Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Double Agents, Discrimination, Duress and Doha: A Review of Trade and Human Rights since the China – Publications and Audiovisuals Decision

Document Cited authorities 7 Cited in Related
Vincent
Date01 September 2011
Published date01 September 2011
Pages283-306
AuthorGillian Moon
DOI10.3366/ajicl.2011.0013
INTRODUCTION

In January 2010, the first decision of the dispute settlement system of the World Trade Organization (WTO) dealing with restrictions imposed for reasons of ‘public morals’ on trade in goods was handed down. Article XX of the General Agreement on Tariffs and Trade (GATT) is a general exceptions clause and it includes a subclause which legitimates otherwise non-complying domestic measures introduced for the protection of public morals. Human rights advocates have long wondered about the extent to which public morals might be said to include human rights, but until this year the phrase had not been the subject of any determination. It is for this reason that the China – Publications and Audiovisuals1

China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual Products), WT/DS363/AB/R (19 January 2010).

decision invites a review of the extent to which the general exceptions provision in article XX of GATT and, specifically, the public morals clause on which the dispute turned, might legitimate or protect domestic human rights measures which unlawfully affect trade. This is often referred to as policy space, a term describing the scope or freedom which governments have to address domestic policy issues and problems in their own ways. Human rights policy is an important area of legislative responsibility for the 153 member states of the WTO, all of which bear legal obligations under a multiplicity of human rights treaties

The decision also provides an opportunity to conduct a wider review of the extent to which WTO law as a whole preserves adequate human rights policy space, and the second part of this paper explores that question. Both the review of article XX and that of WTO law as a whole are undertaken in the context of the human rights obligations of developing country members of the WTO, particularly their obligations regarding economic and social rights. The basis for this is a conviction that the human rights measures most likely to come into conflict with WTO law are those seeking to protect and improve the standards of living of the very poor.

<a href="https://international.vlex.com/vid/general-agreement-on-tariffs-851194131">GATT</a> article XX

Part of the GATT agreement which came into force in 1947, article XX contains general exceptions to the GATT rules.2

There are other exceptions to GATT rules and the later General Agreement on Trade in Services (GATS) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) each contain similar general exceptions clauses, but this article focuses only on GATT article XX.

The provision is in two principal parts. The first lists 10 areas of non-trade domestic policy, of which three have been the subject of substantial consideration by the WTO dispute settlement system (panels and the Appellate Body). Article XX(b) allows measures necessary for the protection of human, animal or plant life or health. Article XX(g) permits measures directed at the conservation of exhaustible natural resources, subject to certain conditions. Article XX(d) allows measures necessary to ensure compliance with other laws or regulations which are not in themselves inconsistent with GATT rules. Since the decision in China – Publications and Audiovisual Products, article XX(a) can now be added to this group. Article XX(a) permits domestic measures which are ‘necessary for the protection of public morals’. The second principal part of article XX, known as the ‘chapeau’, imposes certain authenticity-related requirements on non-compliant domestic measures seeking protection. Measures must not be ‘applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries’ nor be ‘disguised restriction[s] on international trade’

Neither GATT article XX nor any other part of WTO law contains any express reference to human rights. From an international law perspective, this should not cause much surprise since WTO law is silent on its relationship with most other bodies of international law. However, Pauwelyn argues that WTO law stands out for its lack of a general conflict clause or other statement dealing expressly with the relationship between its rules and other rules of international law.3

Pauwelyn compares the WTO Dispute Settlement Understanding, which establishes and sets out the terms of operation of the Dispute Settlement System, unfavourably with UNCLOS, article 311 of which contains quite detailed regulation of its relationship with other rules of international law: J. Pauwelyn, Conflict of Norms in Public International Law, Cambridge University Press (2003), p. 26.

That said, international human rights law is equally silent on its relationship with WTO law. Neither expressly acknowledges the existence of the other. This is in some ways puzzling, given their common post-war origins and common development objectives.4

Both the preamble to GATT and the preamble to the 1994 Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) committed the Contracting Parties or Members to a trading system which would contribute to the objectives of ‘raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand’. It has often been noted how similar these objectives appear to be to those in the 1945 United Nations Charter, in which the UN member countries committed themselves to promoting ‘higher standards of living, full employment, and conditions of economic and social progress and development’: Charter of the United Nations, article 55(a).

 Yet it must be recalled that, being primarily contract-based, international law does not really lend itself to the integration of its many fields.5

Some assistance is given, of course, by the Vienna Convention on the Law of Treaties 1966, and by the supplementary rules of interpretation in customary international law. For a detailed consideration of this issue, see International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, in International Law Commission, Report on the Work of its Fifty-eighth Session, United Nations (1 May–9 June and 3 July–11 August 2006), pp. 400–23.

 It should also be recalled that, at the time the GATT came into force in 1947, there were no multilateral human rights treaties, the Universal Declaration of Human Rights being yet a year away and the principal international human rights instruments at least two decades away.6

Possible exceptions are the early instruments of the International Labour Organization and the treaties introduced after World War I, dealing with the protection of minorities in Europe.

 There was little domestic law or policy, either, which could be said to deal with human rights as such The human rights context

The core group of international human rights law instruments which make up the so-called International Bill of Rights are:

The non-binding Universal Declaration of Human Rights (UDHR), a 1948 resolution of the UN General Assembly which sets out the human rights and fundamental freedoms of all individuals and peoples, as resolved by the international community of nations at that time. Some principles in the UDHR probably express, or have since become principles of, customary international law and may possibly be classed as jus cogens, such as the prohibition on racial discrimination.

The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976, is a multilateral, binding treaty. It defines and guarantees a variety of civil and political rights and freedoms, with regard to which it imposes immediate and absolute obligations (‘states shall’) on signatory states. The human rights which must be assured include the right to life, to freedom of movement, to freedom of thought, conscience, religion and expression, to associate and form trades unions, and to take part in public affairs, including through voting.7

International Covenant on Civil and Political Rights 1966 (ICCPR), articles 6, 12, 18–19, 22 and 25.

The ICCPR also guarantees a number of freedoms, including freedom from slavery, torture, arbitrary arrest and incitement to racial hatred.8

Ibid., articles 8, 7, 9 and 20.

 States must carry out their obligations under the ICCPR in a non-discriminatory manner.9

Ibid., article 2(1).

The International Covenant on Economic, Social and Cultural Rights (ICESCR), which also came into force in 1976 and is a binding, multilateral treaty, guarantees basic labour rights and the rights to education, the highest attainable standard of health, an adequate standard of living (including food), social security, protection of the family and to take part in cultural life.10

International Covenant on Economic, Social and Cultural Rights (ICESCR), articles 6–15.

Under the ICESCR, states’ obligations are for the ‘progressive realisation’ of the rights in the Covenant, to the maximum of available resources.11

Ibid., article 2.1.

 The nature of the obligation placed on signatory states under the ICESCR may be interpreted as having a ‘deferrable’ quality to it, deriving from its deference to resource constraints (‘available resources’) and to the practical need for staged (‘progressive’) realisation. This could mean that the extent of the human rights policy space required by a WTO member country to meet its obligations at any given point in time is not distinct or fixed. Given that it is the economic and social rights which are most likely to come into conflict with trade law and policy, this will be of significance in identifying whether human rights policy space is adequately protected by article XX. However, the quality of deferability in the ICESCR should not be overstated. As the Committee on Economic, Social and Cultural Rights has explained, there are also elements of the obligation which are immediate and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT