eco-nomic players, protecting them from undue government intervention. They playfor example a crucial role in redressing asymmetries of market information. Thecase 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 anef ciently functioning market economy. Therefore, the authors claim that free-dom of expression should be included in the rules of the trading system at leastto the extent that this is necessary in order to prevent and to remedy asymmetriesof information on export markets. On the other hand, freedom of expressionshould also provide a basis for legitimate restrictions of economic activities. Theauthors refer to the experience of the European Communities which shows thathuman rights, sooner or later, enter the trade game, even though they were notpositively inscribed into the original, functionalist EEC treaty.

Christoph B Graber (p. 273), commenting on Cottier and Khorana s paper,questions the economic approach chosen by the two authors. He agrees that aneconomic analysis of law, such as the theory of information asymmetry, canhelp legitimize the use of free speech. He nds the matter, however, to be morecomplicated and in particular insists on the established, but dif cult, distinctionbetween political and commercial speech with its varying standards of reviewunder constitutional law and the European Convention on Human Rights.

Domestic or regional institutions, in particular Constitutional Courts, theEuropean Court of Human Rights, and the ECJ, are well positioned to produce aproper balance in individual cases, as they enjoy comprehensive jurisdiction overall rights involved. It does not imply that these institutions always get the balanceright. The said case study relating to freedom of speech and unfair competitionshows that the balance sought by the Swiss Federal Court had to be remedied bythe European Court of Human Rights. Protection of human rights by the ECJ formany years was subject to the criticism that it was merely functional in promot-ing integration, rather than genuinely protecting human rights. But the creationof institutions which have jurisdiction encompassing trade regulation andhuman rights provides the necessary and essential foundation for re ning andbalancing 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 tostrike 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, properlyspeaking. Its structure remains very different from national constitutions and



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legal orders. Institutionally, a great number of diverging actors with differentconstitutional backgrounds, fragmentation of jurisdiction of internationalorganizations, 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-discrimination in trade laware not of a higher rank than any other source of law as any inherent hierarchyof 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 understoodto include some core human rights, though not trade law.

In the debate on linking human rights and trade in international law, andgiven the starting point of the debate, it is, however, generally assumed that inmost cases human rights should trump market access and economic regulationsand work as a check on them. Trade obligations continue to be negotiated,framed, and enforced as bilateral state-to-state contracts , whilst human rightsare construed as collective obligations that transcend the individual interests of any two states and take on an almost constitutional value. However, given thepatchy and fragmented judicial enforcement of international law, the interplayand checks-and-balances between the two elds in practice remains highlyexceptional. The role of human rights in international law is, at least at thisstage, different from that domestically or in regional integration. Transforminginternational law into constitutional modes t to deal with the coordination of diverging values therefore requires fundamental changes. These may be inducedover a longer period of time by changing attitudes and working towards multi-layered governance, or be induced by radical institutional changes, such as thecreation of a common World Appeals Court.

The suggestions made by Petersmann indicate a long-term approach. He has noillusion 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 newWTO Ministerial Declaration which would renew the commitment of WTOMembers to respect universal human rights, support the need for harnessing thecomplementary functions of WTO rules and human rights, and require WTObodies to take into account human rights obligations as relevant legal context forthe interpretation of WTO rules. Petersmann further provides some concreteexamples as to how the democratic monitoring of the WTO negotiations could bestrengthened, for instance through institutionalizing the WTO s annual publicsymposia and nancially supporting the parties of non-governmental organiza-tion (NGO) representatives from LDCs. Furthermore, he calls for an explicitWTO 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 iscloser to this approach, Petersmann wonders whether an EU leadership for a newtransnational constitutionalism may be needed to further advocate these aims.



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While these are important steps toward constitutionalizing internationaltrade regulation, they far from establish an overall constitutional structurecapable of responding to the constitutional aspirations set forth in Petersmann s

theory. It is important to understand that the main concern of his constitutionaltheory 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 graduallyemerging in European integration. Petersmann, however, struggles with thecurrent institutional infrastructure and architecture, which is still far awayfrom his ideal.

The critique formulated against Petersmann s constitutional theory and thenormative framework in which it is set stresses the fundamental differencesbetween domestic and regional law, on the one hand, and international law, onthe other. The critique offered by Philip Alston reiterated orally at our thirdconference in 2004 is founded upon positive law, in particular the structureof contemporary international law, and largely addresses problems distinctfrom constitutional theory. 5 Although Alston fundamentally disagrees withPetersmann s equating of fundamental (economic) freedoms with fundamental(human) rights , his fears of merging human rights and trade, or the acquisitionof human rights by trade law, are expressed from the vantage point of the cur-rent institutional and fragmented framework. From this perspective Alston sconcerns as to who has authority and jurisdiction to interpret and applybroadly de ned human rights standards are pertinent questions, as much asthe fear that human rights may be subjected to trade law, given the relativelypowerful and unique position of the WTO and its dispute settlement mecha-nism. His critique, however, is situated on a different level of the problem andtopic. It squares and applies Petersmann s constitutional vision to the currentinstitutional setting and framework. Not surprisingly, therefore, the notoriousAlston Petersmann debate reads like a dialogue des sourdes . The contenders, itwould seem, are not on the same page as they talk in different words andworlds. At the same time, the debate does unearth fundamental questions as tothe relation between civil and political rights, on the one hand, and economicand 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 rightsas they appear in UN instruments, Petersmann would expand those rights so asto 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) 621 650; P Alston, Resisting the Merger and Acquisition of Human Rightsby Trade Law: A Reply to Petersmann, European Journal of International Law, vol 13 no 4 (2002)815 844; E U Petersmann, Taking Human Dignity, Poverty and Empowerment of Individuals MoreSeriously, Rejoinder to Alston, in European Journal of International Law, vol 13 no 4 (2002)845 851.


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The fear of merger and acquisition of human rights by the trading systemmust, 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 tointerpret and apply human rights be reserved to its proper institutions, inparticular the UN Human Rights Commission or the International Court of

Justice? And to what extent should other bodies, such as WTO panels orAppellate Body, be able not only to refer to, but also to construe, human rights?Those are fundamental questions of jurisdiction and allocation of powers thatthis volume attempts to address.

iii. issues of jurisdiction and agency cooperation

Jurisdiction and cooperation therefore emerge as the key component of the tradeand human rights debate. Not surprisingly, it shares this dimension with otherlinkage 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 afunctional division of labour. Human rights values therefore are not taken intoaccount in trade-related institutions unless institutional arrangements are madein order to give them a proper voice, and vice versa. While institutions may beset up differently and operate side-by-side, real-life problems do not respectjurisdictional boundaries, and law-making in different institutions inherentlyspills over into other regulatory elds. In today s interdependent world, anyattempt to set up hermetically sealed compartments of international law isan illusion. Law-making therefore needs to entail mutual information andinteraction 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 de ciencies in the negotiating process.Allyn Taylor emphasizes the tensions that an open trading system might bringabout with respect to health issues and the need for closer cooperation betweenthe different institutions. During the negotiations, however, the relationshipbetween the FCTC and trade agreements was very contentious and the questionof con ict between them remained unresolved. In addition, Taylor expressesastonishment that human rights legal approaches were seldom invoked duringthe negotiations, although human rights and protection of public health areclosely intertwined and the recourse to the language of rights would have beenhelpful to defend health interests. She attributes this de ciency to the fact that

most negotiators were part of the public health community and therefore notfamiliar with human rights approaches, and that the reference to human rights-based approaches would not have been widely accepted, particularly withindeveloping countries.



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has forced the Codex to adjust its rule-making procedures so as to increase theiref ciency and legitimacy.

