Better Friends than Foes? Human Rights and WTO Law

By Cailean MacLean

September 21st, the final day of the World Trade Organization (WTO) Public Forum, featured a panel jointly sponsored by ICHRP and the UN Office of the High Commissioner for Human Rights (OHCHR) discussing Human Rights and the WTO: Dispute Settlement and Trade Policy Review Mechanisms. This event brought together a large audience composed of trade delegations, lawyers, human rights actors, academics, and interested members of the public.

The panel included Sanya Reid Smith of the Third World Network, Dr. James Harrison of the Centre for Human Rights Practice at the University of Warwick, Hunter Nottage from the Advisory Centre on WTO law, and Dr. Andrew Lang of the LSE, all contributing significant expertise in human rights practice, WTO law, and legal theory on the possibilities for an international trade regime that better respects human rights.

Sanya Reid Smith pointed out that human rights bodies had recognized the potential for WTO related obligations to negatively affect human rights, in particular she drew attention to the concerns expressed by the UN Special Rapporteur on Right to Food around agreements with respect to agriculture and services affecting the right to food of vulnerable populations in less developed countries. She went on to highlight the case of the significant increase in the price of AIDS medication when licensed under patents, raising the question of whether extra-territorial human rights obligations do not constrain members from enforcing certain WTO obligations when they may undermine human rights in other countries. In this connection, she expressed concern over recent suggestions by US and EU trade representatives that seemed to suggest 2016 as a deadline for LDCs transition into full TRIPS (Trade Related Intellectual Property Rights) compliance despite provisions such as in Article 66.1 that allows LDCs a 10 year transition period (as well as further extensions following a ‘duly motivated request’). Such provisions, being vital in ensuring access to medicines and safeguarding the right to health in LDCs, should also be seen as important avenues to realise the extra-territorial responsibilities of developed countries.

Hunter Nottage invited critical consideration of whether dispute settlement was indeed the ideal conduit for streaming human rights issues into the WTO. Despite the admission by the appellate body (AB) in US Gasoline that it cannot ignore public international law and that WTO law does not exist in clinical isolation, he noted that the threshold for considering such laws was very high. In EC Biotech the use of the precautionary principle, despite being widely referred to (see the Rio Declaration) and applied (see Blue Fin Tuna) in international legal contexts, was rejected on the grounds that it did not reflect clearly crystallized norms of general customary international law nor was it so clarified by an authoritative international body. These findings only led to further questions. Are human rights law norms capable of “precise definition and content”? For instance, what precisely does a right to health or a right to development mean and which international body is actually mandated to authoritatively clarify it?

Mr. Nottage also noted that the AB has clearly stated that WTO Dispute Settlement Bodies cannot adjudicate in matters of non-WTO law. In Mexico Soft drinks, for example, Mexico’s defense of a violation of WTO norms to ensure compliance with its obligations under NAFTA was rejected. Strangely, at the same time a WTO Panel considering a dispute between the USA and Indonesia over import of clove cigarettes utilized the WHO Framework Convention on Tobacco Control to “corroborate and reinforce” its own understanding. Mr Nottage urged consideration of the legislative process to advance a human rights agenda, noting the concessions made with respect to patent exemptions in TRIPS or the Kimberly (conflict diamonds) waiver, which were a resulted political pressure rather than dispute related jurisprudence.

Dr. Lang focused primarily on what he characterized as the tensions within the WTO between functionalist and systemic integrationalist approaches to law. The former prioritizes the belief that the WTO has a duty to its 1994 trade-centric mandate and leaves conflict of law issues to the political realm. The latter argues that the body should recognize itself and the WTO as a creation of international law and thus be more open to an evolutionary interdependent view of its legal rulings. Dr. Lang himself attempted to balance the two, acknowledging the fidelity owed by the WTO panel and appellate body to its role as a trade dispute mechanism while simultaneously considering their place in the international legal order.

A legal basis for this middle ground may be found by focusing on the duties imposed by article 31.1 of the Vienna Convention on the Law of Treaties. This calls for treaties, including the founding documents of the WTO and the AB, being interpreted “in context and in the light of its object and purpose.” The AB should play a more investigative role as to the reasons and rational behind legal norms established by treaty. He acknowledges that this raises the specter of judicial activism, the primary reason the court has thus avoided this teleological approach, but felt that the level of textual resources in treaty creation focuses the court on a limited, manageable approach. With this as a basis, the court can utilize its role to providing reasoned analysis of the underlying goals and purposes of WTO texts and jurisprudence and view them in the context of competing legislation.

The final speaker, Dr. Harrison, saw human rights as analytical tools for approaching justice issues in trade, particularly in regards to the WTO dispute resolution process. Much debate between human rights lawyers and trade lawyers stems from an argument over supremacy; which norms, treaties, or obligations trump others. This has often become a legalistic debate where human rights lawyers claim the supremacy of their norms while trade lawyers fail to see their compatibility with trade requirements. As an example Dr. Harrison spoke about Suez v. Argentina, an investment case concerning rising prices at foreign owned private water companies. In the reasoning, the court barely touched on the disparity between the right to water and the right to financial returns for investors, merely noting that Argentina had an obligation to both trade and human rights law without any real exploration of the rights to water or to utilize human rights norms as a problem solving tools. What is the right to water? Under what circumstances could it allow price controls?

Instead trade law and treaties can and should be utilized as analytical tools, ideally utilized on a case-by-case analysis. Human rights norms and understandings can thus be used to distinguish between actions designed to uphold human rights guarantees and protectionism disguised in human rights language. Additionally while trade law often seems to occupy its own world, observed violations of human rights norms can greatly undermine the legitimacy of such treaties, a situation undesirable to both proponents of trade and human rights. An ideal example of human rights analysis utilized with international trade cited by Dr. Harrison is the recent Canada-Columbia Free Trade Agreement (FTA). The FTA agreement was paired with required annual reports as to the effect of the agreement on human and environmental rights allowing constant analysis and political feedback on trade-human rights interaction.

The question and answer period showed an audience concerned with a wide variety of WTO - Human Rights issues. Debate proved lively and left the door open for further research into this underexplored but vital issue.

About the Author:

Cailean MacLean is a 2011 Research Intern at the International Council on Human Rights Policy. He recently graduated from the University of Kent, Brussels School of International Studies with an LL.M. in International Law and Relations.

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