Enforcing Human Rights Through the WTO A Critical Appraisal.pdf

7/27/2019 Enforcing Human Rights Through the WTO A Critical Appraisal.pdf

1/49

Enforcing Human Rights through the WTO

A Critical Appraisal

Dean Dalke, LLB, BBA

No. 58

Occasional Papers

in International Trade

Law and Policy

Articles varies sur la poli-

tique et le droit commer-

cial international

A research essay submitted to the Faculty of Graduate Studies and

Research in partial fulfilment of the requirements for the degree of

Master of Arts in The Norman Paterson School of International Affairs,

Carleton University, Ottawa, Ontario, 13 July 2004


2/49

Library and Archives Canada Cataloguing in Publication

Dalke, Dean, 1975-

Enforcing human rights through the WTO : a critical appraisal / Dean Dalke.

(Occasional papers in international trade law and policy = Articles varis sur

la politique et le droit commercial international, ISSN 1192-0173 no. 58)

Includes bibliographical references.

ISBN 1-896871-24-0

1. World Trade Organization. 2. Human rights. 3. International

trade Social aspects. 4. Free trade Social aspects. I. Title.II. Series: Occasional papers in international trade law and policy 58.

JC571.D22 2006 382.92 C2006-906541-1

Centre for Trade Policy and Law Centre de droit et de politique commercialeCarleton University, DT 21stFloor Facult de droit

1125 Colonel By Drive Universit dOttawa

Ottawa, Ontario 57 Louis Pasteur

Canada K1S 5B6 Ottawa (Ontario)

Tel: (613) 520-6696 Canada K1N 6N5Fax: (613) 520-3981

E-mail: [email protected]

http://www.carleton.ca/ctpl


3/49

Table of Contents

Abstract .......................................................................................................................................i

Introduction ................................................................................................................................11 Overview of Human Rights and Trade Regimes .....................................................................3

1.1 The UN Human Rights Regime .................................................................................3

1.2 The Trade Regime under the WTO...........................................................................12

2 Conceptual Issues Arising from Linkage Proposals ..............................................................17

2.1 Common Origins of Human Rights and Trade Liberalization .................................... 17

2.2 Synergy between Trade and Human Rights...............................................................19

2.3 Is There Conflict between the WTO and Human Rights? .......................................... 20

2.4 Does Inclusion of Intellectual Property in the WTO Support Linkage Claims?..........26

2.5 Race to the Bottom and Establishing a Level Playing Field .......................................27

3 Practical Issues Arising from Linkage Proposals................................................................... 30

3.1 The Effectiveness of Sanctions .................................................................................30

3.2 Alternatives to Sanctions..........................................................................................33

3.3 Does the Institutional Capacity Exist for Making Human Rights Determinations?..... 33

3.4 Would Enforcing Human Rights Increase the Legitimacy of the WTO? ....................35

Conclusion ................................................................................................................................37

Bibliography..............................................................................................................................39


4/49

Abstract

The success of the international trade regime has led to claims that human rights be linked to theWorld Trade Organization (WTO). This paper examines such a linkage by asking whether human

rights and trade are sufficiently related and whether a linkage is feasible as a practical matter.

The human rights and international trade regimes share a common history, but developed

along different trajectories. The trade regime developed effective enforcement mechanisms, while

the human rights regime is often criticized for its lack thereof. Upon closer examination, an en-

forcement mechanism for human rights is not the only answer, and the WTOs enforcement

mechanisms may not be the answer at all.

This paper concludes that while there are a number of conceptual similarities between the

trade and human rights regimes, they do not provide unequivocal support for a linkage. More im-

portantly, practical problems in building such a linkage raise serious questions as to its viability.

Dean Dalke


5/49

ENFORCING HUMAN RIGHTS

THROUGH THE WTO

A CRITICAL APPRAISAL

DEAN DALKE

Introduction

There are few meetings of international organizations that are not met with protests by anti-

globalization groups. Since the meeting of the World Trade Organization (WTO) in Seattle in

November 1999, protests have been a constant feature of its meetings. Although the protestors

are not all motivated by the same goals, their ranks have consistently been populated by labour,

environmental, and human rights activists. In general, they fear that the WTO obligations threatenstandards that protect labour, human rights, and the environment, and they criticize the WTO for

not being adequately sensitive to those concerns.1

In addition, quite apart from the threat of the

WTO, activists see the successful enforcement mechanism of the WTO and compare it with en-

forcement mechanisms for labour, human rights, and the environment. Such comparisons inevita-

bly show the weaknesses in the enforcement mechanisms of the latter, leading to calls that the

WTO could be enlisted to enforce such standards. The cause of the human rights, labour, and en-

vironmental activists was given some support by then-President Clinton who stated at the WTOs

Seattle conference:

I believe the WTO must make sure that open trade does indeed lift living standards, re-

spects core labor standards that are essential not only to worker rights, but to human

rights. That's why this year the United States has proposed that the WTO create a working

group on trade and labor.2

Although the idea of incorporating labour standards into the WTO received continued support

from the Clinton administration and from some European countries, it was vehemently opposed

by developing countries. An Egyptian delegate to the Seattle WTO meeting stated: If you start

using trade as a lever to implement non-trade issues, that will be the end of the multilateral trading

1 The idea that the WTO could put protection of labour, human rights, and the environment in question has also

received discussion in academic literature. See, e.g., Frank J. Garcia, Trading Away the Human Rights Principle,

Brooklyn Journal of International Law 25 (Winter 1999), 51-97 William A. Dymond, Core Labour Standards

and the World Trade Organization: Labours Love Lost, Canadian Foreign Policy 8, no. 3 (Spring 2001), 99-114

J. Dunoff, Does Globalization Advance Human Rights? Brooklyn Journal of International Law 25 (Winter

1999), 125-139 Ernst-Ulrich Petersmann, Time for Integrating Human Rights into the Law of Worldwide Or-ganizations (Jean Monnet Working Paper 7/01).

2 Quoted in Clyde Summers, The Battle in Seattle: Free Trade, Labor Rights, and Societal Values, University of

Pennsylvania Journal of International Economic Law 22 (Spring 2001), 61.


6/49

Dalke: Enforcing Human Rights through the WTO: A Critical Appraisal 2

system.3

The US proposal to include labour rights in the WTO was explicitly rejected at the

Singapore WTO ministerial conference.4

Despite rejecting proposals to enforce labour standards, the WTO continues to be saddled

with calls for linking certain issues, and a variety of linkages have received wide discussion in aca-

demic literature. Linkage claims have not been limited to labour standards, but include claims that

environment, competition law, and human rights issues, among others, should be linked to theWTO. This paper considers proposals to link human rights to the WTO, using the objections of

the Egyptian delegate to Seattle as its basic framework, namely, whether human rights issues are

non-trade issues, and whether their link with the WTO would spell the end of the multilateral

trading system. The objection can be stated another way: there are both conceptual issues and

practical issues, related to both the trade and human rights regimes, that arise within proposals to

link trade and human rights, and it is those issues that this paper will address.

Proposals for Linking Human Rights and the WTO

Human rights could be linked to the WTO in a variety of ways, some of which may be stronger or

weaker than others. The discussion in this paper considers two forms of linkage. The first would

involve amending the WTO to allow individual members to use trade measures to enforce human

rights norms. The second would entail a more elaborate mechanism whereby the WTO would au-

thorize or mandate multilateral trade measures to enforce human rights norms.

This paper does not intend to articulate a detailed framework for enforcing human rights

under the WTO, nor does it intend to critique such detailed proposals.5

However, to give some

tangibility to the discussion, it may be useful to outline some of the essential features of such a

proposal. The first proposal to allow WTO members to use t rade sanctions to enforce human

rights would be quite simple, similar to the existing WTO provisions which allow trade measures

to protect national security etc., although agreement would be required on which human rightsnorms would be enforceable. The second, more aggressive, human rights enforcement mechanism

would:

favour or mandate multilateral sanctions and discourage unilateral ones

draw on an existing formulation of human rights norms

provide for collaboration with a specialised human rights body that would determine

human rights violations.6

Other commonly proposed forms of linkage include requiring that WTO members ratify the major

human rights treaties or requiring WTO members to submit human rights reports to the WTO,

similar to the reports required under the WTOs Trade Policy Review Mechanism. These propos-

als will not be evaluated in this paper. The first proposal is not particularly compelling since most

3 Egyptian representative to WTO negotiations Seattle, quoted in ibid., 62.

4 Dymond.

5For an example of such a proposal, see Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mecha-

nism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, American UniversityJournal of International Law & Policy 11 (1996): 1-46.

6 This framework is inspired by Virginia Learys proposal for enforcing labour standards under the WTO.


7/49


WTO members are already party to the major UN human rights treaties. The second proposal

would involve a process almost identical to the state party reporting required under the UN hu-

man rights treaties and would thus be unnecessarily duplicative. Additionally, this paper will not

specifically evaluate proposals to enforce labour or environmental standards under the WTO, by

far the most common forms of linkage claims. However, labour rights in particular, and the envi-

ronment more generally, do overlap with human rights, and to that extent such linkage claims willbe addressed.

1 Overview of Human Rights and Trade Regimes

1.1 The UN Human Rights Regime

Before considering the feasibility of proposals for enforcing human rights under the WTO it is

useful to understand the existing regime for the protection of human rights. The international hu-

man rights system is often viewed as being relatively ineffective. Indeed, its perceived ineffective-

ness, relative to the effectiveness of the WTO, is a key motivation for proposals to enforce human

rights under the WTO. This section outlines the legal norms and institutions of the human rights

regime and considers the implications for linkages to the WTO that arise from the nature of the

human rights regime itself.

1.1.1 Sources Of Human Rights Norms

Human rights standards derive from a mix of customary international law, declarations and resolu-

tions, and treaties. Of these sources, the most significant is the International Bill of Rights, which

comprises the Universal Declaration of Human Rights,7

the International Covenant on Eco-

nomic, Social and Cultural Rights,8

and the International Covenant on Civil and Political

Rights9

.10

The Universal Declaration of Human Rights (UDHR) is undoubtedly the most widely

known international human rights document.11

It flowed from the establishment of the United Na-

7 UNGA Res. 217 (III), UN Doc. A/810 (1948), adopted by vote 48-0, with 8 abstentions [hereinafter UDHR].

8 (1996) 993 U.N.T.S. 3, entry into force: 3 January 1976, 146 ratifications [hereinafter CESCR]. The UDHR,

CESCR, CCPR and Optional Protocol to the International Covenant on Civil and Political Rights and the Second

Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death

penalty are collectively known as the International Bill of Human Rights. There are a number of additional treatiesaddressing specific human rights issues. Most notable among these are the Convention on the Elimination of Ra-cial Discrimination [adopted in 1965, came into force in 1969, 162 parties], the Convention on the Elimination of

Discrimination against Women [adopted 1979, came into force 1981,. 170 parties], the Convention against Torture[adopted 1984, in force 1987, 130 parties], the Convention on the Rights of the Child[adopted 1989 in force 1990,

191 parties] and the International Convention on the Protection of the Rights of All Migrant Workers and Mem-

bers of Their Families. All can be found at .

9 (1996) 999 U.N.T.S. 171, entry into force: 23 March 1976, 149 ratifications [hereinafter CCPR].

10 The International Bill of Rights also includes the Optional Protocol to the International Covenant on Civil and

Political Rights and the Second Optional Protocol to the International Covenant on Civil and Political Rights,

aiming at the abolition of the death penalty.

11 UNGA Res. 217(III), UN GAOR, 3rd Sess., Supp. No. 13, at 71, adopted 10 December 1948 by vote 48-0, with 8

abstentions. The UDHRs philosophical underpinnings can be traced back to Greek and Roman philosophy, al-
http://www.unhchr.ch/html/intlinst.htm


8/49


tions. The UN was founded to ensure international peace and security, and the realization of hu-

man rights was considered integral to achieving that. Accordingly, the Charter of the United Na-

tions (UN Charter) contains many references to human rights, and identifies the realization of hu-

man rights as a purpose of the UN.12

In order to give greater definition to the human rights aspirations of the UN Charter, the

UDHR was negotiated and adopted, setting out with greater precision the human rights which theUN would strive to realize.

13However, as a UN General Assembly declaration, the UDHR is not

a legally binding instrument. While it has nonetheless contributed to the development of binding

human rights treaties, and although some of its provisions have gained the status of customary

international law,14

there was a desire to establish legally binding human rights instruments.

The UDHR recognizes both civil and political rights and economic, social, and cultural

rights. When it came to negotiating human rights treaties, it was decided to create separate in-

struments distinguished on the basis of civil and political rights and economic, social, and cultural

rights. These eventually became the Covenant on Civil and Political Rights (CCPR) and the

Covenant on Economic Social and Cultural Rights (CESCR).15

There were two major reasons

for this separation. First, it was widely held that the two sets of rights required different ap-proaches to implementation. Civil and political rights could be implemented immediately and

without cost, while economic, social, and cultural rights could be implemented only gradually.16

Similarly, some were of the view that a court-like structure should be created for civil and politi-

cal rights, but that no such mechanism would be appropriate for economic, social, and cultural

rights.17

The second reason for bifurcating human rights was political. It was thought that states

that had problems implementing economic, social, and cultural rights could at least undertake to

though the work of enlightenment philosophers such as John Locke, Jean-Jacques Rousseau, and Charles Montes-

quieu serve as more direct sources of inspiration for the modern human rights system. The modern human rightsregime finds its first legal or constitutional manifestation in the US Declaration of Independence and the FrenchDeclaration of the Rights of Man and of the Citizen.

12 H.M. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada, 6th ed., (Toronto: Ed-

mond Montgomery, 2000) at 771. In the preamble of the Charter the Peoples of the United Nations ... reaffirm

faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and

women and of nations large and small... Additionally, Article 55 of the UN Charter commits the United Nations

to promote higher standards of living, employment, and development solutions to international economic, social,

and health problems international cultural and educational cooperation and respect for human rights.

13Ibid.

14 L. Henkin, The Age of Rights (New York: Columbia University Press, 1990), 19.

15 The negotiation of human rights treaties has not been limited to the CCPR and CESCR. A number of additional

human rights treaties were negotiated, most notable of which are the Convention on the Elimination of All Forms

of Racial Discrimination, the Convention against Torture, the Convention on the Elimination of Discrimination

against Women, and the Convention on the Rights of the Child. These treaties tend generally to be more specific,

giving greater meaning to the rights enumerated in the CCPR and CESCR.

16 Asbjorn Eide, Strategies for the Realization of the Right to Food, in Human Rights in the Twenty-First Cen-

tury: A Global Challenge, edited by Kathleen E. Mahoney and Paul Mahoney (Dordrecht Boston: M. Nijhoff,

1993), 461.

17 David M. Trubek, Economic, Social, and Cultural Rights in the Third World: Human Rights Law and Human

Needs Programs, in Human Rights in International Law: Legal and Policy Issues, edited by T. Meron (Oxford-

shire: Clarendon Press, 1984), 211.


9/49


recognize civil and political rights. This concern appears to have been misplaced given that most

states have ratified both covenants.18

1.1.2 The Nature of Human Rights: Universal, Interdependent, and Indivisible

The UDHR gives concrete expression to the universality, interdependence, and indivisibility of

human rights. Universality of human rights means that all human rights must apply with some uni-formity and with equal force throughout the world.

19Interdependence of human rights reflects the

fact that the full and meaningful enjoyment of a particular right is dependent on the possession of

all the other rights.20

The indivisibility of human rights recognizes that all human rights share the

same basic characteristics.21

The UN has at least formally maintained the universality, interdependence, and indivisibil-

ity of human rights.22

Since the UDHR, innumerable resolutions have asserted the equal impor-

tance of civil and political rights and economic, social, and cultural rights.23

The Vienna Declara-

tion reaffirms the universal, indivisible and interdependent and interrelated nature of human

rights and states that the international community must treat human rights globally in a fair and

equal manner, on the same footing, and with the same emphasis.24

Nonetheless, the level of protection of economic, social, and cultural rights has never been

equivalent to that of civil and political rights. Philip Alston noted that the UN Commission [on

Human Rights] devotes about five percent of its time to economic and social rights issues other

human rights bodies usually ignore them.25

The position of most states is characterized by sup-

port for the equality of economic and social rights with civil and political rights but a failure to

entrench economic and social rights or explicitly recognize them and provide effective redress to

individuals for violations thereof. In fact, there are often deep divisions, with some taking the

18 Eide, 461.

19 Johan D. van der Vyver, Book Review: Kathleen E. Mahoney and Paul Mahoney, eds. Human Rights in the

Twenty-First Century: A Global Challenge (Dordrecht Boston: M. Nijhoff, 1993), Emory International Law Re-

view 8 (Spring 1995),798.

20Ibid.

21Ibid., 795-796. Van der Vyver argues that it is overly simplistic to merely assert categorically that human rights

are indivisible and interdependent. It is beyond the scope of this paper to consider that question, as interesting

as it may be. In any case, the human rights instruments and many declarations establish these principles as part of

international human rights law.

22 Kitty Arambulo, Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural

Rights: Can an Ideal Become Reality? U.C. Davis Journal of International Law and Policy 2 (Winter 1996), 128.

23 Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2d ed. (Ox-

ford New York: Oxford University Press, 2000), 237.

24 Adopted by the second UN World Conference on Human Rights in Vienna, UN Doc. A/CONF.157/PC/62/Add.

5 at para 5.

25 Philip Alston, Economic and Social Rights and the Right to Health: An Interdisciplinary Discussion, Session

III, remarks, Harvard Law School, September 1993, online: (date accessed: 10 July 2004).


10/49


view that economic, social, and cultural rights do not constitute rights at all, and others viewing

them as superior to, and a necessary prerequisite for, civil and political rights.26

Despite the formal equality between civil and political rights and economic, social, and

cultural rights, the institutional protection of those rights has diverged. While the CCPR provides

for the Human Rights Committee (HRC, established in 1976) to oversee its implementation, a

similar committee for the CESCR was specifically rejected.

27

The Committee on Economic, So-cial, and Cultural Rights was eventually established to monitor implementation of the CESCR but

there is still no individual complaints mechanism under the CESCR in contrast, individual com-

plaints of violations of civil and political rights may be made before the HRC under the Optional

Protocol to the International Covenant on Civil and Political Rights.28

Although there has been

considerable discussion regarding an individual complaints mechanism for the CESCR, and al-

though steps have been taken toward the negotiation of such an instrument,29

its realization is far

from certain the UN Commission on Human Rights did not renew the mandate of the independ-

ent expert who was to review the Committees proposal for an optional protocol to the CESCR.30

1.1.3 Observations on the Nature of HR and Implications for Enforcement under the WTO:Which Human Rights Would Be Enforceable under the WTO?

There is a wide range of legal entitlements that can be considered human rights and it would be

impossible to enforce all of them through the WTO. Thus, any proposal to enforce human rights

under the WTO must answer the question of which human rights could reasonably be enforced.

From a human rights perspective, the obvious answer seems to be those rights that have achieved

the widest acceptance in the international community. The rights contained in the UDHR thus

seem to be fairly good candidates. However, the UDHR, in its entirety, is not, and was not in-

tended to be, a binding human rights instrument. Its wide acceptance is perhaps explained by the

fact that it is hortatory and does not purport to be binding.

Since the rights contained in the UDHR are, for the most part, spelled out in binding

fashion in the CCPR and the CESCR, perhaps either or both of these documents could serve as

the source for the rights that would be enforced under the WTO. However, using one or either of

the CCPR or CESCR is sure to raise the long-simmering debate over whether civil and political

rights or economic, social, and cultural rights are most important. Additionally, there are many

rights enumerated in both the CCPR and the CESCR that WTO members would have difficulty

26 Steiner and Alston, 237. For example, the United States has signed but not ratified the CESCR.

27 Matthew C.R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on

its Development(Oxford: Clarendon Press, 1995), 98. The Economic and Social Council originally undertook themonitoring of CESCR. However, in 1986 the ECOSOC finally established a treaty body the Committee on Eco-

nomic, Social, and Cultural Rights, as an independent body of experts, akin to the HRC. See Martin Scheinin,

Economic and Social Rights as Legal Rights, in Economic, Social and Cultural Rights: A Textbook, edited by A.

Eide, C. Krause, and A. Rosas (Boston: Kluwer Law International, 2001), 45.

28 (1976) 999 U.N.T.S. No. 171, entered into force: 23 March 1976, 104 ratifications.

29At its 57

thSession, on 20 April 2002, the Commission adopted Resolution 2001/30 which called for the ap-

pointment of an independent expert to review the Committees proposal for an optional protocol to the CESCR.

30 UN Office of the High Commissioner for Human Rights, [date

accessed: 24 February 2004].


11/49


with. In both documents, rights are framed broadly and cover such a wide range of obligations

that it would be nearly impossible to find a state that has an unblemished record.31

To overcome such difficulties, proponents of enforcing human rights under the WTO have

proposed that only core human rights or those that have achieved jus cogens status would be

enforceable under the WTO. For example, Stirling defines as core rights the right to freedom from

discrimination, slavery, genocide, torture, and arbitrary imprisonment.

32

Similarly, the Restatement(Third) of Foreign Relations posits that customary international human rights law prohibits geno-

cide, slavery, murder or disappearance of persons, torture, prolonged arbitrary detention, racial

discrimination, or a consistent pattern of gross violations of internationally recognized human

rights.33

Garcia offers a slightly different list, arguing that rights involving life, freedom, security

and bodily integrity are core human rights.34

Carving certain core rights out from the UDHR, CCPR, or other human rights instru-

ments is attractive as a means of obtaining agreement on enforcing human rights through the

WTO, however, such an approach is no less problematic. As a practical matter, opening up a dis-

cussion within the WTO on which human rights should be enforced would leave WTO members

mired in quagmire. Existing human rights instruments were the subject of long negotiations, andopening up such a process anew would be both duplicative and contentious. It is also problematic

from a human rights perspective. The international human rights regime has consistently main-

tained, at least in theory, the position that human rights are interdependent and indivisible. To

carve out some human rights as core would be inconsistent with that logic, and may diminish

the importance of other widely recognized rights.

From a trade perspective, it would also be problematic to choose either the rights con-

tained in the UDHR or the CCPR and CESCR, or alternatively to select a group of core rights,

since those rights may not be the most trade related rights and thus may not logically fit within

the WTO. Indeed, from a trade perspective human rights are often not considered to be trade-

related in the first place, and therefore inappropriate for enforcement under the WTO.

1.1.4 Institutional Components of the Human Rights System

Institutional mechanisms for the protection of human rights under the UN system can be divided

into Charter-based and treaty-based bodies.35

The Charter-based bodies are those established un-

der the UN Charter and include the General Assembly, the Security Council, the Economic and

Social Council, and the Commission on Human Rights.36

31

See, e.g., Stirling.32Ibid., 14.

33Restatement (Third) of Foreign Relations Law 702 (1987).

34 Garcia, 86.

35 Frank Newman and David Weissbrodt, International Human Rights (Cincinnati: Anderson Publishing Co.,

1990), 3.

36 The Charter-based bodies include additional bodies authorised by the Charter-based bodies, such as the Sub-

Commission on Prevention of Discrimination and Protection of Minorities, and the Commission on the Status of

Women.


12/49


1.1.4.1 Charter Bodies

The Charter-based bodies are composed of UN member states. The General Assembly consists of

all UN members, of course, while the other bodies have more limited membership. Individual

members of the Charter-bodies sit as representatives of their home country, and generally take

positions that reflect the foreign policy of their capitals. The most relevant to the present discus-sion are: the UN Commission on Human Rights, because its mandate is most specifically related

to human rights and the Security Council, since it is the only body that can authorize and in fact

mandate enforcement action, such as economic sanctions or the use of force.