Caroline Dommen s comment (p. 199), nally, makes suggestions on how the

role and in uence at the WTO of internationally recognized human rightscould 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 needfor a separate human rights statement within the WTO. Taking human rightsseriously in trade negotiations would require broader participation of differentactors and assessments of the potential impact of global trade policies on theenjoyment of human rights. Such assessments should take place prior to mak-ing commitments and the needs of the poorest and most vulnerable should becentre stage. Dommen calls for a more active role for the United Nations HighCommissioner for Human Rights in preventing states from agreeing to bindingcommitments that deprive them of taking human rights relevant measures. Shecalls for more transparent trade outcomes by making risks and bene ts of tradeliberalization more explicit.

The idea of assessing the impact of trade on human rights is an interestingproposition, albeit suffering from the fact that relevant standards and benchmarkstend 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 leadto a rethinking and reshaping of existing trade rules which, in turn, could result, insome 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 domesticpolicy coordination within governments. Problems faced on the internationallevel between international organizations often merely re ect the fact that gov-ernments are equally fragmented and domestic policy making does not takeinto account trade and human rights concerns to the full extent. Ministries anddepartments are competing in the pursuit of their policy briefs, and supportedby different constituencies in society. Efforts therefore are equally required indomestic law-making procedures. International law, as it currently stands,completely lacks the tools to secure domestic policy coordination. Whether thishappens is entirely left to national sovereignty and structures of government.The concept of good governance and governance in general, however, mayprovide an interesting starting point in search of minimum domestic proceduralrequirements in internationally relevant legislation and policy making. It is herethat WTO law and its many prescriptive procedural rules, ranging from trans-parency to domestic court proceedings, could offer the basis for innovativeinternationally de ned institutional requirements or guidelines with whichmembers 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 representinghuman rights should be in a position to provide advice and input to WTO



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Christine Breining-Kaufmann (p. 95) depicts the differences between trade reg-ulation and human rights including their distinct traditions. She emphasizesthat although human rights and trade law share a common starting point, they

developed in different ways. She re ects on the different nature of trade andhuman rights obligations and identi es fundamental conceptual differenceswith regard to the notions of non-discrimination and equality. While humanrights institutions have offensively reacted to the appearance of new actors andintegrated them by granting rights and corresponding obligations to individu-als and a special status to NGOs, international trade law did not accommodatethe 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 AppellateBody, which has recognized the importance of interpreting WTO law accordingto the rules of Article 31 of the Vienna Convention on the Law of Treaties; amethod which is of particular importance in the context of exceptions such asArticle XX of GATT and also in interpreting the term like product in thevarious provisions of the GATT and the General Agreement on Trade inServices (GATS). Breining nevertheless identi es several questions, such aswhich human rights are universally accepted and could be considered in thecontext of WTO law? and who should develop the necessary benchmarks?

One of the basic questions in this respect relates to the scope that WTOMembers enjoy or should enjoy for taking account of human rights in tradepolicy formulation and administration. The like product analysis in de ningwhether 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 humanrights concerns as such concerns may be re ected in different process andproduction methods (PPMs), thereby potentially making, for example, foot-balls stitched with child labour unlike other footballs. We submit that WTOlaw may be induced gradually to leave a rigid interpretation behind. Exceptionsrelated to public morals provide another portal, albeit primarily focused onhuman rights compliance in the importing country and possibly ethical ormoral concerns in the importing country related to human rights practicesabroad.

As in other areas, recognition of PPMs entails market access restrictions. Notsurprisingly, developing countries oppose such modi cations as they may beadversely affected. For similar reasons, re ections offered by Qingjiang Kong(p. 232) advocate a clear separation of trade and human rights. In his viewhuman rights and trade law approaches cannot be simultaneously utilized asthe rst is based on natural and the second on positive law. On this view, freetrade in itself has to be understood as a human right, a right which is violatedby protectionism. And the argument that a human rights approach to trade

would improve China s 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 donothing but remind people of bitter memories of superpower hegemony.