The Commission on Human Rights has primarily three mechanisms by which it protects

human rights: (1) its annual session in which resolutions on various human rights topics are de-

bated and adopted (2) the appointment of special rapporteurs with thematic or country-specific

investigative mandates and (3) a collective complaint procedure (1503 procedure).37

The Effectiveness of UN Charter Bodies

The effective implementation of the various special rapporteur mandates depends in part on the

cooperation of the target state, but also on the person of the special rapporteur. If the special rap-

porteur submits a weak report containing compilations of second-hand or uncorroborated infor-

mation, the Commission may pay little attention to the country or theme in question. The Com-

missions responses to reports by its special rapporteurs and to human rights issues more gener-

ally can often be influenced by political considerations. The 53 members of the Commission take

direction from their capitals, and alliance politics plays a significant role. Regional powers and Se-

curity Council members are able to block mandates and resolutions that might implicate their own

human rights records. Additionally, there has been a proliferation of mandates without a commen-

surate increase in the resources provided to the Commission.38

Nonetheless, the system of investi-gative mandates has attained considerable acceptance by UN member states most states cooper-

ate with the Commissions special rapporteurs, and only pariah states still invoke Article 2(7) of

the UN Charter to stave off investigative mandates.39

The collective complaints mechanism allows the Commission to pursue, with the govern-

ment concerned, situations that appear to reveal a consistent pattern of gross and reliably at-

tested violations of human rights.40

This procedure is undertaken in a closed session, a factor

which, combined with the politicization of the procedure, makes it increasingly ineffectual and

irrelevant. Schmidt argues that the procedure nonetheless has some utility: States do reply to re-

quests for detailed information about alleged consistent patterns of gross human rights violations,

37 Known as the 1503 procedure as it is governed by Economic and Social Council (ECOSOC) Resolution 1503

(XL VIII) of May 1970.

38 Markus Schmidt, Does the United Nations Human Rights Program Make a Difference? (The UN Human

Rights Regime: Is it Effective? Proceedings of the American Society of International Law, 9-12 April 1997),

American Society of International Law Proceedings 91 (1997), 462.

39Ibid.

40Ibid., 462.


13/49


and the spectre of the public procedure has prompted several of them to make some (albeit often

cosmetic) improvements.41

1.1.4.2 Treaty Bodies

The treaty-based bodies entail committees each of which is responsible for overseeing the imple-

mentation of a single UN human rights treaty. The treaty bodies are composed of independent ex-

perts who sit in their personal capacity and not as representatives of their countries.

The treaty bodies achieve their monitoring function through one or more of three ways.

First, the treaty bodies receive reports from the states parties detailing their compliance with the

treaty. The treaty bodies consider these reports and issue Concluding Observations, in which they

comment on the states compliance. Second, under the CCPR, CERD, CAT, and CEDAW, indi-

viduals may submit complaints to the treaty bodies, alleging violations of their individual rights.

The treaty bodies review these complaints and issue their views as to whether the individuals

rights were violated. Third, the treaty bodies contribute to the interpretation of human rights law

by issuing General Comments, which give greater definition to the rights enumerated in the rele-

vant treaties. The CAT and CEDAW also have an inquiry procedure whereby they may undertakemissions to states parties when the treaty body has a concern regarding systematic or grave viola-

tions of treaty rights.42

The Effectiveness of the UN Treaty System

By some measure, the UN human rights treaty system has recorded considerable success. The

treaty body system has developed quite rapidly the first treaty body, the Committee on the Elimi-

nation of Racial Discrimination, had its first meeting in January 1970. There are presently seven

committees. Additionally, ratification of the treaties has increased markedly. The treaty bodies

have greatly improved their methods of considering reports, have pioneered the issuance of Gen-

eral Comments, have developed coordination with other human rights institutions, and have in-

volved NGOs in their work.43

The provision for individual complaints has resulted in a rich body of international human

rights jurisprudence, which has been referred to by national courts and relied on in some cases.

For example, the UK Judicial Committee of the Privy Council referred to the Human Rights

Committees decisions regarding the death row phenomenon, and the Constitutional Court of

South Africa relied on the Human Rights Committees jurisprudence in declaring that capital pun-

ishment was inconsistent with the South African Constitution. The decisions of the Human Rights

Committee have often been implemented, including through amending inconsistent legislation,

releasing prisoners, or providing compensation to victims of human rights violations.44

Despite thelack of enforcement powers, treaty bodies have requested interim measures of protection under

41Ibid.

42 Anne Bayefsky, Introduction to the UN Human Rights Treaty System, online:

(date accessed 1 April 2003).

43 James Crawford, The UN Human Rights Treaty System: A System in Crisis? in The Future of UN Human

Rights Treaty Monitoring, edited by P. Alston and J. Crawford (Cambridge: Cambridge University Press, 2000), 3.

44 Schmidt, 463-464.


14/49


the individual complaints procedures, in particular, in cases of imminent extradition or execution

of capital sentences. Committees requests for stays of execution have been complied with in all

but two capital cases.45

Despite the relative success of the treaty body system, it is generally accepted that the sys-

tem is in difficulty, if not in crisis. To some extent, this difficulty is the product of its success

increased state participation has greatly increased the workload. However, there is much more tothe crisis than that.

The treaty-body system, based on voluntariness, good faith, and self-criticism by states

parties, has some obvious weaknesses. These are compounded by the sporadic reporting proce-

dure and lack of adequate follow-up of both concluding observations and individual communica-

tions.46

State party reports are often substantively inadequate, providing a recitation of laws with-

out giving any indication of the factual human rights situation.47

Crawford suggests that these

shortcomings could be mitigated by adopting such processes as state visits, ad hoc teams, and

wider dissemination of views.48

The reporting procedure also suffers from a backlog in state reports due under the various

treaties. For example, in 1998 there were 145 reports overdue to the HRC, and 134 reports over-due to the Committee on Economic, Social, and Cultural Rights.

49Sixty percent of state parties

have reports overdue under each treaty. States having the largest number of overdue reports fre-

quently include those with extremely poor human rights records, such as Togo, Liberia, the Cen-

tral African Republic, Somalia, Afghanistan, Cambodia, and Lebanon.50

There is also a considerable delay in the processing of reports and communications by the

various treaty bodies. Indeed, if all states whose reports are overdue were to actually report on

time, the committees would be unable to cope with the workload.51

This problem is compounded

by the fact that despite the increase in the number of states parties to the treaties, and thus the

number of reports and communications the committees must process, there has been no commen-

surate increase in the committees meeting times and none is expected. Little use is made of inter-

sessional time, as committee members are not paid for intersessional work and most have other

full-time commitments.52

The treaty bodies are able to spend, on average, about six hours consid-

ering a state party report. However, after lengthy oral presentations by the state party delegation,

the time left for dialogue or exchange is quite limited. State party representatives are often unable

or unwilling to answer questions directly.53

45Ibid., 464.

46 Crawford, 8.

47 Arambulo, 125.

48 Crawford, 8.

49Ibid., 4.

50 Anne Bayefsky, panel discussion, The UN Human Rights Regime: Is it effective? American Society of Interna-

tional Law Proceedings 91 (1997), 466-467.

51Crawford, 6.

52Ibid., 5.

53 Bayefsky, panel discussion, 466-467.


15/49


The committees also all suffer from serious resource constraints. In particular, the com-

mittee secretariats are understaffed and underpowered. In some acute cases, committee sessions

have been cancelled because of lack of funds. More generally, there have been restrictions on

documentation, delay in translation, and reduced field visits owing to a lack of funds.54

Philip

Alston, who chaired the Committee on Economic, Social, and Cultural Rights, provides an exam-

ple of these resource constraints, saying I myself typed about half of our report for lack of a sec-retary with word processing experience.