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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 GATTArt 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 berecognized as a ground for product differentiation where fundamental rights,in particular the prohibition of forced labour (slavery in all its forms), areconcerned. 7 A further potential portal could be identi ed 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, especiallywhen voluntary and linked to universally recognized standards, can be animportant and legitimate tool to bring about human rights assessment in tradepolicy.

Another portal exists in the eld of GSP. In light of the Appellate Body reporton Conditions for Granting of Tariff Preferences to Developing Countries ,8 anargument can be brought forward that Members are entitled to condition theirtrade 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 identi edin the GSP programmes of the EC and the US. He then discusses the EC GSPdispute and its far-reaching consequences, emphasizing that the continuinglegality of non-trade conditions was not thoroughly addressed in the case. TheAppellate Body did, however, create three criteria to assess the legality of GSPconditions. For Bartels, a move from negative to positive conditionalities isprobable, as well as a reduction in the reasons that can justify a differentiationbetween developing countries. However, if generously understood, positive


6 See Art 41 of the International Law Commission (ILC) Articles on Responsibility of States forInternationally Wrongful Acts ( 1. States shall cooperate to bring to an end through lawful meansany 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 internationallaw]. . . nor render aid or assistance in maintaining that situation (Report of the ILC on the work of its Fifty-third session, Of cial Records of the General Assembly, Fifty-sixth session, Supplement No10 (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 LabourConvention], the relations that they may have with the member State concerned [Myanmar] andtake appropriate measures to ensure that the said Member cannot take advantage of such relationsto 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 recommendationsmade (Resolution of the International Labour Conference, 88th session (2000), available athttp://www.ilo.org/public/english/standards/relm/ilc/ilc88/resolutions.htm#II).

8 WTO Appellate Body Report, European Communities Conditions for the Granting of Tariff Preferences to Developing Countries , WT/DS246/R (adopted on 20 April 2004).


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Agreement allows for considerable exibility in its implementation. While sheconsiders that monopoly rights extended through patenting work almost exclu-sively for the bene t 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 settlementand legal security. Given the context of political crisis over essential drugs, thesame argument applies to the waiver under TRIPS, which in fact was an import-ant political precondition for the success of the Doha Ministerial meeting andthe 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 concedesthat the principles and norms of WTO law are not in a position to cope withsuch constellations other than by recourse to exceptional circumstances.The question remains as to what extent Members should be in a position to actunilaterally 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, althoughany adjudicator must then be careful not to step beyond what parties agreed toin both spheres of international law. From a point of view of integrating tradeand human rights, it is important to seek to integrate the concern into WTO lawitself and allow for accommodation by means of treaty interpretation.

In linking trade and environment for example, most progress was achievedthrough the means of dispute settlement and interpretation, while the process of negotiation stalled. This is due to the fact that complex problems of interfacingdifferent areas of the law are often more suitably undertaken on the basis of thefacts of a speci c case than in general and abstract terms. There is no reason tobelieve that this is different in the eld of human rights.

An instrument adopted by Members con rming compatibility of trade andhuman rights may assist the process of interpretation, and therefore should beenvisaged, as suggested by Professor Petersmann (even though it may have thesame drawback as the above-discussed waivers, ie, the adoption of a humanrights declaration could somehow imply that without such declaration humanrights cannot enter the WTO).

While WTO law offers all of the above-discussed portals which may beexpanded over time in case law, it is important to note that WTO law does notprescribe in any form consideration of human rights standards in the process of treaty making. One of the dif culties, in this respect, is that developing coun-tries often mistrust the trading system as a whole. Prabhash Ranjan s paper(p. 311), for example, re ects a widespread view on the subject matter in devel-oping countries. He goes into three practical examples of con ict between

international trade and human rights law that India has to deal with (exempli-fying the situation of developing countries). Ranjan emphasizes the con ictsthat 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)



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food, such as the reference to non-trade concerns and multifunctionality orspecial and differential treatment of developing countries. She urges negotia-tors, when further shaping new rules, to take account of the speci c character-

istics of agriculture and of the need for af rmative action in order to balance thenegative effects of trade faced by rural and urban poor.Likewise the HIV AIDS 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 asmall component. Finance, education, and distribution must be at the forefront.While af rmative action has been limited to States and aid programmes of international organizations, the human rights dimension triggers the questionas to what extent af rmative action should become an obligation of the inter-national community under international agreements and law. This dimensionhas hardly been drawn upon. It opens interesting prospects also for trade nego-tiations, as af rmative action may broaden the scope for formal negotiationsand facilitate mutual accommodation of interests.

From a legal and lawyer s perspective, the most important aspect relates tothe status of human rights in dispute settlement. Joost Pauwelyn (p. 205) offersa detailed analysis of potential portals for human rights considerations thefoundations of which are found in legal instruments outside the law of theWTO. 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 thepursuit of non-economic goals. His view emphasizes the need to bring aboutenhanced legitimacy and further integration, while respecting the limited juris-diction of the WTO. He makes a distinction between panel jurisdiction, limitedto WTO claims, and the law that panels can apply in their examination of WTOclaims, 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 panelscan refer to and apply in WTO dispute settlement. 9 While Pauwelyn s approachmay, at rst sight, spur further fear amongst human rights lawyers of a mergerand acquisition by trade law, the alternative of WTO panels completely disre-garding human rights law is worse. Pauwelyn concludes that the former is byfar the lesser evil especially if existing procedures are made available for thehuman rights community to assist WTO adjudicators in the interpretation of human rights texts, be it through expert advice and interpretative guidelinesfrom UN human rights bodies (the way panels in the past have sought theadvice of the WHO, Codex, and WIPO) or through the submission of amicuscuriae 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

structure substance pairings in future developments.


9 See G Marceau, WTO Dispute Settlement and Human Rights, European Journal of International Law, vol 13 no 3 (2002) 753 814.


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Maria Green (p. 236) elaborates on these thoughts from a human rightsperspective. She identi es two paradigms on how to inject human rights in tradedispute 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 useof human rights where human rights temper or mitigate the force of tradeliberalization rules. According to Green, whenever the WTO dispute settlementbodies 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 rights are too vague forapplication.

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 ispaid to the status of human rights in WTO law, it is submitted that the samequestion needs to be addressed the other way round. Following the debate, alsoreected 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 principlesof non-discrimination and market access on human rights standards and inter-pretation. The documents prepared by the UN Human Rights Commissionerand working groups are, so to speak, one-way papers. They dwell upon theimportance of human rights concerns but fail to address the impact of traderules in interpreting and shaping human rights. More work clearly is requiredhere, given the very close economic links between the two elds. It is not usefulto emphasize that human rights and trade law are fundamentally different.Unlike most of the political and civil rights, social and economic rights are notself-executing and require implementation. Such implementation, as much as inenvironmental law, will often take place by means of economic law and will besupported by trade policy measures. While human rights clearly are predomi-nant in terms of setting goals of aspiration, economic law provides importanttools. These tools need to be embedded within the principles of internationaleconomic law in order to be effective and successful. Recognizing marketrights, as suggested by Professor Petersmann, may therefore be a means tobridge the principles of international economic law with human rightsconcerns. It is here that international law can bene t 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 todrugs. While patent laws are instrumental and utilitarian, they neverthelessshould be considered and taken into account in the process of specifying socialand economic rights. Similarly, basic principles of international agricultural