55

The selection process for committee members election by states parties is haphazard or

involves vote trading, thus limited account is taken of candidates qualifications.56

The treaty bodies sessions tend to be given little notice by news media and even atten-

dance by NGOs is quite limited. Bayefsky notes that the treaty bodies themselves do not devote

much energy to engaging or educating the news media. External reporting is also hampered be-

cause concluding observations are released days, and sometimes weeks, after consideration of the

report.57

1.1.5 The Nature of the UN Human Rights System and Implications for Linkage Claims

It is widely believed that the lack of enforcement power remains a principal lacuna of the UN

human rights protection system.58

Despite the publicity that the treaty bodies and the Commis-

sion can bring to human rights violations, the practice of shaming a government into compliance

does not always have the desired effect.59

The system often appears to be merely reactive, declar-

ing violations long after they occur. However, a singular focus on the UN systems lack of en-

forcement power provides an incomplete picture of the effectiveness of the system. The lack of

enforcement power is not unique to international human rights norms it is a problem in virtually

every area of international law, at least insofar as enforcement power is understood to be analo-

gous to enforcement power under domestic legal systems. Accordingly, an analysis of the effec-tiveness of the UN human rights system must go beyond assertions of its lack of enforcement

power. There are in fact a number of means by which the UN human rights system has effectively

contributed to the realization of human rights. The increasing emphasis on preventive mecha-

nisms, in particular through programs of technical cooperation and the establishment of human

rights field offices, demonstrates that the UN human rights system can achieve some measure of

success even in the absence of effective enforcement measures.60

54 Crawford, 7.

55 Philip Alston, Economic and Social Rights and the Right to Health: An Interdisciplinary Discussion, Session

III, remarks, Harvard Law School, September 1993, online: (date accessed: 5 April 2003).

56 Crawford, 9.

57Bayefsky, panel discussion, 466-467.

58Schmidt, 464.

59Ibid.

60Ibid.


16/49


Under the Voluntary Fund for Technical Cooperation in the Field of Human Rights, a

number of activities have been carried out, such as technical assistance and advisory services and

training programs for legal officials such as judges, law enforcement officers, and prison adminis-

trators, etc.61

The establishment of human rights field offices can play a critical role in preventing

human rights abuses, as they can act as an early warning mechanism for systematic human rights

violations.

62

Ultimately, assessments of the UN human rights system must be undertaken with a good

dose of political realism.63

If one examines in isolation individual programs that operate under a

perpetual shortage of resources, it is easy to draw conclusions that the system is ineffective. If,

however, one surveys the system as a whole, keeping in mind the highly politicized nature of hu-

man rights and the fact the system has been functioning for a relatively short period of time, it be-

comes apparent that considerable progress has been made.64

This overview of the effectiveness of the human rights regime reveals that it is not as inef-

fective as it is commonly seen to be. Additionally, where it currently lacks effectiveness, its short-

comings do not necessarily relate to a lack of adequate enforcement mechanisms. Articulating a

set of standards that have gained wide acceptance and bringing attention to human rights viola-tions are perhaps the greatest successes of the human rights regime, and are the areas in which

there is much promise. But efforts toward bringing greater acceptance and publicity for human

rights still fall short. Accordingly, those seeking greater realization of human rights through a link

with the WTO may find their cause better served by lobbying for greater resources for the existing

human rights institutions.

1.2 The Trade Regime under the WTO

1.2.1 Substantive Legal Obligations under the WTO Agreements

The most significant legal obligations for the purposes of this paper are contained in the three

multilateral agreements under the WTO: the General Agreement on Tariffs and Trade (GATT)

and the two side agreements, the General Agreement on Trade in Services (GATS) and the

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).65

There are also

two optional plurilateral agreements that cover government procurement and trade in civil air-

craft. The most important principle of the WTO multilateral agreements is the principle of non-

discrimination, which is manifested in the Most-Favoured-Nation (MFN) and National Treatment

obligations.66

61Ibid. at 465.

62Ibid.

63Ibid. at 466.

64Ibid.

65See, generally, John H. Jackson, William J. Davey, and Alan O. Sykes, Jr., Legal Problems of International

Economic Relations, 3rd ed. (St. Paul: West Group, 1995) Michael J. Trebilcock and Robert Howse, The Regula-tion of International Trade, 2nd ed. (London: Routledge, 1999).

66 Trebilcock and Howse, 26.


17/49


The MFN principle requires that any advantage, favour, privilege, or immunity granted to

any product or service from a given country must be granted to like products or services originat-

ing in all other member countries (GATT Article I GATS Article II TRIPs Article IV). The na-

tional treatment principle requires that once foreign goods or services have entered a members

territory, those goods must be accorded treatment no less favourable than that accorded to like

domestic products (GATT, Article III:4. GATS Article 17, TRIPs, Article 3). This applies in re-spect of all laws, regulations, and requirements regarding internal sale, and also applies to laws,

regulations, or policies which may be facially neutral but which have a discriminatory intent or

effect.67

Article XI of the GATT also prohibits the use of quantitative restrictions, including quotas

or import and export licences this is subject to some exceptions, for example, for balance of pay-

ments crises and for protection of infant industries by less developed countries.68

General import

restrictions in the form of tariffs are permitted, but under GATT Article XXVIII members recog-

nize the importance of substantially reducing the general level of tariffs and commit to negotia-

tions to reduce tariffs. Members are also prohibited under Article II from increasing negotiated

tariff reductions, known as tariff bindings. Bhagwati notes that the GATT/WTOs greatest ac-complishment has been the reduction of tariffs among OECD countries to almost negligible lev-

els69

The GATS contains MFN and national treatment obligations similar to the GATT, except

that the GATS obligations are in respect of services rather than goods. The GATS also contains

rules on competition and monopoly policy and government procurement.70

Under the TRIPs

agreement WTO members agree to provide a minimum level of intellectual property protection. In

particular, members must provide civil and administrative procedures for intellectual property

holders. TRIPs also contains MFN and national treatment obligations.71

1.2.2 Institutional Mechanisms for Enforcing WTO Obligations

The Dispute Settlement Understanding (DSU) is undoubtedly the element of the WTO that is

most attractive to those seeking more effective enforcement of human rights norms. For that rea-

son, it is worthwhile to examine in greater detail the nature of the WTO dispute settlement proc-

ess.

Where a WTO member believes that another member has not fulfilled its WTO obliga-

tions, the former may submit a complaint to the Dispute Settlement Body (DSB). Upon receipt of

a complaint, parties are given 60 days to settle their dispute. If attempts to settle are unsuccessful,

the complaining party can request the establishment of a panel. A panel consists of three to five

trade experts who make a ruling on the dispute based on the relevant WTO agreements. The

67Ibid., 27, 29.

68Ibid., 29-30.

69Jagdish Bhagwati, The World Trading System at Risk(New York: Harvester Wheatsheaf, 1991), 5 see, gener-

ally, Trebilcock and Howse, 26.

70 John H. Jackson, William J. Davey, and Alan O. Sykes, Jr., 291.

71Ibid.


18/49


panels ruling can be appealed on points of law. Appeals are heard by three members of a perma-

nent seven-member Appellate Body (AB). Members of the AB must be recognized experts in the

field of law and international trade and may not be affiliated with any government.72

The WTO Secretariat emphasises that the goal of the dispute settlement system is not to

make rulings but rather [t]o settle disputes, through consultations if possible.73

The Secretariat

notes that by mid-March 2001, 38 out of 228 cases had been settled, without going through thefull panel process.

74

When a member is found in violation of WTO obligations, it must follow the recommenda-

tions of the panel or AB. The violating party is generally required to bring its laws, regulations, or

policies into compliance with the provisions violated. If a party fails to comply after a reasonable

time, it must enter negotiations with the complaining party in order to determine mutually ac-

ceptable compensation,75

which could include a reduction in tariffs in areas of interest to the

complainant or monetary compensation. If after 20 days the parties cannot agree on compensa-

tion, the complainant may request permission from the DSB to impose limited trade sanctions

(suspension of concessions or obligations). Sanctions are, in principle, to be imposed in the same

sector as the dispute, however if this is not practical or unlikely to be effective, other action canbe taken. The Secretariat notes that the objective is to minimize the chances of actions spilling

over into unrelated sectors, while at the same time allowing the actions to be effective.76

Any trade retaliation authorised by the DSB must be limited to a compensatory level. Thus

the WTO does not envision the use of sanctions primarily as a deterrent.77

Indeed, contrary per-

haps to the views of those making linkage claims, the WTO has been described as containing

rather weak remedies. A party found in violation can continue to violate its obligations as long as

it is willing to pay compensation or face retaliation consider for example the ECs response to the

rulings in the Beef Hormones and Imported Bananas decisions.78

In fact, the WTO has no power at all to compel compliance with its rulings. Speyer de-

scribes the power of the DSB as resting on the fact that no country, no matter how powerful, is

willing to bear the cost to its reputation of consistently standing outside the body of international

72 WTO Secretariat, Trading into the Future, 2d ed. (Geneva: WTO, 2001), 39-40.

73Ibid.