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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 shouldbe 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-Kaufmann s paper on The Legal Matrix of Human Rightsand Trade Law (p. 95) addresses also the role and emerging responsibility of private actors in the pursuit of human rights in trade relations. Breiningexplores the potential of national liability rules and the impact of the US AlienTort Statute including case law. She claims that national laws address theresponsibility of multinational enterprises (MNEs) in different ways, and thattort law is becoming the most important tool to hold MNEs accountable.Thereby private law procedures are applied for claims which in their essence arebased on international human rights law. As traditional concepts of public andprivate law as well as national and international law cannot accommodate according to Breining these developments, a transnational approach isneeded. A rst step would be to qualify the concept of accepting human rightsviolations 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 anddiscusses in depth the US Supreme Court Decision in Sosa v Alvarez-Machainand its implications for human rights claims against private corporations. Heexplains why the decision was not the beginning of the end for the use of theAlien Tort Statute. It just clari ed 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 throughthe controversial Draft UN Norms on the Responsibilities of TransnationalCorporations, has taken up the challenges posed by an increasingly complexinternational trade regime. Because of their powerful role in the globalizedworld economy, in the centre of the current debate are the responsibilities of businesses. While states have the primary obligation to ensure the protectionand ful lment of human rights, it can, however, be observed that treaties andmonitoring bodies are increasingly referring to the responsibilities of privateactors. This is due to the fact that the responsibility of states vis--vis privatesector 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 Responsibilitiesof Transnational Corporations and Other Business Enterprises with Regard to

Human Rights have been developed, and until now have (only) been approvedby the UN Sub-Commission of Human Rights. According to Lucke, this rstnon-voluntary initiative may serve as a useful benchmark against whichnational legislation could be evaluated and monitored.



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Carlos Vazquez, however, emphasizes the fact that direct internationalregulations on private entities as contained in the UN Norms would represent asignicant loss of power of states. Therefore, attempts to expand the number of

direct obligations on companies are likely to face resistance. He assumes thatthe international regulation of corporations is likely to stay indirect.As indicated by all three authors Breining, Lucke, and Vasquez the efforts

to bring about enhanced implementation of international obligations by privateactors are all at an infant stage. Given the increased power and in uence of non-state actors, be they global companies or global NGOs, the traditional statematrix of international law needs to be adapted to provide, for example, notonly rights of multinational corporations (as is the case under NAFTA and bilat-eral investment treaties) but also obligations (both economic and social). Suchprivate 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 thusprovide an important contribution in linking trade and human rights. The ques-tion remains to what extent responsibility and liability of private operators forhuman rights violations can be achieved on the basis of a state centred systemof international law. It would seem that we are reaching the limits and that fullresponsibility 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 touchupon constitutional theory, in the long run.

vii. prospects and recommendations

The project of the American Society of International Law (ASIL) was launchedto make speci c policy recommendations and proposals for further action inlinking trade and human rights. All the trade and linkage issues imply dif cultquestions 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 tradeand 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 ornot this is called a constitutional model or a further development of embeddedliberalism is not of importance. The model must be able to reconcile differentand 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-economicvalue, 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



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to this book show that the linkage of trade and human rights is not merely amatter 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 rightsand 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 theinteraction of different regulatory levels and bring about greater coherence.

International law evolves over long periods of time. Speci c suggestionscannot directly seek to apply constitutional theory. At this point, there are nocentral institutions able effectively to address human rights and trade in anintegrated manner. However, efforts can build upon insights, step by step, andassure an overall direction. The following assumptions and recommendationsare thus submitted for discussion.

International trade regulation serves the purpose of enhancing humanwelfare. By means of free enterprise and competition, it aims at a more ef cientallocation of the world s resources. Though bene ting corporations, its ultimateaim is to serve consumers. Operationally, trade law regulates market access forgoods and services. Economic and commercial interests and economic theoryand policy inform market access negotiations and regulations in the rst place.

Human rights, in particular social and economic rights, re ect and expressstandards of human welfare aspired after by states and the internationalcommunity. They provide benchmarks by which the output legitimacy ofthe international trading system increasing human welfare is ultimatelyassessed. In this sense, trade is mostly a means to a higher end de ned in humanrights terms. Conversely, human rights are important for the functioning of themultilateral trading system. This is true both for civil and political rights(eg, free speech and a working democracy) as well as for social and economicrights (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 policyformulation. Social and economic rights provide a safety net. They allow coun-tries to engage in trade liberalization and structural adjustment. The welfarestate, to some extent, is a prerequisite for open market economies in democracy.The lack of it renders trade liberalization dif cult or unfair, aggravating potentialviolations 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 expressedin terms of human rights. The fundamental principles of trade regulation,in particular non-discrimination, protection of property rights, progressiveliberalization of trade in goods and services, and transparency, are equallyimportant and legitimate foundations of the international system.

Trade regulation may also con ict with human rights in speci c constella-tions and sectors. Such tensions are matters of controversy and political disputewithin societies and internationally.

In policy formulation and trade negotiations, human rights should be takeninto account in de ning and re ning goals of regulations. Human rights values



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in the eld of social and economic rights to a large extent depend upontransformation 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 instrumentsand thresholds for protection should be developed: graduation of obligationscommensurate 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 domesticsupport levels need to be analysed against goals of sustainable agriculture andrelated rights of the rural poor.

Likewise, in the formulation of human rights policy, trade concerns andfundamental principles of trade regulation need to be taken into account.

The scope of rights and obligations and impact assessments is bound to becontroversial in the light of competing interests within and among States. Theseare matters on which the debate must be structured and organized withinnational and international bodies.

To this effect, appropriate institutional channels and linkages between differentinternational bodies and organizations should be created. International organiza-tions should be organized so that their governing bodies can make authoritativestatements relating to the scope of rights and obligations and the impact of proposed solutions in other institutions. In appropriate cases, executive boardsor secretariats should be given the power to make these determinations and actaccordingly. The channels of interaction between organizations, both politicaland judicial, must be enhanced.

Importantly, also at the domestic level, appropriate channels of communicationand interaction between different ministries and departments of government,as well as the private sector, are indispensable in assessing human rights andtrade policy implications.

International law therefore should develop avenues, principles, and proceduresof inter-agency interaction between international organizations. It should alsoaddress 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 theWTO to pursue appropriate domestic human rights policies commensuratewith their levels of development. Scope for such policies exists under currentprinciples and their exceptions in goods and services, in particular thepossibility to protect public morals, public health, and the environment. The

provisions of WTO law should be construed in accordance with humanrights. This is an emanation of the principle of interpretation consistent withcore values of international law. In the exceptional case of true con ictbetween trade and human rights law, the outcome should not depend solelyon where the issue or dispute is being discussed. Both trade and human



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rights adjudicators should rather resolve the con ict based on the con ictresolution 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 con icting human rights if and whenunder international law the latter (human rights) prevail over the former(trade).

Human rights implementation in trade policy needs close coordinationwith af rmative action, often taking place outside the realm of trade policyand the WTO.

Trade regulation should be shaped in a manner allowing Members to pursueeffective 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 mostcontentious issues in linking trade and human rights as it affects nationalsovereignty and domestic power relations.

2. Trade restrictions may be imposed for non-economic reasons, and unrelatedto the trading system. Sanctions for purely political ends can only beimposed on the basis of UN Security Council sanctions in accordance withArticle XXI GATT and similar provisions in other agreements. Suchmeasures cannot be lawfully implemented on a unilateral basis. Humanrights protected under jus cogens entitle, and possibly even oblige, States totake unilateral action. This is of particular relevance for racial segregation,slavery, and related forms of exploitation of human beings (such asforced labour). Unless otherwise provided for in international law,trade regulations cannot be used as a means of implementing sanctions forpolitical ends, unrelated to speci c products, outside the scope of WTOrights and obligations.