74Ibid. at 38.

75Ibid. at 40.

76Ibid. at 40.

77 Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures against Foreign Environmental Prac-tices, in Fair Trade and Harmonization: Prerequisites for Free Trade? edited by J. Bhagwati and R. Hudec (Cam-

bridge, Mass.: MIT Press, 1996), 115.

78 J. Patrick Kelly, The WTO and Global Governance: the Case for Contractual Treaty Regimes, Widener Law

Symposium Journal109 (Spring 2001), 128-9. Article IXX(1) of the Dispute Settlement Understandingprovides

that a panel or the Appellate Body shall recommend that the losing party bring the impugned measure into con-

formity with the relevant agreement, while Article XXII(1) provides for compensation or retaliation as temporary

measures in the event the ruling or recommendation is not implemented in a reasonable time. Article XXII(1) fur-ther provides that full implementation is preferred to compensation or retaliation. Accordingly, it may well be con-

sistent with a members legal obligations to offer compensation or tolerate retaliation in lieu of full implementa-

tion.


19/49


trade law.79

The force of GATT law has rested in its ability to make objective legal rulings and

... in the tendency of such rulings to elicit community pressure for compliance. Ultimately GATT

law works because governments want it to work, not because they are bullied into compliance by

trade sanctions.80

Although compliance may be slow, most countries will eventually comply.

Compliance is also encouraged because any member can lodge a complaint if it can demonstrate

a prima facie violation even of only potential export interests, thus allowing a coalition of mem-bers to be assembled that together can exert significant pressure on the defendant.

81

The WTOs method of compliance puts weaker states at a disadvantage they cannot re-

alistically impose trade sanctions to the same effect as the powerful states.82

A large economy

such as the United States or the European Union, which trades with a wide array of other coun-

tries, can impose trade sanctions on imports from a given country without much suffering to its

own economy. The large economy will be likely to find an alternate source of supply at a similar

price. The small economy whose goods are excluded is, however, likely to suffer considerably

from such sanctions. It may be unable to find an alternate buyer for its exports without providing

substantial price concessions. Should the small economy attempt to impose sanctions on a large

economy, the latter is unlikely to suffer significant loss. Exports from a large economy to a smalleconomy are unlikely to be significant to the large economy in any case, and the relative scale

means that price concessions to sell the sanctioned goods to another buyer are unlikely to cause

serious disruption in the large economy. Political considerations are likely to affect a small econ-

omys manoeuvrability in the same way. Dependent on the large economy for various political

reasons, the small economy is unlikely to attempt to use economic leverage for political ends, and

would not likely be successful if it did so attempt.

Some have raised the relative power imbalance as an objection to linking human rights, the

environment, or labour with the WTO.83

However, it should be noted that the disadvantage faced

by smaller countries exists currently with respect to all WTO obligations. Increasing the range of

uses for WTO-condoned trade measures would further disadvantage small states, but it will be a

matter of degree rather than a qualitative difference. On balance, it is likely to be more advanta-

geous for small countries to have larger countries submit the imposition of sanctions to WTO dis-

ciplines than to leave it to the large countries unilateral whims.

1.2.3 The Functioning of the WTO: Implications for Human Rights Linkages

The functioning of the WTO gives rise to some observations about the viability of enforcing hu-

man rights under the WTO. First, the existing dispute settlement process is not particularly sus-

ceptible to mandating multilateral economic sanctions in the same fashion as the UN Security

79 Bernhard Speyer, Dispute Settlement: A Gem in Need of Polish and Preservation, in The World Trade Organi-

zation Millennium Round: Freer Trade in the Twenty-First Century, edited by K.G. Deutsch and B. Speyer (Lon-

don New York: Routledge, 2001), 277.

80Ibid.

81Ibid.

82 Jagdish Bhagwati, Afterword: The Question of Linkage, American Journal of International Law 96 (January

2002), 133.

83 Kelly, 127-128.


20/49


Council. WTO rulings directly affect only the parties to the dispute. Second, WTO-mandated re-

taliation is intended to compensate rather than to deter. Enforcement of human rights norms

would best be served by measures that deter human rights violations. Insofar as WTO-mandated

retaliation is compensatory, it compensates states but does not provide compensation to aggrieved

individuals. In contrast, human rights complaints mechanisms generally require individual com-

pensation.

84

The HRC, for example, in its views on individual communications, often requiresstates to compensate individuals whose rights are violated. Third, the obligation to negotiate mu-

tually acceptable compensation is not necessarily designed to end the violation. The violating

party could choose to continue non-compliant behaviour but provide compensation. Such an ap-

proach would be inimical to enforcing human rights considering the quality of interests that human

rights protect.

1.2.4 The Purpose of the WTO

A common perception of the WTO is that its fundamental purpose is the promotion of free

trade. The implication of that view is that it would be inconsistent with the purpose of the WTO

to link human rights and other non-trade matters to the WTO. There are certainly many respects

in which the WTO has reduced barriers to trade, and many of its provisions clearly relate to trade

liberalization. The most obvious is perhaps the GATT Article XI general prohibition on quantita-

tive restrictions. Additional examples are the commitment to negotiate tariff reductions (GATT

Article XXVIII) and the binding of negotiated reductions (GATT Article II). The non-

discrimination principle is also a key bulwark against protectionism.

The free trade orientation of the WTO is also reflected in the GATT preamble in which

members commit to enter into reciprocal and mutually advantageous arrangements directed to

the substantial reduction of tariffs and other barriers to trade and to the elimination of discrimina-

tory treatment in international commerce. The WTO Secretariat echoes the free trade theme ofthe preamble, with some qualification, however, stating that the central purpose of the WTO sys-

tem is to to help trade flow as freely as possible so long as there are no undesirable side

effects.85

The WTO Secretariat notes that it is not completely accurate to characterize the WTO as

a free trade institution, partly because the system allows tariffs and some other limited forms of

protection. Rather, the system is more accurately described as a system of rules dedicated to

open, fair, and undistorted competition. According to the Secretariat, the goal of fair competi-

tion is reflected in the principles of non-discrimination (MFN and national treatment), the rules on

dumping and subsidies, and the agreements on agriculture and intellectual property.86

The preamble of the Agreement Establishing the WTO also identifies sustainable devel-opment and environmental protection as objectives of the WTO. These objectives have been cited

84See, e.g., Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation

Imposed on States Parties to the Covenant, 26/05/2004, CCPR/C/21/Rev.1/Add.13, para. 16.

85 WTO Secretariat, 4.

86Ibid., 7.


21/49


in the ABs reasons in the Shrimp Turtles case. The Secretariat also adds that it is widely recog-

nized by economists and trade experts that the WTO system contributes to development.87

The view of the WTO as being primarily committed to free trade is called into question by

some commentators. One US negotiator explained that in the GATT negotiations No one was

committed to free trade, no one expected anything like it: and the term does not appear in the

GATT.

88

Steve Charnovitz notes that there is no clear statement of the WTOs mission and thatits purpose is not self-evident.

89He concludes that the WTO comprehends a mlange of pur-

poses.90

Even if one accepts that there is some ambiguity in the purpose of the WTO, it is hard to

deny that trade liberalization is one of its purposes, if not the dominant one. The purpose of the

WTO, and its relationship to human rights, can be better understood by examining the history of

its development.

2 Conceptual Issues Arising from Linkage Proposals

2.1 Common Origins of Human Rights and Trade Liberalization

The WTO as an institution by that name is relatively young it was established only in 1995.

However, the WTO subsumed the GATT and its loosely institutionalized secretariat. The GATT

was negotiated in 1947 (it became GATT 1994 upon creation of the WTO). At the time, the

GATT was intended to be a part of an International Trade Organisation (ITO) which was to be

created under the auspices of the UN. Although the ITO never came into existence, the GATT

has survived.91

The story of the GATT and the ITO is quite closely linked to the development of the in-

ternational human rights regime. Both the GATT and the human rights regime were intended to

be key components of the post-World War II international order. The post-war institution

building was designed to ensure peace and avoid another world war. In part, these institutions

were developed in response to the experience of totalitarianism.92

Both the trade and human rights

regimes share a common libertarian trait they both set limits on state action and both are

emanations of the rule of law.93

Petersmann adds that the fundamental purpose of the Bretton

Woods institutions and the ITO was to protect liberty, non-discrimination, rule of law, social

welfare and other human rights values through a rules-based international order.94

He adds that

87Ibid.