Within WTO law properly speaking, restrictions imposed on the basis of human rights policies are available to combat distortions caused by prisonand thus arguably also forced labour. It does not explicitly entail othercauses 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 de ned andassessed from the point of view of whether protection of human rights isrelevant and important for maintaining the long-term stability and viabilityof the international trading system. Efforts to de ne pertinent rightsshould be made. Violations of human rights protected under jus cogens a for-tiori are highly destabilizing and may be given additional cause of action. Wesubmit that protection of freedom of information and expression, not limited

to commercial speech, and protection of property and of basic social welfarerights (right to food, shelter, basic education) are implied and necessarycomponents of a stable international trading system. Failure to promote andprotect these rights risks disruption and crisis and should be remedied



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and prevented. These human rights, in other words, are universal valuesequivalent to global commons and global public goods, and should betreated accordingly.

Unilateral action against human rights violations in the WTO is highlycontroversial and the legality of such measures depends upon interpretation of WTO law and other relevant international law. To begin with, the question maydepend upon product differentiation under MFN, national treatment, theexceptions and waiver provisions of the WTO. This is a crucial and controver-sial point. It is conceivable that violations of human rights, including corelabour standards, should be allowed to be taken into account as a product andprocess method of goods and services under Article III GATT and Article XVIIGATS and not only under exceptions under Article XX. WTO law potentiallyallows taking action against human rights violations if there is a suf cient nexusbetween such violations and the products denied market access. Whether or nota product is produced in accordance or contrary to human rights standardsmay, therefore, matter. Recourse to exceptions in Article XX on protection of public health and public morals widens the options, and restrictions are nolonger inherently limited to a PPMs issue. The exception may also serve as abasis for import bans of products not directly related to human rights violationsbut originating in a country that was found to be in grave and persistent breachof fundamental human rights. The same holds true for waivers, even if it maybe dif cult to achieve agreement or consensus on such matters. Finally, andeven more controversial, the question remains whether trade sanctions can bejustied with reference to rules outside the WTO treaty, in particular, bilateralor regional agreements (such as those regularly concluded by the EU) or rulesof general international law on countermeasures (which permit otherwiseprohibited 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 underso-called GSP schemes to the implementation of human rights standards providedthat the policy is consistently applied under MFN. Finally, it is possible toachieve such effects by means of a waiver, which places the measures technicallyoutside the normative framework of WTO law.

We submit that unilateral action against human rights violations within themultilateral trading system, however, should only be possible upon failure ofan agreed solution of which af rmative action should be a mandatory part.Alternatively, it could be proposed that trade restrictions always be linked toaf rmative action. Remedies and prevention of crisis by means of trade measuresand restrictions should necessarily be accompanied by supporting policies by

the government taking action. For example, PPMs alone should not be recognizedwithout a component of transfer of resources (investment, technology transfer,education). Trade measures alone are not in a position to remedy the humanrights situation, nor do they make available the necessary means. They provide



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the necessary pressure for agreement to undertake reforms. But additionalmeans and resources should be made available.

Linking product differentiation on the basis of PPMs with af rmative 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-casebasis.

Private operators are of crucial importance in linking trade and humanrights. They are not obliged under WTO law, but their legal responsibility isemerging on the basis of soft law instruments and partly exists in domestic lawfor human rights violations induced or supported by commercial practices of corporations. Responsibility for human rights violations is an important aspectof constitutionalizing international law. To the extent that companies are heldliable under human rights law, they should, arguably, also be entitled underinternational trade law. The questions of liability and direct effect of WTO lawunder 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 undercurrent international law structures, and short of an international agreement tothis effect, are dif cult to envisage and realize. It entails a fundamental shift thatwould 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. Differentfrom other linkages, such as trade and environment, or trade and culture, thislinkage involves the very foundations of a human-centred system of law. Theability to take into account and to realize human rights and ethical valuesunderlying these rights is critical for the long-term legitimacy of the multilateraltrading system. At the same time, the problem is particularly complex andpartly elusive. We hope that the papers of this volume may assist in achievingsome conceptual progress in bridging the gap of, and bringing together, twohistorically distinct traditions and regulatory areas of international law.


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1-ITL and Human Rights

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