88 Dunoff, 130.

89 Steve Charnovitz, Triangulating the World Trade Organization, American Journal of International Law 96

(January 2002), 30.

90Ibid., 55.

91 Jackson, Davey, and Sykes, 295.

92Thomas Cottier, Trade and Human Rights: A Relationship to Discover, Journal of International Economic

Law 5 (March 2002), 111.

93Ibid.

94 Petersmann, 2.


22/49


the creation of separate institutions for trade, finance, human rights, etc., was based on the eco-

nomic principle of separation of policy instruments.95

This suggests that the separation was due

more to an idea of bureaucratic efficiency than a matter of principle in regards to the relationship

between human rights and trade or the economy.

The Great Depression and the pre-war period were marked by ever increasing resort to

protectionism. The post-war trade and financial order was designed to enable states to managetheir domestic economies and avoid recourse to another protectionist race-to-the-bottom. A

key element of this objective is the GATT, under which states are obligated not to impose quotas

or related import restrictions. Although the GATT did not oblige states to eliminate or reduce

other trade restrictions like import tariffs, the GATT was designed to facilitate, and make binding,

tariff concessions.96

Jackson suggests that the goal was to enhance world economic welfare and

thus increase the pie, rather than quarrel about how to divide it up.97

In this way, the GATT

was designed to promote stability. The Bretton Woods institutions pursued the same goal on the

economic side.98

However, since trade liberalization also creates dislocation as resources are

shifted to more efficient industries a commitment to liberalized trade also required a commit-

ment to provide adjustment assistance to victims of such dislocation. Dunoff describes the post-war trading order as resting upon a complex political compromise: governments would provide

unemployment compensation, adjustment assistance, and other domestic safety nets in exchange

for public support for liberalized trade.99

Although the GATT does not provide for such safety

nets, some social guarantees were envisioned in the ill-fated ITO.100

The international human

rights regime can also be seen as an integral part of the post-war compromise, and one manifesta-

tion of the guarantee of adjustment assistance. This is particularly true of economic, social, and

cultural rights, which President Roosevelt included in his vision of human rights in the post-war

order and which were also ultimately included in the UDHR.101

Economic and social rights, such

as the rights to social security and health care, guarantee a minimum level of material well-being

critical to those who may suffer dislocation as a result of trade liberalization. Other economic and

social rights, such as the right to education, give individuals the tools to adjust to and prosper un-

der increased trade liberalization.

95Ibid.

96Robert Howse, From Politics to Technocracy and Back Again: The Fate of the Multilateral Trading Regime,

American Journal of International Law 96 (January 2002), 95.

97 John H. Jackson, Afterword: The Linkage Problem Comments on Five Texts, American Journal of Interna-

tional Law 96 (January 2002), 121-122.

98 Dunoff, 130.

99Ibid. at 131. See also Michael Harts description of the Keynesian consensus in Coercion or Cooperation:

Social Policy and Future Trade Negotiations, Canada-United States Law Journal20 (1994), 351-390.

100 Virginia A. Leary, Workers Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US

Laws), in Fair Trade and Harmonization: Prerequisites for Free Trade? edited by J. Bhagwati and R. Hudec(Cambridge, Mass.: MIT Press, 1996), 197-8, citing Percy W. Bidwell and William Diebold, Jr., The United

States and the International Trade Organization, 449 International Cooperation (March 1949).

101 van der Vyver, 801-802.


23/49


Given that the GATT arose out of a concern with ensuring post-war stability, a stability

which required adjustment assistance, Dunoff concludes that the founders of the Bretton Woods

institutions and the GATT were not committed to laissez-faire or market fundamentalism. In-

stead, their commitment to liberalized trade was embedded within a commitment to a state that

was domestically interventionist.102

This view of the relationship between free trade and domestic

redistribution is consistent with empirical studies showing that states that are most open to inter-national trade also tend to have the highest rates of social spending.

103The historical motivation

for both the human rights and trade regimes indicate that neither regime is premised upon the

withering of the state.104

Despite the shared history of human rights and trade, there are some significant differences

in their evolution and in their process of law making. While trade rules developed incrementally,

through negotiations and trade-offs in trade rounds, human rights were negotiated in a relatively

comprehensive manner resulting in definite, albeit aspirational, norms. The human rights regime is

essentially top down, while the trade regime developed from the bottom up. These divergent

paths have created very different legal cultures. Additionally, the incremental development of

trade regulation allowed for the development of an effective dispute settlement system.105

An additional distinction between the trade and human rights regimes is that human rights

accord rights to individuals that can, or should be able to be, asserted against the state. In con-

trast, the WTO does not guarantee an individual right to trade indeed, the WTO does not es-

tablish or recognise individual rights at all. Obligations undertaken under the WTO can only be

vindicated at the initiative of governments through inter-governmental dispute settlement.106

In-

deed, the raison d'tre of the GATT was to help governments enter into reciprocal and mutually

advantageous arrangements directed to the substantial reduction of tariffs and other barriers to

trade and to the elimination of discriminatory treatment in international commerce.107

Nonethe-

less, if one looks beyond the mercantilist origins of international trade law, it is really intended to

benefit individuals it is ultimately individuals who are producers, traders, and consumers.108

The impetus toward trade liberalization and the movement to recognise human rights were

both borne out of the events leading up to and the aftermath of World War II. Not only do they

share a common history, they also share similar ideological underpinnings. This common history

and ideology may not be apparent in the current debates between human rights activists and pro-

ponents of trade liberalization. Nonetheless, the shared history and ideology suggest that there

may be some synergies between the recognition of human rights and the liberalization of trade.

102 Dunoff, 131-132.

103Ibid., 131.

104Ibid., 129.

105 Cottier.

106Ibid.

107 Steve Charnovitz, The Globalization of Economic Human Rights, Brooklyn Journal of International Law 25

(Winter 1999), 117-118.

108Ibid.


24/49


The shared history and the potential synergies support the view that human rights and trade are

indeed related.

2.2 Synergy between Trade and Human Rights

The recognition of human rights and the liberalization of trade are in many ways mutually rein-

forcing. Mancur Olson observes that on the one hand all countries that have enjoyed sustainedeconomic prosperity have been stable democracies, and on the other hand that democracies have a

much better track record of respect for property rights than autocracies.109

In a very direct way, trade liberalization supports the realization of basic human liberty and

dignity since economic activity and economic liberty allow for individuals to exercise their free-

dom and dignity as producers and consumers. In a more indirect way, economic liberty may lead

to increased wealth, which is a precondition for recognizing many economic, social, and cultural

rights.110

Trade liberalization can also indirectly contribute to the enforcement of human rights as

it increases contact between individuals in oppressive regimes and individuals in human rights-

observant regimes.111

The international trade and human rights regimes both require respect for the rule of law.

An increase in the rule of law in economic law is likely to lead to increased respect for the rule of

law as it relates to human rights as well.112

On the other hand, trade liberalization, even if con-

ceived of only as a strategy for economic growth, requires the rule of law and an impartial admin-

istrative and judicial system.113

Petersmann notes that an efficient market has historically depended

on the protection of individual freedoms.114

Where market decisions are based on information, one

can readily appreciate, for example, how freedom of expression is crucial to ensuring an efficient

market.

The discussion of the synergy between human rights and trade serves two purposes. It

demonstrates that trade is not necessarily a threat to the realisation of human rights. However italso demonstrates that human rights are related to trade in some fashion. The synergy between

human rights and trade does not provide a complete picture of the interaction between the human

rights and trade regimes. Dunoff notes that although the two regimes started at the same time

and with many common political commitments, they quickly assumed different trajectories. At

times they have moved promisingly in the same direction. At other times, they have intersected at

109

Mancur Olson, Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships (New York: BasicBooks, 2000), 43, 187.

110 Garcia, 59.

111Ibid., 59-60.

112Ibid., 60.

113Robert Howse and M. Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade

Organization (Montreal: Rights & Democracy, International Centre for Human Rights and Democratic Develop-

ment, 2000).

114 Petersmann, 7, see also 20-21.


25/49


cross purposes.115

Dunoffs insight leads to the question of whether human rights and trade will,

in some cases, conflict, and how that conflict should be resolved.

2.3 Is There Conflict between the WTO and Human Rights?

Conflict between trade and human rights can be assessed at both the general level and at the level

of specific rules.2.3.1 Conflict at the General Level

The human rights and trade regimes are said to conflict because they rest on conflicting normative

bases. Dunoff identifies the efficiency model as the dominant normative account of trade law,

and argues that trade law is exclusively concerned with economic efficiency and welfare.116

Hu-

man rights, on the other hand, are said to embody minimum standards of treatment in accordance

with the equal moral worth of all persons. Garcia argues that human rights are derived from the

non-utilitarian strand of liberalism and are thus matters of moral duty and principle which focus

on principles about how people are and are not to be treated, regardless of the consequences.117

Garcia notes that human rights are expressed in absolute terms and are subject neither to com-promise nor to consequential justifications.

118

The characterization of the trade and human rights regimes, by Dunoff and Garcia respec-

tively, suggests that at the general level their normative bases differ irreconcilably. While their

analyses are likely consistent with common perceptions of trade and human rights, they are

somewhat incomplete. The non-discrimination norm embodied in the WTO agreements finds its

justification in more than mere economic efficiency. The GATTs continued tolerance for tariffs

and the exceptions provided in WTO agreements all demonstrate that economic efficiency is not

the only value at play.119

Similarly, the human rights regime admits of more than individual dignity and worth as its

only justificatory basis. Some human rights norms, such as freedom of expression or the right toproperty, also have an efficiency component. Additionally, the recognition of human rights has a

utilitarian aspect, evident in Article 55 of the UN Charter which calls for universal respect for hu-

man rights as means of attaining the stability and well-being necessary for peaceful and friendly

relations among nations. Finally, although human rights norms may be expressed in absolute

terms, they are rarely recognized in practice as being absolute. In fact, they necessarily require

balancing with other human rights and with other state or private objectives this balance can le-

gitimately differ from state to state.120

Although guarantees to individual autonomy are less sus-

ceptible to balancing, they nonetheless admit of some limitations guaranteeing positive rights in

115 Dunoff, 132.

116 Garcia, 65.

117Ibid., 71-72.

118Ibid., 72-73.

119 Hart, Coercion or Cooperation, note 99 at 374.

120 Petersmann, 5 see also Howse, Technocracy, 105 but see Garcia, 75.


26/49


general, and economic, social, and cultural rights in particular, will invariably be subject to a de-

gree of balancing and trade-offs.121

2.3.2 Conflict at the Specific Level

The imposition of economic sanctions against the apartheid regime of South Africa is oft credited

as playing a role in the eventual demise of apartheid in South Africa.122

Many modern humanrights activists fear that similar sanctions would be prohibited under the trade liberalization com-

mitments of the WTO. There are, of course, countless other examples in which sanctions have

proven ineffective. Even apart from the effectiveness of human rights sanctions, however, some

activists insist on preserving a states discretion to impose sanctions as a means of expressing

moral disapprobation. It is clear that virtually all human rights-motivated trade measures would

constitute a prima facie violation of the GATT non-discrimination requirements of Articles I and

III or the Article XI prohibition against quantitative restrictions.123

Superficially then, it seems ob-

vious that there is a conflict between specific human rights and trade norms.

Conflict between norms is, however, a much more narrow concept. A conflict exists only

if there are obligations which cannot be complied with simultaneously.124 There is no conflict

where one treaty limits the exercise of a privilege or discretion provided by another treaty.125

To

establish a conflict between a human rights obligation and WTO rules, it must be shown that a

human rights norm mandates or prohibits an action that the WTO conversely prohibits or man-

dates.126

Since the principal human rights treaties do not necessarily require the imposition of eco-

nomic sanctions against human rights violators, it is difficult to conceive of a situation in which

human rights law would conflict with the WTO.127

Although they may be limited, there are some circumstances in which human rights norms

could conflict with WTO rules. Sarah Cleveland notes that major human rights treaties and jus

cogens prohibit torture and genocide and also prohibit any actions that aid or abet the commissionof such crimes. Cleveland suggests that a trade agreement that promised to provide a state with

military technology that was to be used for the purpose of committing genocide would violate the

prohibition of aiding or abetting the commission of torture or genocide.128

She notes that such a

situation is not purely hypothetical as the 1994 genocide in Rwanda was facilitated in part by large

121Charnovitz, Globalization of Economic Human Rights, 117.

122Jennifer Davis, Sanctions and Apartheid: The Economic Challenge to Discrimination, in Economic Sanc-

tions: Panacea of Peacebuilding in a Post-Cold War World? edited by D. Cortright and G.A. Lopez (Boulder:

Westview Press, 1995), 173-184.

123

Sarah Cleveland, Human Rights Sanctions and International Trade: A Theory of Compatibility, Journal of International Economic Law 5 (March 2002), 133.

124 Wolfram Karl, Conflicts between Treaties, in R. Bernhardt, ed., Encyclopedia of Public International Law,

vol. 7 (1984), 468.

125 Gabrielle Marceau, WTO Dispute Settlement and Human Rights, European Journal of International Law 13,

no. 4 (2002), 753-814, cited to , 62.

126Ibid., 62-63.

127Ibid., 81.

128 Cleveland, A Theory of Compatibility.


27/49


machete imports. She concludes that [f]or the bulk of human rights sanctions, however, treaties

and customary international law provide no clear trump card.129

The circumstances and the ex-

ample offered by Cleveland are rather narrow, and are accordingly of little practical or theoretical

import to the present discussion. Even in Clevelands narrow example, it is not clear that general

trade sanctions by states other than the exporting or importing states would be required by the

prohibition on genocide, such that a situation would arise where human rights law mandates ameasure that the WTO prima facie prohibits. Accordingly, one can reasonably conclude that it is

virtually inconceivable that human rights norms and WTO rules would clearly conflict.

The unlikelihood of conflict between human rights and WTO rules is apparent upon con-

sideration of the nature of the obligation undertaken by states in recognizing human rights. In rati-

fying human rights treaties, states undertake to recognize the human rights of individuals under

their jurisdiction.130

It is difficult to see how State X would thereby have an obligation to impose

sanctions on State Y on the basis that State Y has failed to adequately recognize the human rights

of individuals under State Ys jurisdiction. State Y may well be in violation of its obligations un-

der the relevant human rights treaty, and although in such circumstances State X may have a dis-

cretion to impose sanctions on State Y, there is no basis for asserting that State X would beobliged to do so.

The Fdration Internationale des Ligues des Droits de lHomme (FIDH) offers a broader

view of the circumstances in which human rights obligations might conflict with WTO rules.131

The FIDH notes that Article 55 of the UN Charter identifies the promotion of human rights as one

of the purposes of the UN. Under Article 56, UN members pledge to take joint and separate ac-

tion in cooperation with the Organization to achieve the UNs purpose. The FIDH espouses the

view that the UN Charter obligations to promote human rights must be interpreted in light of the

UDHR and the Covenants. The obligation under Article 56 can be seen to extend to all human

rights, rather than to the more limited set of human rights which have attained jus cogens status.

Bringing human rights protection within the purview of the UN Charter also lends human rights

measures the support of Article 103 which states that the UN Charter prevails over other conflict-

ing treaty obligations.132

The expansive view given to the hierarchy between human rights and trade obligations by

the FIDH does not appear to be widely held, however.133

It is, in any case, subject to the same

qualification as Clevelands position, namely that the obligation to promote and protect human

rights does not necessarily require the imposition of economic sanctions. The FIDH position also

admits of further criticism. Article 56 does not mandate nor does it bless unilateral action. The

pledge is to take action in cooperation with the Organization, which could be interpreted as an

129Ibid.

130 Marceau, 89 cites the ICJ judgment in Congo v. Belgium as standi

Enforcing Human Rights Through the WTO A Critical Appraisal.pdf

Documents